Uttarakhand High Court
Smt Mamta Goel And Another vs Indian Oil Corporation Ltd And Another on 26 July, 2017
Author: Lok Pal Singh
Bench: Lok Pal Singh
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Second Appeal No. 67 of 2009
Smt. Mamta Goel and another .......Appellants
Vs.
Indian Oil Corporation Ltd. And another .......Respondents
Mr. Arvind Vashistha, Senior Advocate assisted by Mr. Ashish
Sinha, Advocate for the appellants.
Mr. V.K. Kohli, Senior Advocate assisted by Ms. Rajni Supyal,
Advocate for the respondents.
Hon'ble Lok Pal Singh, J.
Present appeal has been preferred against the judgment and decree dated 08.10.2009, passed by Additional District Judge/I F.T.C. Dehradun in Civil Appeal No. 31 of 2007, Indian Oil Corporation Ltd. Vs. Shri Pankaj Gupta and others, whereby the learned first appellate court allowed the first appeal by setting aside the judgment and decree passed by the trial court.
2. Brief facts, of the case are that earlier plaintiff /appellant had filed a suit bearing suit no. 119 of 1976 for eviction against defendant/respondent. The aforesaid suit was decreed vide judgment and decree dated 30.04.1983.
3. Feeling aggrieved by the judgment and decree dated 30.04.1983, the defendant filed civil appeal no. 29 of 1983. During the pendency of the said appeal, parties entered into compromise, and the decree passed by the learned trial court dated 30.04.1983 was set aside and the suit was decided in terms of the compromise. The proceedings of original suit came to an end by way of compromise thereafter original plaintiff Pankaj Gupta has executed a lease in favour of the defendant for a period of 15 years w.e.f 01.04.1985 to 31.03.2000. On the expiry of period of lease, the plaintiff/appellant filed another 2 suit bearing suit no. 155 of 2000 Pankaj Gupta vs. Indian oil Corporation Ltd., on the ground that tenancy of the suit was fixed term tenancy for a period of 15 years, and after expiry of the said period of tenancy, the defendant has no right to continue with the property in question.
4. The aforesaid suit was contested by the defendant/ respondent on the ground that their tenancy was fixed term tenancy for a period of 15 years and contended that since construction had already been raised on the land in dispute by the defendant and huge amount has been spent on the construction by them, therefore, defendant/ respondent is entitled to get benefit of Section 29A of Uttar Pradesh Urban Buildings (Regulation and letting Rent and Eviction) Act, 1972 (for short U.P. Act, 1972).
5. On the pleadings of the parties the learned trial court framed the following issues:-
(i) Whether in view of the compromise arrived between the parties in Appeal No. 29 of 1983 arises out of O.S. No. 119 of 1976, the tenancy of the defendant came to an end on 31st March 2000 on completion of the period of the tenancy. If so, its effect?
(ii) Whether by way of registered rent deed dated 26.03.1987, the property in dispute was let out on perpetual relief to the defendant ?
(iii) Whether the notice dated 27.03.2000 is invalid and ineffective?
(iv) Whether the defendant has spent huge amount on construction with the consent of 3 the plaintiff and its tenancy is protected under section 29A of the Act?
(v) Whether the suit is barred by principle of estoppel and acquiescence?
(vi) Whether the suit is barred res judicata?
(vii) Whether this court has no jurisdiction to hear the suit?
(viii) Whether the suit is under valued and court fee paid is not sufficient?
(ix) relief?
Thereafter, additional issues were framed:
(x) Whether plaintiff no. 1/1 and1/2 are the owner of the property. If so, its effect?
(xi) Whether the suit is barred by provision of Section 52 of Transfer of the Property Act?
6. The plaintiff filed the documentary evidence and examined Amit Goyal as P.W.1, Vinay Kumar as P.W.2 and Mamta Goyal as P.W.3. On behalf of the defendant, 35 documents were produced and Rajesh was examined as D.W.1.The learned trial court after hearing the parties decreed the suit of plaintiff/appellant by judgment and decree dated 31.05.2007 and passed the decree of eviction against the defendant.
7. Feeling aggrieved by the judgment and decree dated 31.05.2007, defendant/respondent preferred the civil appeal no. 31 of 2007 Indian Oil Corporation vs. Pankaj Gupta. The learned first appellate court by impugned judgment and decree dated 8.10.2009 allowed the civil appeal filed by the defendant/respondent and dismissed the suit of plaintiff/appellant with cost. Hence, this appeal.
8. This second appeal was admitted on the following substantial questions of law:-
4(i) Whether the lower appellate court was justified in holding that the provisions of Act No. XIII of 1972 is applicable to the present facts and circumstances of the case and that the benefit of Section 29A of the said Act was applicable to the defendant?
(ii) Whether the lower appellate court was justified in reversing the decree of the trial court without dealing with the specific issues framed and without upsetting its findings?
9. For just decision of the present appeal substantial question of law no. 2 is relevant, Therefore, the substantial question of law is being decided first.
Answer to substantial question no. (ii) From the perusal of the impugned judgment and decree passed by the learned first appellate court it would reveal that in view of the Order 41 Rule 31 of C.P.C., it was incumbent upon the first appellate court either to record its findings on all the issues, so it may come to the right conclusion or framed point of determination to record its findings on the relevant point for proper adjudication of the appeal.
From the perusal of the judgment of the first appellate court it would reveal that first appellate court without adverting its findings on all the issues and without formulating any point of determination (in view of Order 41 Rule 31 of C.P.C.), has allowed the appeal, even without reversing/reverting the finding recorded by the trial court on the issues.
510. It is settled preposition of law that the first appellant court is the final court on facts and law. While confirming the findings of the trial court, the first appellate court may record the reasons of its confirmation. If the first appellate court is of the view to reverse the judgment of the trial court, duty caste upon the first appellate court to give its finding on all the issues or alternatively framed the point of determination involved in the appeal and record its finding on the points. But, if the first appellate court did not discharge its legal obligation in deciding the first appeal being the last court on facts and law in consonance of Order 41 Rule 31 of C.P.C., the judgment of the first appellate court cannot sustain.
11. The Hon'ble Apex Court in the case of Santosh Hazari vs. Purushottam Tiwari reported in (2001) 3SCC 179 has held as follows:-
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 6 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). 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) 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). 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.
712. The Hon'ble Apex Court in the case of H. Siddiqui vs. A. Ramalingam reported in (2011) 4SCC 240 has held as follows:-
"20. The High Court failed to realise that it was deciding the First Appeal and that it had to be decided strictly in adherence with the provisions contained in Order 41 Rule 31 of the Code of Civil Procedure, 1908 (hereinafter called CPC) and once the issue of alleged power of attorney was also raised as is evident from the point (a) formulated by the High Court, the Court should not have proceeded to point (b) without dealing with the relevant issues involved in the case, particularly, as to whether the power of attorney had been executed by the respondent in favour of his brother enabling him to alienate his share in the property.
Order 41, Rule 31 CPC:
18. The said provisions provide guidelines for the appellate court as to how the court has to proceed and decide the case. The provisions should be read in such a way as to require that the various particulars mentioned therein should be taken into consideration. Thus, it must be evident from the judgment of the appellate court that the court has properly appreciated the facts/evidence, applied its mind and decided the case considering the material on record. It would amount to substantial compliance of the said provisions if the appellate court's judgment is based on the independent assessment of the relevant evidence on all important aspect of the matter and the findings of the appellate court are well founded and quite convincing. It is mandatory for the appellate court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final court of fact, the first appellate court must not record mere general expression of concurrence with the trial court judgment rather it must give reasons for its decision on each point independently to that of the trial court. Thus, the entire evidence must be considered and discussed in detail. Such exercise should be done after formulating the points for consideration in terms of the said provisions and the court must proceed in adherence to the requirements of the said statutory provisions. (Vide: Sukhpal Singh v. Kalyan Singh, Girijanandini Devi v. Bijendra Narain Choudhary, G. Amalorpavam v. R.C. Diocese of Madurai, Shiv Kumar Sharma v. Santosh Kumari and Gannmani Anasuya v.
Parvatini Amarendra Chowdhary)."
813. In view of the law laid down by the Hon'ble Apex Court in the judgments supra, I am of the view that the first appellate court has failed to discharge its legal obligation in recording the findings on all the issues and decided the appeal without formulating question of law/point of determination. Therefore, first appellate court has committed illegality in allowing the appeal in contravention of the settled principle of law.
Therefore, question no. 2 is answered in favour of the plaintiff/appellant.
14. Since, the first appellate court is the last court on facts and law and failed to decide the appeal in the manner provided under Order 41 Rule 31 of C.P.C. and in view of the law laid down by the Hon'ble Apex Court in the judgment (supra), judgment passed by the learned first appellate court is not sustainable in the eyes of the law. Impugned judgment and decree passed by the first appellate court is set aside on the limited ground that the first appellate court has not decided the first appeal in consonance with provision of Order 41 Rule 31 of C.P.C., as well as in accordance with the dictum of Hon'ble Apex Court supra. Therefore, judgment and decree in appeal is set aside. Appeal is allowed. Matter is remanded to the first appellate court.
15. Since the matter is being remitted back to the learned first appellate court, I am not expressing my opinion on the substantial question of law no. (i) as it is more or less a translated version of issue no. 4 framed by the trial court. The first appellate court to decided the first appeal in accordance with provision contained under 9 Order 41 Rule 31 of C.P.C. and as mandated by the Hon'ble Supreme Court in the judgments referred supra.
16. Since the appeal is very old, learned appellate court shall made endeavour to decide the first appeal expeditiously. It is further directed that the parties shall maintain status quo in regard to the property in question till the decision of first appeal.
17. Costs easy.
(Lok Pal Singh, J.)
Parul 26.07.2017