Gujarat High Court
Arjan Naran (Decd) Through Legal Heirs vs Jedibai on 3 November, 2011
Author: C.L. Soni
Bench: C.L. Soni
ARJAN NARAN (DECD) THROUGH LEGAL HEIRS....Appellant(s)V/SJEDIBAI MOHAN C/SA/28/2013 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL NO. 28 of 2013 With CIVIL APPLICATION NO. 1303 of 2013 In SECOND APPEAL NO. 28 of 2013 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE C.L. SONI ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? No 2 To be referred to the Reporter or not ? Yes 3 Whether their Lordships wish to see the fair copy of the judgment ? No 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? No 5 Whether it is to be circulated to the Civil Judge ? No ========================================= ARJAN NARAN (DECD) THROUGH LEGAL HEIRS Versus JEDIBAI MOHAN & 6 ========================================= Appearance: MR DEEPAK M SHAH, ADVOCATE for the Appellants MR DIGANT M POPAT, ADVOCATE for the Respondents No. 6 - 7 MR PREMAL S RACHH, ADVOCATE for the Respondents No. 1 - 4 ========================================= CORAM: HONOURABLE MR.JUSTICE C.L. SONI Date : 19/02/2013 ORAL JUDGMENT
[1] Having perused the judgment of the first Appellate Court since this Court was of the opinion that this appeal is required to be finally decided at this stage, learned advocates for the parties have requested to decide the appeal finally at this stage. The appeal is therefore admitted on following substantial questions of law.
Whether the first Appellate Court was justified in deciding the first appeal on merits when there was no instruction purshis passed by the learned advocate for the appellants ?
Whether the first Appellate Court could be said to have discharged its appellate function as required under Order 41 of the Civil Procedure Code ?
Learned advocate Mr.Digant Popal waives service of notice of admission for the respondents No.6 and 7 and learned advocate Mr.Premal Rachh waives service of notice of admission for the respondents No.1 to 4. With the consent of the parties, the appeal is finally heard and decided.
[2] This appeal under Section 100 of the Civil Procedure Code is filed by the original defendant No.1 against whom as well as against the respondent No.5 herein defendant No.2, the respondent Nos.1 to 4 original plaintiffs filed Special Civil Suit No.68 of 1979 for declaration or in the alternatively, partition of 1/3rd share in the suit properties and for permanent injunction.
[3] The Trial Court decreed the suit for recovery of possession of the property mentioned and described in Schedule B from the defendant No.1 husband of the appellant No.1/1 and father of appellants No.1/2 to 1./4 The Trial Court also declared the plaintiffs entitled to recover mesne profits in respect of the said suit property, for the period from 18.08.1971 till realization of the possession thereof from the defendant No.1. The Trial Court further passed order for permanent injunction restraining the defendants from causing any interference or obstruction in the enjoyment of the suit property described in Schedule B by the plaintiffs.
[4] The appellants challenged the judgment and decree passed by the Trial Court by filing Regular Civil Appeal No.114 of 2005 before the first Appellate Court. In the appeal, the respondent Nos.2 and 6 were also joined as party respondents as they were alleged to have purchased part of the suit property.
[5] Learned Appellate Judge has recorded that the learned advocate for the appellants, after seeking many adjournments ultimately passed no instruction purshis at Ex.71. The learned Appellate Judge then proceeded to decide appeal on merits and observed that it emerges on perusal of the record that the plaintiffs have established their entitlement to the relief they sought. Learned Appellate Judge further observed that the evidence on record and proceedings has been considered minutely by learned Trial Judge and learned Trial Judge has rightly proceeded to decree the suit of the plaintiffs. In the opinion of the learned Appellate Judge since the judgment of the learned Trial Judge was well-reasoned and it dealt with all the issues, there was no necessity to exercise appellate jurisdiction. The appeal was thus dismissed by judgment and decree dated 03.11.2011. Hence this appeal.
[6] I have heard learned advocates for the parties.
[7] Learned advocate Mr.Deepak Shah appearing for the appellants made serious grievance about the way in which the learned first Appellate Judge has disposed of the first appeal. He submitted that if there was no instruction purshis by the learned advocate for the appellants before the first Appellate Court, the learned Appellate Judge ought not to have disposed of the appeal on merits. He further submitted that the appellants in fact were never informed by their advocate at the first Appellate Court for giving any instruction to him which were required for the purpose of prosecuting the appeal before the first Appellate Court. He further submitted that the first Appellate Court if, at all, was to dispose of the appeal on merits it was under obligation to decide each of the issue in the context of evidence available on record. He submitted that the first Appellate court has not discharged its appellate function in accordance with law. He thus submitted that on both the counts the judgment and decree passed by the first Appellate Court cannot stand scrutiny of law.
[8] Learned advocate Mr.Digant Popal appearing for the respondents No.6 and 7 while adopting arguments advanced by the learned advocate for the appellants also submitted that the first Appellate court has not dealt with any of the issues involved in the appeal by making reference to the evidence available on record. He submitted that when there was no instruction purshis, the first Appellate Court ought not to have proceeded to decide the appeal on merits and even if the appeal is to be decided on merits, the prime issues which arose in the suit as regards the right, title and interest in the suit property were required to be addressed and decided on the basis of the evidence available on record. He, thus, supported the case of the appellants.
[9] Learned advocate Mr.Premal Rachh appearing for the respondents No.1 to 4 original plaintiffs submitted that the plaintiff No.1 is a widow and with her minor children, she has been clamouring for justice right from 1971. He submitted that after long drawn litigation, even though she succeeded before the Trial Court, the appellants have successfully delayed the matter which has deprived the widow and her children from getting fruits of the decree. He submitted that passing of no instruction purshis was part of delay tactics so as to see that the plaintiffs may not enjoy fruits of the decree and by such tactics the plaintiffs may be deprived of their right in their ancestral property. He submitted that the first Appellate court while taking note of pendency of the appeal for past more than 20 years took up the appeal to decide when the learned advocate for the appellants passed no instruction purshis and considering the merits of the appeal, the learned Appellate Judge has not committed any error in dismissing the appeal. He submitted that the first Appellate Court has considered each of the issues which has arisen in the appeal and decided the same on the basis of the evidence available on record. He submitted that the first Appellate Court has found that the Trial Court has not committed any error in holding that the plaintiffs were entitled to their share in the property and there was no illegality committed by the Trial Court in passing the decree against the present appellants. He thus urged not to entertain the appeal as the appellants were responsible for not prosecuting the appeal before the first Appellate Court.
[10] Having heard learned advocates for the parties and having perused the judgment of the first Appellate Court, it appears that the first appeal was transferred from this Court because of change in pecuniary jurisdiction to the lower Appellate Court. The suit is of the year 1971, but was renumbered in the year 1979 and the first appeal was of the year 1982, but the same was also renumbered in the year 2005 after same was transferred from this Court.
[11] It appears from the judgment and decree of the first Appellate Court that the learned advocates for the appellants had passed no instruction purshis at Ex.71 stating there in that the appellant was not traceable and that learned advocate had no instruction to proceed with the appeal. Learned Appellate Judge after recording above purshis proceeded to decide the appeal on merits. The first question therefore is whether the learned Appellate Judge was justified in proceeding with the appeal on merits?
[12] It is required to be noted that because of no instruction purshis there was no representation on behalf of the appellants, when the appeal was taken up for hearing. In such circumstances, learned Appellate Judge ought not to have proceeded and decided the appeal on merits. At this stage, a reference to two judgments of the Hon ble Supreme Court is required to be made. In the case of Desa Singh Vs. Ajit Singh and Others, reported in (2007) 15 SCC 235, the Hon ble Supreme Court has held and observed in paragraph No.5 as under :-
5. As the factual scenario which is almost undisputed goes to show that there was no representation when the matter was taken up before the High Court. Because of circumstances beyond the control of the appellant, there was no appearance and the matter was decided against them. Normally when the appellant is not represented, the High Court would dismiss it for default and not go into the merits in detail.
That is precisely what has not been done in the present case.
In the case of Ghanshyam Dass Gupta Vs. Makhan Lal, reported in (2012) 8 SCC 745, the Hon ble Supreme Court has held and observed in paragraph Nos.7 and 8 as under :-
7. Rule 17(1) of Order 41 deals with the dismissal of appeal for the appellant s default. The abovementioned provision, even without Explanation, if literally read, would clearly indicate that if the appellant does not appear when the appeal is called for hearing, the court has to dismiss the appeal. The provision does not postulate a situation where, the appeal has to be decided on merits, because possibility of allowing of the appeal is also there, if the appellant has a good case on merits; even if nobody had appeared for the appellant.
8. Prior to 1976, conflicting view were expressed by the different High Courts in the country as to the purport and meaning of sub-rule (1) of Rule 17 of Order 41 CPC. Some High Courts had taken the view that it was open to the appellate court to consider the appeal on merits, even though there was no appearance on behalf of the appellant at the time of hearing. Some High Courts had taken the view that the High Court cannot decide the matter on merits, but could only dismiss the appeal for the appellant s default. Conflicting views raised by the various High Courts gave rise to more litigation. The legislature, therefore, in its wisdom, felt that it should clarify the position beyond doubt. Consequently, the Explanation to sub-rule (1) of Rule 17 of Order 41 CPC was added by Act 104 of 1976, making it explicit that nothing in sub-rule (1) of Rule 17 of Order 41 CPC should be construed as empowering the appellate court to dismiss the appeal on merits where the appellant remained absent or left unrepresented on the day fixed for hearing the appeal. The reason for introduction of such an Explanation is due to the fact that it gives an opportunity to the appellant to convince the appellate court that there was sufficient cause for non-appearance. Such an opportunity is lost, if the courts decide the appeal on merits in absence of the counsel for the appellant.
In light of the above, when there was no instruction purshis , the first Appellate Court ought not to have decided the appeal on merits.
[13] However even, while deciding the appeal on merits, learned Appellate Judge has not discharged his appellate function properly. Learned Appellate Judge, has just cursorily mentioned about the merits of the appeal and went on putting its seal on the correctness of the judgment and decree passed by the Trial Court. The first Appellate Court has not dealt with any of the issues independently on the basis of evidence. It is true that while affirming the judgment and decree of the Trial Court, detail discussion is not required. However, the judgment should reflect application of mind on the points involved. The first Appellate Court is under obligation to decide the points arise in the appeal in the context of evidence available on record. For that purpose to some extent, the evidence is required to be discussed. The judgment of the first Appellate Court does not reflect such exercise undertaken by the first Appellate Court. At this stage, reference to some judgments of the Hon ble Supreme Court on the function of the first Appellate Court and on mode of deciding the first appeal needs to be made.
In the case of Santosh Hazari Vs. Purushottam Tiwari, reported in (2001) 3 SCC 179, the Hon ble Supreme Court has held and observed in paragraph No.15 as under :-
15. A perusal of the judgment of the trial Court shows that it has extensively dealt with the oral and documentary evidence adduced by the parties for deciding the issues on which the parties went to trial. It also found that in support of his plea of adverse possession on the disputed land, the defendant did not produce any documentary evidence while the oral evidence adduced by the defendant was conflicting in nature and hence unworthy of reliance.
The first appellate Court has, in a very cryptic manner, reversed the finding on question of possession and dispossession as alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. 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. The task of an appellate Court affirming the findings of the trial Court is an easier one. The appellate Court agreeing with the view of the trial Court need not restate the effect of the evidence or reiterate the reasons given by the trial Court; expression of general agreement with reasons given by the Court, decision of which is under appeal, would ordinarily suffice (See Girijanandini Devi & Ors. Vs. Bijendra Narain Choudhary, AIR 1967 SC 1124). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate Court for shirking the duty cast on it. While writing a judgment of reversal the appellate Court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial Court must weigh with the appellate Court, more so when the findings are based on oral evidence recorded by the same presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate Court is entitled to interfere with the finding of fact (See Madhusudan Das Vs. Smt. Narayani Bai & Ors., AIR 1983 SC 114). The rule is __ and it is nothing more than a rule of practice __ that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judges notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the finding of the trial Judge on a question of fact.(See Sarju Pershad Ramdeo Sahu Vs. Jwaleshwari Pratap Narain Singh & Ors., AIR 1951 SC 120). Secondly, 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. We need only remind the first appellate Courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate Court continues, as before, to be a final Court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate Court is also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate Court even on questions of law unless such question of law be a substantial one.
In the case of Madhukar and others Vs. Sangram and others, reported in (2001) 4 SCC 756, the Hon ble Supreme Court has held and observed in paragraph No.5 as under :-
5.
We have carefully perused the judgment and decree of the High Court in the first appeal. We find that substantial documentary evidence had been placed before the trial Court including certified copies of certain public records besides copy of the judgment and decree of the earlier suit (OS No. 93/71). Oral evidence had also been led by the parties before the trial Court, which was noticed and appreciated by the trial Court. However, the impugned judgment in the first appeal, is singularly silent of any discussion either of documentary evidence or oral evidence. Not only that, we find that though trial Court had dismissed the suit on ground of limitation as also on the ground that the decision in the earlier suit (OS No. 93/71) operated as res judicata against defendant No. 1 only the High Court has not even considered, much less discussed, correctness of either of the two grounds on which the trial Court had dismissed the suit. 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. It has failed to discharge the obligation placed on a first appellate Court. The judgment under appeal is so cryptic that none of the relevant aspects have even been noticed. The appeal has been decided in a very unsatisfactory manner. 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.
In the case of Nicholas V. Menezes Vs. Joseph M. Menezes, reported in (2009) 4 SCC 791, the Hon ble Supreme Court has held and observed in paragraph No.3 as under :-
3. It is well settled that while deciding a first appeal, the High Court must consider the evidence on record, oral and documentary and also the questions of law raised before it and at the same time it was the duty of the court to consider the reasons given by the trial court against which the first appeal was filed and thereafter dispose of the same after passing a speaking and reasoned order in accordance with law.
[14] In light of the above principles of law settled by the Hon ble Supreme Court, on both the substantial questions of law, judgment and decree passed by lower Appellate Court is required to be quashed and set aside and the matter is required to be remanded to the first Appellate Court to decide the appeal afresh on its own merits and in accordance with law after giving full opportunities to the parties. The appeal, therefore, deserves to be allowed.
[15] At this stage, it is required to be noted that as stated above, the suit is very old. Considering long time consumed after decision in the suit and looking to the nature of the dispute between the parties, the appeal is required to be heard and decided at the earliest. However, since the matter is remanded at the instance of the appellants on account of no instruction purshis submitted by their advocate, the appellants are required to be saddled with cost and appropriate cost would be Rs.7,500/- to be paid to the plaintiffs.
[16] For the reasons recorded above, the appeal is allowed. The judgment and decree passed by the first Appellate Court in Regular Civil Appeal No.114 of 2005 is hereby quashed and set aside. The matter is remanded to the first Appellate Court to hear and decide the appeal afresh on its own merits and in accordance with law after giving full opportunity to the parties. The Appellate Court shall make endevour to decide the appeal as early as possible but not later than end of July 2013. For this purpose, the parties are directed to present themselves personally or through their advocates before the first Appellate Court on 7th March 2013. By their appearance before the first Appellate Court, the parties shall be deemed to have taken notice of taking the appeal for hearing and no further intimation to the parties for hearing of the appeal shall be necessary. After the parties appear before the first Appellate Court either personally or through their advocates, the learned first Appellate Judge shall decide future course of proceedings for deciding the appeal. In order to preserve and protect the interest of the parties in the suit property, the parties are directed to maintain status-quo in respect of suit property till the appeal is finally decided by the first Appellate Court. The appellants are directed to deposit cost of Rs.7,500/- with the Appellate Court on or before 7th March 2013. On such deposit being made, the plaintiffs shall be permitted to withdraw the said amount.
[17] In view of the aforesaid order, Civil Application would not survive and hence, the same stands disposed of.
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