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..”
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| 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 1st 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.]
