Ramesh Negi vs Hira Lal Mehta on 24 October, 2018

[Cites 11, Cited by 2]

Himachal Pradesh High Court

Ramesh Negi vs Hira Lal Mehta on 24 October, 2018

Bench: Tarlok Singh Chauhan

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.447 of 2006.

Date of decision: 24.10.2018.

Ramesh Negi .....Appellant/Plaintiff.

Versus Hira Lal Mehta ....Respondent/Defendant.

Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.

    Whether approved for reporting ?1                       No

    For the Appellant                   :        Mr.Tek Chand Sharma, Advocate.

    For the Respondent                  :        Mr. G.C.Gupta, Senior Advocate with
                                                 Ms.Meera Devi, Advocate.



    Tarlok Singh Chauhan, Judge (Oral).

Even though, this appeal has been formally admitted on 30.04.2007 and even substantial questions of law stand formulated.

However, I find that the First Appellate Court has not decided the case, as is required under law.

2. It is settled principle of law that right to file first appeal against the decree under Section 96 of the Code of Civil Procedure is a valuable legal right of the litigant. The jurisdiction of the First 1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 25/10/2018 22:56:38 :::HCHP 2 Appellate Court while hearing the first appeal is very wide like that of learned trial Court and it is open to the appellant to attack all findings .

of fact or/and of law in the first appeal. It is duty of the first appellate Court to appreciate the entire evidence and may come to a different conclusion from that of the trial Court. While doing so, the judgment of the Appellate Court must reflect its conscious application of mind and record findings supported by reasons, on all 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.

3. The scope, ambit and power of the first Appellate Court while deciding the first appeal have been subject matter of various judicial pronouncements and I may refer to the pronouncement of the Hon'ble Supreme Court in Shasidhar and others vs. Smt. Ashwini Uma Mathad and another 2015 AIR SCW 777 wherein it was held as follows:

"11. Having heard learned counsel for the parties and on perusal of the record of the case and examining the issue ::: Downloaded on - 25/10/2018 22:56:38 :::HCHP 3 arising in this appeal, we find force in the submissions of the learned counsel for the appellants.

12. 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.

13. As far back in 1969, the learned Judge -V.R. Krishna Iyer, J (as His Lordship then was the judge of Kerala High Court) while deciding the first appeal under Section 96 of the CPC in Kurian Chacko vs. Varkey Ouseph, AIR 1969 Kerala 316, reminded the first appellate Court of its duty as to how the first appeal under Section 96 should be decided. In his distinctive style of writing and subtle power of expression, the learned judge held as under:

"1. The plaintiff, unsuccessful in two Courts, has come up here aggrieved by the dismissal of his suit which was one for declaration of title and recovery of possession. The defendant disputed the plaintiff's title to the property as also his possession and claimed both in himself. The learned Munsif, who tried the suit, recorded findings against the plaintiff both on title and possession. But, in appeal, the learned Subordinate Judge disposed of the whole matter glibly and briefly, in a few sentences.

2. An appellate court is the final Court of fact ordinarily and therefore a litigant is entitled to a full ::: Downloaded on - 25/10/2018 22:56:38 :::HCHP 4 and fair and independent consideration of the evidence at the appellate stage. Anything less than this is unjust to him and I have no doubt that in the .

present case the learned Subordinate Judge has fallen far short of what is expected of him as an appellate Court. Although there is furious contest between the counsel for the appellant and for the respondent, they appear to agree with me in this observation....." (Emphasis supplied)

14. This Court in a number of cases while affirming and then reiterating the aforesaid principle has laid down the scope and powers of the first appellate Court under Section 96 of the Code.

15. We consider it apposite to refer to some of the decisions.

16. In Santosh Hazari vs Purushottam Tiwari (Deceased) by L.Rs . (2001) 3 SCC 179, this Court held (at pages 188- 189) as under:

".........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 ::: Downloaded on - 25/10/2018 22:56:38 :::HCHP 5 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 as sign 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............"

17. The above view has been followed by a three- Judge Bench decision of this 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.

18. In H.K.N. Swami v. Irshad Basith ,(2005) 10 SCC 243, this 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."

19. Again in Jagannath v. Arulappa & Anr. (2005) 12 SCC 303, while considering the scope of Section 96 of the ::: Downloaded on - 25/10/2018 22:56:38 :::HCHP 6 Code this 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........."

20. Again in B.V Nagesh & Anr.vs. H.V.Sreenivasa Murthy, (2010) 13 SCC 530, this 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 appellate court/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 putforth, and pressed by the parties for decision of the appellate ::: Downloaded on - 25/10/2018 22:56:38 :::HCHP 7 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 the obligation 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."

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21. The aforementioned cases were relied upon by this Court while reiterating the same principle in State Bank of India & Anr. vs. Emmsons International Ltd. & Anr.(2011) .

12 SCC 174. This Court has recently taken the same view on similar facts arising in Vinod Kumar vs. Gangadhar, 2014(12) Scale 171."

4. Similar issue came up before the Hon'ble Supreme Court in Union of India Vs. K.V. Lakshman and others, AIR 2016 SC 3139, wherein it was held:-

"22. It is a settled principle of law that a right to file first appeal against the decree under Section 96 of the Code is a valuable legal right of the litigant. The jurisdiction of the first appellate Court while hearing the first appeal is very wide like that of the Trial Court and it is open to the appellant to attack all findings of fact or/and of law in first appeal. It is the duty of the first appellate Court to appreciate the entire evidence and may come to a conclusion different from that of the Trial Court.

23. Similarly, the powers of the first appellate Court while deciding the first appeal are indeed well defined by various judicial pronouncements of this Court and are, therefore, no more res integra. It is apposite to take note of the law on this issue.

24. As far back in 1969, the learned Judge - V.R. Krishna Iyer, J (as His Lordship then was the judge of Kerala High Court) while deciding the first appeal under Section 96 of ::: Downloaded on - 25/10/2018 22:56:39 :::HCHP 9 the CPC in Kurian Chacko vs. Varkey Ouseph, AIR 1969 Kerala 316, reminded the first appellate Court of its duty to decide the first appeal. In his distinctive style of writing .

with subtle power of expression, the learned judge held as under:

"1. The plaintiff, unsuccessful in two Courts, has come up here aggrieved by the dismissal of his suit which was one for declaration of title and recovery of possession. The defendant disputed the plaintiff's title to the property as also his possession and claimed both in himself. The learned Munsif, who tried the suit, recorded findings against the plaintiff both on title and possession. But, in appeal, the learned Subordinate Judge disposed of the whole matter glibly and briefly, in a few sentences.

2. 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 and I have no doubt that in the present case the learned Subordinate Judge has fallen far short of what is expected of him as an appellate Court. Although there is furious contest between the counsel for the appellant and for the respondent, they appear to agree with me in this observation....." (Emphasis supplied)

25. This Court also in various cases reiterated the aforesaid principle and laid down the powers of the ::: Downloaded on - 25/10/2018 22:56:39 :::HCHP 10 appellate Court under Section 96 of the Code while deciding the first appeal.

26. We consider it apposite to refer to some of the .

decisions.

27. In Santosh Hazari vs. Purushottam Tiwari (Deceased) by L.Rs. (2001) 3 SCC 179, this Court held (at pages 188-189) as under:

".........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............"

28. The above view was followed by a three-Judge Bench decision of this 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 ::: Downloaded on - 25/10/2018 22:56:39 :::HCHP 11 duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings.

29. In H.K.N. Swami v. Irshad Basith,(2005) 10 SCC 243, .

this Court (at p. 244) stated as under: (SCC para 3) "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."

30. Again in Jagannath v. Arulappa & Anr., (2005 12 SCC 303, while considering the scope of Section 96 the Code of Civil Procedure, 1908, this Court (at pp. 303-04) observed as follows: (SCC para 2) "2. A court of first appeal can reappreciate the entire evidence and come to a different conclusion........."

31. Again in B.V Nagesh & Anr. vs. H.V Sreenivasa Murthy, (2010) 13 SCC 530, this 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 appellate court/High Court has been ::: Downloaded on - 25/10/2018 22:56:39 :::HCHP 12 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 ::: Downloaded on - 25/10/2018 22:56:39 :::HCHP 13 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 the obligation 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."

32. The aforementioned cases were relied upon by this Court while reiterating the same principle in State Bank of India & Anr. vs. Emmsons International Ltd. & Anr., (2011) 12 SCC 174."

5. Similar reiteration of law can be found in a very recent judgment of Hon'ble Supreme Court in Laliteshwar Prasad Singh & ::: Downloaded on - 25/10/2018 22:56:39 :::HCHP 14 Ors. v. S.P. Srivastava (deceased) through LRs, 2017 (2) SCC 415, wherein it was held as under:-

.

"12. An appellate court is the final court of facts. The judgment of the appellate court must therefore reflect court's application of mind and record its findings supported by reasons. The law relating to powers and duties of the first appellate court is well fortified by the legal provisions and judicial pronouncements.

Considering the nature and scope of duty of first appellate court, in Vinod Kumar v. Gangadhar (2015) 1 SCC 391, it was held as under:-

"12. In Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179, this Court held as under: (SCC pp. 188-89, para 15) "15. ... 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 ::: Downloaded on - 25/10/2018 22:56:39 :::HCHP 15 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."

The above view has been followed by a three-Judge Bench decision of this Court in Madhukar v. Sangram (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.

13. In H.K.N. Swami v. Irshad Basith (2005) 10 SCC 243, this Court stated as under: (SCC p. 244, para 3) "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."

::: Downloaded on - 25/10/2018 22:56:39 :::HCHP 16

14. Again in Jagannath v. Arulappa (2005) 12 SCC 303, while considering the scope of Section 96 of the Code of Civil Procedure, 1908, this Court observed as follows:

.

(SCC p. 303, para 2)

15. Again in B.V. Nagesh v. H.V. Sreenivasa Murthy (2010) 13 SCC 530, this Court taking note of all the earlier judgments of this Court reiterated the aforementioned principle with these words: (SCC pp. 530-31, paras 3-5) "3. How the regular first appeal is to be disposed of by the appellate court/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.

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) 9 3 SCC 179, SCC p. 188, para 15 and Madhukar v. Sangram (2001) 4 SCC 756 SCC p. 758, para 5.)

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6. Adverting to the facts of the case, it would be noticed that the learned First Appellate Court has not at all adverted to the .

reasoning accorded by the learned trial Court while reversing the judgment passed by it and infact has chosen to write a separate judgment. Whereas, as observed above, the learned First Appellate Court was required to come into close quarters with the reasoning assigned by the learned trial Court and then assign its own reasons for arriving at a different finding.

7. In view of the aforesaid exposition of law, the judgment and decree, passed by the learned First Appellate Court cannot be countenanced and sustained and, therefore, this Court has no option, but to set aside the judgment and decree so passed by it and remand the matter for decision afresh. Ordered accordingly.

8. The parties, through their learned counsel(s), are directed to appear before the learned First Appellate Court on 21.11.2018.

9. Since the suit was filed more than 16 years back i.e. on 07.03.2002, the learned First Appellate Court is requested to decide the same as expeditiously as possible and in no event later than 31st March, 2019.

(Tarlok Singh Chauhan) th 24 October, 2018. Judge (krt) ::: Downloaded on - 25/10/2018 22:56:39 :::HCHP

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