Section 96 of the Code of Civil Procedure: Scope and powers of the first appellate Court explained by the Supreme Court

 JUDGMENT IN REVIEW

Expounding on the scope and powers of the first appellate Court under Section 96 of the Code of Civil Procedure in Shasidhar & Others v. Smt. Ashwini Uma Mathad & Anr. [Civil Appeal No. 324 of 2015], a Bench of the Supreme Court comprising of Justice Fakkir Mohamed Ibrahim Kalifulla and Abhay Manohar Sapre vide its judgment dated 13.01.2015 affirmed and reiterated the ratio laid down in a judgment rendered by Justice V.R. Krishna Iyer (while he was a judge of the High Court of Kerala) reported in Kurian Chacko vs. Varkey Ouseph, AIR 1969 Kerala 316, wherein Justice Krishna Iyer, reminding the first appellate Court of its duty as to how the first appeal under Section 96 should be decided, said : “An appellate court is the final Court of fact ordinarily and therefore a litigant is entitled to a full and fair and independent consideration of the evidence at the appellate stage. Anything less than this is unjust to him..” 

Supreme Court of India

The Bench was hearing an appeal filed by the defendants against the judgment and order dated 06.12.2012 passed by the Division Bench of the High Court of Karnataka Circuit Bench at Dharwad in Regular First Appeal No. 3052 of 2010, which in turn arose out of the judgment and decree dated 10.02.2010 passed by the 1^st Additional Civil Judge (Sr. Division) at Hubli in Original Suit No. 73 of 2004.

By judgment and decree dated 10.02.2010, the trial Court partly decreed the plaintiffs’ suit and accordingly passed preliminary decree in relation to the suit properties. It was held that plaintiffs are entitled for partition and separate possession of their 1/6th share each in some properties specified in the decree whereas 1/10th share each in other suit properties as specified in the decree.

Dissatisfied with the preliminary decree, the defendants filed first appeal being R.F.A. No. 3052 of 2010 and the plaintiffs filed cross objections being R.F.A. CROB No. 103 of 2011 under Order XLI Rule 22 of the Civil Procedure Code, 1908 (in short “the Code”). Thus the entire preliminary decree became the subject-matter of first appeal filed by the defendants.

By the impugned judgment and order dated 06.12.2012, the Division Bench of the High Court disposed of the appeal and cross objections and modified the judgment and decree of the trial court to the detriment of the defendants

The defendants in appeal before the Supreme Court assailed the judgment of the High Court saying that it had disposed of the first appeal in a cryptic manner without adverting to all the factual details and various grounds raised in the first appeal. The appellants through their Counsel contended that the High Court neither dealt with any issue nor appreciated the ocular and documentary evidence adduced by the parties nor examined the legal principles applicable to the issues arising in the case and nor rendered its findings on any contentious issues though urged by the appellants herein in support of the appeal. The appellants’ counsel further contended that it was the duty of the High Court being the first appellate Court exercising its appellate power under Section 96 read with Order XLI Rule 31 of the Code to have dealt with the submissions, which were urged by the appellants after appreciating the entire evidence on facts, independent of the findings recorded by the trial Court and should have come to its own conclusion keeping in view the legal principles governing the issues and since it was not done by the High Court, the impugned judgment is not legally sustainable.

The Court surveying authorities on the matter at hand, said that the powers of the first appellate Court, while deciding the first appeal under Section 96 read with Order XLI Rule 31 of the Code, are indeed well defined by various judicial pronouncements of this Court and are, therefore, no more res integra.

The Bench extracted the relevant passage of the decision reported in Santosh Hazari vs. Purushottam Tiwari (Deceased) by L.Rs. (2001) 3 SCC 179 wherein the Apex Court said

 “.……..the appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court……while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it…………” 

Writing the judgment for the Bench, Justice Abhay Manohar Sapre said that the above view has been followed by a three- Judge Bench decision of the Court in Madhukar & Ors. v. Sangram & Ors.,(2001) 4 SCC 756 wherein it was reiterated that sitting as a court of first appeal, it is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings.

In H.K.N. Swami v. Irshad Basith, (2005) 10 SCC 243 the Apex Court Court (at p. 244) stated as under: 

“3. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title.” 

The Court also referred to Jagannath v. Arulappa & Anr., (2005) 12 SCC 303 wherein, while considering the scope of Section 96 of the Code the Apex Court (at pp. 303-04) observed as follows: 

“2. A court of first appeal can reappreciate the entire evidence and come to a different conclusion……...” 

In B.V Nagesh & Anr. vs. H.V. Sreenivasa Murthy, (2010) 13 SCC 530 the Apex Court taking note of all the earlier judgments of this Court reiterated the aforementioned principle with these words: 

“3. How the regular first appeal is to be disposed of by the appellatecourt/High Court has been considered by this Court in various decisions. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court shall state: 

(a) the points for determination; 

(b) the decision thereon; 

(c) the reasons for the decision; and 

(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.

4. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179 at p. 188, para 15 and Madhukar v. Sangram, (2001) 4 SCC 756 at p. 758, para 5.) 

5. In view of the above salutary principles, on going through the impugned judgment, we feel that the High Court has failed to discharge theobligation placed on it as a first appellate court. In our view, the judgment under appeal is cryptic and none of the relevant aspects have even been noticed. The appeal has been decided in an unsatisfactory manner. Our careful perusal of the judgment in the regular first appeal shows that it falls short of considerations which are expected from the court of first appeal. Accordingly, without going into the merits of the claim of both parties, we set aside the impugned judgment and decree of the High Court and remand the regular first appeal to the High Court for its fresh disposal in accordance with law.” 

The Bench said that the aforementioned cases were all referred to and relied upon by the Court while reiterating the same principle in State Bank of India & Anr. vs. Emmsons International Ltd. & Anr., (2011) 12 SCC 174.

Applying the aforesaid principles to the facts of the case, the Supreme Court found that the High Court while deciding the first appeal failed to keep the aforesaid principle in consideration and rendered the impugned decision. The Bench found that “the High Court did not deal with any of the submissions urged by the appellants and/or respondents nor it took note of the grounds taken by the appellants in grounds of appeal nor took note of cross objections filed by plaintiffs under Order XLI Rule 22 of the Code nor made any attempt to appreciate the evidence adduced by the parties in the light of the settled legal principles and decided case laws applicable to the issues arising in the case with a view to find out as to whether the judgment of the trial Court can be sustained or not and if so, how, and if not, why?”

“Being the first appellate Court, it was, therefore, the duty of the High Court to decide the first appeal keeping in view the scope and powers conferred on it under Section 96 read with Order XLI Rule 31 of the Code mentioned above. It was unfortunately not done, thereby, causing prejudice to the appellants whose valuable right to prosecute the first appeal on facts and law was adversely affected which, in turn, deprived them of a hearing in the appeal in accordance with law”, the Bench held.

Accordingly, the Supreme Court allowed the appeal preferred by the defendants in the suit, set aside the impugned and remanded the case to the High Court for deciding the first appeal and cross-objections afresh, keeping in view the principle of law laid down by the Court.

[Editor's Note: Reference to facts of the case in detail has been avoided in this report in view of the fact that the Hon'ble Supreme Court did not adjudicate on merits of the matter.]