The Procedural Bridge: An Analysis of Order XLII Rule 1 of the Code of Civil Procedure, 1908, and its Application of Order XLI to Second Appeals in India
Introduction
The Code of Civil Procedure, 1908 (CPC) meticulously lays down the procedural framework governing civil litigation in India. Within this framework, appeals play a crucial role in ensuring judicial scrutiny and rectifying errors of lower courts. Order XLII Rule 1 of the CPC specifically addresses the procedure for appeals from appellate decrees, commonly known as second appeals. This provision serves as a procedural bridge, stipulating that the rules of Order XLI (Appeals from Original Decrees) shall apply, "so far as may be," to second appeals. The significance of Order XLII Rule 1 lies in its interplay with Section 100 of the CPC, which circumscribes the scope of second appeals to those involving a "substantial question of law." This article aims to provide a comprehensive analysis of Order XLII Rule 1, examining its scope, the implications of the phrase "so far as may be," and the judicial interpretation of how various rules of Order XLI are adapted and applied to the distinct nature of second appeals in India.
Legislative Framework: Order XLII Rule 1 and its Context
Order XLII of the CPC, titled "Appeals from Appellate Decrees," contains a single pivotal rule. Rule 1 states:
"1. Procedure.—The rules of Order XLI shall apply, so far as may be, to appeals from appellate decrees."
The core import of this rule is the wholesale adoption of the procedural machinery prescribed for first appeals (Order XLI) for the conduct of second appeals. However, this adoption is not absolute; it is qualified by the crucial phrase "so far as may be." This phrase acknowledges that second appeals, governed by the stringent conditions of Section 100 CPC, possess a character distinct from first appeals. Section 100 CPC, particularly after its amendment in 1976, restricts the High Court's jurisdiction in second appeals to hearing only those cases that involve a substantial question of law, which must be formulated in the memorandum of appeal. This jurisdictional limitation profoundly influences how the rules of Order XLI are to be understood and applied in the context of second appeals. As the Supreme Court has repeatedly emphasized, such as in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar And Others (1999 SCC 3 722), a second appeal is a statutory right and must strictly adhere to the conditions set forth, primarily the existence of a substantial question of law.
Application of Key Order XLI Rules in Second Appeals via Order XLII Rule 1
By virtue of Order XLII Rule 1, various provisions of Order XLI become applicable to second appeals. The manner of their application, however, is often modulated by the overarching requirement of Section 100 CPC.
Form of Appeal and Memorandum (Order XLI, Rules 1-3)
Order XLI, Rule 1 mandates that every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader, accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded. For second appeals, this means the memorandum must be accompanied by certified copies of the decrees and judgments of both the trial court and the first appellate court. Crucially, as per Section 100(3) CPC, the memorandum of a second appeal must precisely state the substantial question(s) of law involved. The appeal is preferred against a decree, not mere findings, as indicated in Thakurdas & Ors. v. Lakhan Singh & Ors. (2013 SCC ONLINE MP 1675), where appellants aggrieved only by findings were permitted to withdraw the second appeal.
Condonation of Delay (Order XLI, Rule 3A)
Order XLI, Rule 3A provides that when an appeal is presented after the expiry of the period of limitation, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the court that he had sufficient cause for not preferring the appeal within such period. This provision is squarely applicable to second appeals. The Madras High Court in C.Uma v. Saraswathi (Madras High Court, 2023) dealt with a Civil Miscellaneous Petition filed under Order XLI Rule 3A and Order XLII Rule 1 CPC to condone a significant delay in filing a second appeal, ultimately dismissing it for lack of sufficient cause. The mandatory or directory nature of this rule has also been a subject of judicial discussion, as seen in State Of Raj v. Vijay Singh Etc. (Rajasthan High Court, 1986).
Stay of Proceedings and Execution (Order XLI, Rules 5-8)
The powers of the appellate court to grant a stay of proceedings under the decree or of execution of such decree, as detailed in Order XLI, Rule 5, are available to the High Court hearing a second appeal. The conditions for granting such a stay, including the requirement to show substantial loss and furnish security, would apply.
Procedure on Admission of Appeal (Order XLI, Rules 9-15)
A significant provision is Order XLI, Rule 11, which empowers the appellate court to dismiss an appeal summarily if it finds no prima facie substance. In the context of second appeals, this translates to dismissal if the court is satisfied that no substantial question of law arises. The Allahabad High Court in Shripal v. Bhartiya Jain Milan Hospital Sardhana And 3 Others (2024 AHC 180635) dismissed a second appeal under Order XLI Rule 11 CPC, finding no substantial question of law. The Calcutta High Court in Anup Kumar Biswas & Ors. v. Babul Kumar Biswas (2003 SCC ONLINE CAL 91) noted that every appeal, including those from appellate decrees by reason of Order XLII Rule 1, is required to be set down for hearing under Order XLI Rule 11 CPC, unless specifically exempted. Section 100(4) CPC further mandates that where the High Court is satisfied that a substantial question of law is involved, it shall formulate that question.
Procedure at Hearing (Order XLI, Rules 16-29)
While general hearing procedures apply, the scope of argument and consideration in a second appeal is restricted.
Re-appreciation of Evidence: A fundamental distinction arises here due to Section 100 CPC. While a first appellate court (under Order XLI) can re-appreciate evidence and come to its own conclusions on facts, a second appellate court generally cannot. Its jurisdiction is confined to substantial questions of law. The Supreme Court in Veerayee Ammal v. Seeni Ammal (2002 SCC 1 134) reiterated that High Courts cannot revisit factual findings in second appeals unless they are perverse or based on no evidence. This principle was also affirmed in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar And Others (1999 SCC 3 722) and Narayanan Rajendran And Another v. Lekshmy Sarojini And Others (2009 SCC 5 264), where the Court emphasized that factual determinations by lower courts are final unless a substantial legal issue warrants intervention. The reference in H.K.N Swami v. Irshad Basith (Dead) By Lrs. (2005 SCC 10 243) to an appellate court abruptly concluding on title without proper findings also touches upon the expected standards of appellate review, though primarily in first appeal.
Additional Evidence (Order XLI, Rule 27): This rule allows parties to produce additional evidence in the appellate court under specified circumstances (e.g., if the lower court refused to admit evidence which ought to have been admitted, or if the appellate court requires it to enable it to pronounce judgment, or for any other substantial cause). In second appeals, the scope for admitting additional evidence under Order XLI, Rule 27 (read with Order XLII, Rule 1) is considerably narrower. The Allahabad High Court in Shripal v. Bhartiya Jain Milan Hospital (2024 AHC 180635) noted that documents not part of the trial or first appellate court record cannot be considered in second appeal unless an application under Order XLI Rule 27 CPC read with Order XLII Rule 1 CPC is filed and allowed. The Gauhati High Court in D.Agarwalla v. B.Devi Agarwalla (Gauhati High Court, 1989) also discussed the power of the appellate court to allow additional evidence under Order XLI Rule 27 and Order XLII Rule 1, emphasizing it is for removing a lacuna or for any other substantial cause.
Cross-Objections (Order XLI, Rule 22)
Order XLI, Rule 22 allows a respondent, though he may not have appealed from any part of the decree, to not only support the decree on any of the grounds decided against him in the Court below, but also take any cross-objection to the decree which he could have taken by way of appeal. This provision applies to second appeals. The Supreme Court in Choudhary Sahu (Dead) By Lrs. v. State Of Bihar (1982 SCC 1 232) clarified the scope of Rule 22, noting it does not permit respondents to challenge the decree itself without filing an appeal or cross-objection. In Mahant Dhangir And Another v. Madan Mohan And Others (1987 SCC SUPP 1 528), the Supreme Court examined the maintainability of cross-objections under Order XLI, Rule 22 in conjunction with Rule 33, holding that the High Court erred in dismissing a cross-objection as not maintainable and should have considered it.
Power of Appellate Court (Order XLI, Rule 33)
Order XLI, Rule 33 confers wide powers on the appellate court to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require. This power can be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection. While this rule is applicable to second appeals, its exercise must be consistent with the limitations of Section 100 CPC. The Supreme Court in Banarsi And Others v. Ram Phal (2003 SCC 9 606) held that an appellate court cannot modify a decree in favour of a respondent who has not filed a cross-appeal or cross-objection, particularly if the reliefs are separable. Similar considerations regarding the appellate court's power under Order XLI Rule 33 were discussed in K. Muthuswami Gounder v. N. Palaniappa Gounder (1998 SCC 7 327) and Choudhary Sahu (Dead) By Lrs. v. State Of Bihar (1982 SCC 1 232). The power is discretionary and aimed at doing complete justice between the parties.
Judgment and Decree in Appeal (Order XLI, Rules 30-32, 35, 37)
The requirements for the content of an appellate judgment under Order XLI, Rule 31 (points for determination, decision thereon, reasons for decision) are applicable to second appeals. The judgment in a second appeal must specifically address the substantial question(s) of law formulated. The Allahabad High Court in Bhagirath v. Ram Chandra And Others (Allahabad High Court, 2019), while discussing the duties of a first appellate court, emphasized the imperative need for the appellate court to appreciate evidence and decide the appeal keeping in view the scope and powers conferred by Section 96 read with Order XLI Rule 31. These principles of reasoned decision-making are equally vital for second appellate judgments, focusing on substantial questions of law.
The "So Far As May Be" Conundrum: Adapting Order XLI to the Constraints of Section 100 CPC
The qualifying phrase "so far as may be" in Order XLII Rule 1 is the linchpin for harmonizing the general procedural rules of first appeals with the specific, limited jurisdiction of second appeals. It signifies that rules from Order XLI are to be applied unless their application would be inconsistent with the special character of second appeals, particularly the limitations imposed by Section 100 CPC.
The most significant adaptation arises in the context of factual review. While Order XLI implicitly permits a full review of evidence by the first appellate court, Section 100 explicitly bars re-appreciation of facts in a second appeal unless findings are perverse or based on no evidence. Thus, provisions of Order XLI that might suggest an untrammeled power to review facts (e.g., the general power to "determine a case finally" under Rule 24, or to "frame issues and refer them for trial" under Rule 25) must be read down in second appeals. The focus must remain on substantial questions of law (Veerayee Ammal v. Seeni Ammal, 2002 SCC 1 134; Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, 1999 SCC 3 722; Narayanan Rajendran And Another v. Lekshmy Sarojini And Others, 2009 SCC 5 264).
Analogous Provisions: Order XLIII Rule 2 CPC
The legislative scheme of adopting procedural rules from one part of the CPC to another is not unique to Order XLII Rule 1. Order XLIII Rule 2 CPC, for instance, states that the rules of Order XLI shall apply, so far as may be, to appeals from orders. The Bombay High Court in Shivaji Shankar Jadhav & Anr. v. Laxman Gajanan Godbole (Bombay High Court, 2018) noted that under sub-rule 2 of Order XLIII, the procedure of Order XLI is adopted for appeals filed under Order XLIII. The Calcutta High Court in Anup Kumar Biswas & Ors. v. Babul Kumar Biswas (2003 SCC ONLINE CAL 91) also drew this parallel. Such analogous provisions reinforce the understanding that when a set of procedural rules is imported, it is done with the necessary adaptations suitable for the specific type of proceeding to which they are being applied.
Specific Scenarios and Judicial Interpretations
The application of Order XLII Rule 1 can also be seen in specific contexts. For example, the Allahabad High Court in Sri Ram Krishna Vivekanand Shishu Niketan v. Onkarnath (Allahabad High Court, 2019) considered arguments regarding whether a second appeal would lie against an order recording a compromise, referencing Order XLIII Rule 1-A read with Order XLII Rule 1 CPC and Section 100. Furthermore, the general applicability of appeal provisions (Orders XLI to XLV) is subject to specific exclusions, such as those mentioned in Order L CPC concerning certain Small Cause Courts, as noted in Om Prakash Agarwal Since Deceased Through Legal Representatives And Others v. Vishan Dayal Rajpoot And Another (Supreme Court Of India, 2018).
Conclusion
Order XLII Rule 1 of the Code of Civil Procedure, 1908, plays a crucial, albeit seemingly simple, role in providing the procedural architecture for second appeals in India. By incorporating the rules of Order XLI "so far as may be," it ensures a comprehensive procedural framework while allowing for necessary modifications dictated primarily by the jurisdictional constraints of Section 100 CPC. The judiciary has, through consistent interpretation, emphasized that this adoption means Order XLI rules apply unless they conflict with the fundamental nature of a second appeal, which is to adjudicate only upon substantial questions of law. The phrase "so far as may be" thus acts as a dynamic interface, ensuring that while procedural regularity is maintained, the unique and limited scope of second appeals is respected, thereby balancing the pursuit of justice with the need for finality and judicial economy.