Karnataka High Court
Rukminibai W/O Late Arun Kundaleshware vs Baburao S/O Shankarrao Kundaleshware & ... on 13 September, 2017
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
1
IN THE HIGH COURT OF KARNATAKA R
KALABURAGI BENCH
DATED THIS THE 13TH DAY OF SEPTEMBER 2017
BEFORE
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
REGULAR SECOND APPEAL No.7245/2013
Between:
Rukminibai
W/o Late Arun Kundaleshware
Aged about 45 years
Occ: Household
R/o Village Chandikapur
Tq. Basavakalyan
Dist. Bidar-585 401
... Appellant
(By Sri Ameet Kumar Deshpande, Advocate)
And:
1. Baburao
S/o Shankarrao Kundaleshware
Aged about 63 years
Occ: Agriculture
R/o Village Chandikapur
Tq. Basavakalyan
Dist. Bidar-585 401
2. Balaji S/o Shankarrao
Kundaleshware
Aged about 48 years
Occ: Agriculture
R/o Village Chandikapur
Tq. Basavakalyan
Dist. Bidar - 585 401
2
3. Smt. Mankawati
W/o Prahlad Patil
Aged about 43 years
Occ: Household and
Agriculture
R/o Village Chandikapur
Tq. Basavakalyan
Dist. Bidar-585 401
... Respondents
(By Sri Sachin M. Mahajan, Advocate)
This Regular Second Appeal is filed under Section 100 of
the Code of Civil Procedure praying to allow this appeal and
set aside the judgment and decree dated 01.04.2013 passed
in R.A.No.10/2010 by the Senior Civil Judge at
Basavakalyan, confirming the judgment and decree dated
22.12.2009 passed in O.S.No.47/2005 by the Civil Judge
(Jr., Dn.,) and JMFC, at Basavakalyan, and to grant any
other appropriate relief.
This appeal coming on for Admission this day, the
Court delivered the following:
JUDGMENT
Heard the learned counsel appearing for the appellant and the respondents. Perused the judgments and decrees passed by the Trial Court and the First Appellate Court.
2. For the purpose of easy understanding and convenience, ranks of the parties as per their ranks before the Trial Court is retained.
3
3. After hearing the learned counsel appearing for both the parties, the following substantial question of law is framed:
Whether the First Appellate Court has committed any serious legal error in not disposing of the appeal as per the letter and spirit of Section 96 and Order XLI Rule 31 of the Code of Civil Procedure?
4. In order to answer the above substantial question of law, it is just and necessary to have brief factual aspects of the case though not in detail.
5. The plaintiff, Rukminibai, filed a suit in O.S.No.47/2005 for declaration and permanent injunction against the defendants, Baburao and others. The Trial Court after considering the contentious pleadings of the parties has framed as many as six issues which are as follows:
4
i. Whether the plaintiff proves that, Smt. Mathurabai bequeathed suit lands in her favour through will deed dated 24.08.2001?
ii. Does she prove her possession over the suit lands as on the date of suit?
iii. Whether the defendants prove that, this court has no pecuniary jurisdiction to try this suit?
iv. Whether the court fee paid not correct? v. To what reliefs are the parties entitled to?
vi. What order or decree?
6. In order to prove the case of the plaintiff, the plaintiff examined herself as PW.1 and three more witnesses were examined as PWs.2 to 4 and got marked the documents at Exs.P1 to P4. On the side of the defendants, defendant No.1 was examined as DW.1 and three more witnesses as DWs.2 to 4 and got marked the 5 documents at Exs.D1 to D9. In fact, the Trial Court, considering the oral and the documentary evidence on record indetail and meticulously, has given finding to issue Nos.1 to 5 in the 'Negative' and consequently, dismissed the suit.
7. Being aggrieved by the said judgment and decree passed by the Trial Court, the plaintiff preferred an appeal in R.A.No.10/2010 before the Senior Civil Judge at Basavakalyan. On considering the grounds urged by the appellant, the Senior Civil Judge has framed the following points for consideration in the following manner:
i. Whether trial court is justified in dismissing the suit?
ii. Whether appellant has made out any ground for this court to interfere in the judgment of the trial court?
iii. What order?6
8. The First Appellate Court answered point No.1 in the 'Affirmative' and point No.2 in the 'Negative' and consequently, dismissed the appeal.
9. The learned counsel for the appellant strenuously contends before the Court that, the First Appellate Court has framed two points for consideration. But it has not discussed the oral and documentary evidence placed by the plaintiff and defendants in order to come to an independent conclusion as to whether the judgment of the Trial Court is correct or not and that the same is based on proper and correct appreciation of oral and documentary evidence as well as legal points raised by the parties. The learned counsel drawn my attention to the judgment of the First Appellate Court, which is running about two and half pages and submitted that, it is an overall opinion expressed by the appellate Court 7 considering the judgment of the Trial Court alone and not on the appreciation of oral and documentary evidence adduced by the parties. Therefore, he contends that the First Appellate Court has not disposed of the appeal in accordance with the provisions of Section 96 of the Code of Civil Procedure.
10. Per contra, learned counsel appearing for the respondents strenuously contends that, the First Appellate Court need not go in detail or meticulously into the oral and documentary evidence produced by the parties. If the First Appellate Court decides for confirming the judgment of the Trial Court, then overall appreciation of the materials on record is sufficient. Therefore, he contends that the above substantial question of law has to be answered in the negative and consequently, this second appeal deserves to be dismissed.
8
11. In view of the above rival contentions, before adverting to the judgment of the First Appellate Court, let me refer to few decisions of the Hon'ble Apex Court as to the guidelines issued therein with reference to the jurisdiction of the First Appellate Court and as to how the First Appellate Courts have to deal with the appeals while exercising their powers under Section 96 and Order XLI of the Code of Civil Procedure.
12. In a decision reported in (2016) 13 Supreme Court Cases 124 in the case of Union of India vs K.V.Lakshman and others, the Hon'ble Apex Court has observed that,-
"A right to file first appeal against the decree under Section 96 CPC 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.9
The judgment of the first appellate court, must "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". 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. In the present case, on the one hand the first appellate court (Single Judge of the High Court) observed that the appeal has "absolutely no arguable point" and, on the other hand, to support these observations, the Single Judge devoted 50 pages. This itself indicated that the appeal involved arguable points. The High Court should not have dismissed the appeal in limine but in the first instance should have admitted the appeal and then decided finally after serving notice of the appeal on the respondents."
13. In another ruling reported in (2015) 1 Supreme Court Cases 391 in the case of Vinod 10 Kumar vs Gangadhar, the Hon'ble Apex Court has also observed that,-
"Civil Procedure Code, 1908 - S. 96 r/w Or. 41 R. 31 - First appeal - Nature and Scope - Proper mode for disposal of - Duty of first appellate court - Reiterated, that sitting as court of first appeal, it is the duty of High Court to deal with all issues and evidence led by parties before recording its findings - Suit for specific performance for purchase of house filed by appellant-plaintiff - High Court by impugned judgment dismissing first appeal filed by appellant observing that "there is no justification to throw overboard findings recorded by trial court" - Held, such approach of High Court while deciding first appeal resulted in causing prejudice to appellant whose valuable right to prosecute its case on facts and law was adversely affected, which in turn deprived him of hearing in accordance with law - Impugned judgment unsustainable
- Matter remanded to High Court for deciding first appeal afresh."11
14. In another ruling reported in (2005) 10 Supreme Court Cases 243 in the case of H.K.N.Swami vs Irshad Basith (Dead) by Lrs., the Hon'ble Apex Court has observed that,-
"Civil Procedure Code, 1908 - S. 96 - First appeal - Scope - Powers and duty of first appellate court - Held, first appeal has to be decided on facts as well as on law - First appellate court is required to address itself to all the issues and decide the case by giving reasons - Unfortunately, in the instant case High Court did not record any finding either on facts or law, moreover its order was cryptic and without reasons - Hence matter remitted back to High Court for decision afresh keeping in view observations of Supreme Court in Madhukar Case, (2001) 4 SCC 756, as to disposal of first appeal - Appeal"
15. Bearing in mind the above decisions and also the provisions of Section 96 and Order XLI Rule 31 of 12 the Code of Civil Procedure, it is very much clear that right to file an appeal is a statutory right and it is not at the mercy or discretion of the appellate Court. It is the valuable right of the litigant casting the onerous responsibility upon the First Appellate Court to strictly adhere to the procedure contemplated under Section 96 and Order XLI Rule 31 of the Code of Civil Procedure and then to pass appropriate judicious judgment in the appeal. As could be seen from the above decisions as well as the remedy provided under Section 96 and Order XLI Rule 31 of the Code of Civil Procedure, the appellant can attack all the findings on facts of the Trial Court and also legal points involved in the suit. Basically, it is the duty of the Trial Court to frame necessary issues on the contentious pleadings of the parties. Thereafter, considering the oral and documentary evidence and also legal points involved in the case, issues have to be answered by the Trial Court meticulously and independently by assigning cogent reasons to arrive at a 13 conclusion. Once the Trial Court does its duty in accordance with law, then as a final Court of facts, the First Appellate Court should also virtually take the place of the Trial Court and it should enter into the shoes of the Trial Court. In similar fashion, all the issues shall be answered by considering the evidence and legal points involved in the case. Thereafter, the appellate Court has to come to its independent conclusion either to confirm the judgment of the Trial Court or to deviate from the opinion expressed by the Trial Court by giving divergent judgment. Therefore, it goes without saying that a litigant (appellant) is entitled to a full and fair and independent consideration of the evidence at the appellate stage, anything less than this becomes unjust to him and such type of disposal of the appeals cannot pass through the judicial scrutiny by the higher courts.
14
16. Under the relevant provisions noted supra, the First Appellate Court has got jurisdiction to reverse the judgment of the Trial Court, if the First Appellate Court deems it appropriate. In that context, it is the duty of the First Appellate Court to appreciate each and every point involved in the said case meticulously and give its own reasons as to how it differs from the reasons recorded by the Trial Court. In fact, in similar fashion, the Court has to appreciate the materials on record even to confirm the judgment of the Trial Court. Though such a detailed appreciation of evidence may not be necessary for confirmation of the judgment of the Trial Court, nevertheless, appreciation of evidence both documentary and oral, both on legal and factual points with reference to the pleadings is an absolute legal requirement. Therefore, in view of the above dictum of the Hon'ble Apex Court as well as the mandates of Section 96 and Order XLI Rule 31 of the Code of Civil Procedure, the appellate courts have to discharge their 15 onerous responsibility in accordance with procedure established, if not, such judgments shall not stand to the judicial scrutiny and the same are liable to be set aside.
17. The appellate courts should bear in mind the object of entrusting such vast powers to the appellate courts under Section 96 and Order XLI Rules 31 of the Code of Civil Procedure. The above provisions specifically mandate that the judgment of the appellate Court should be in writing and shall state (a) the point for determination; (b) the decision thereon; (c) the reasons for decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. Under the other provisions i.e., from Order XLI Rule 1 to Order XLI Rule 37 of the Code of Civil Procedure, the Court has got enormous power even to formulate new issues and take further evidence and pass appropriate orders with regard to the issues 16 framed afresh etc. Therefore, such powers entrusted to the appellate Court is intended to see that, as a final Court of facts should adjudicate the rights and liabilities of the parties once and for all so as to leave no further litigation between the parties. Therefore, law imposes upon the Court an imperative duty and obligation of giving adequate and satisfactory judgment as per the above said provisions. It is not that the Court has to indetail go through the findings given by the Trial Court on all the issues. However, general expression on all the issues of the Trial Court only by reiterating the judgment of the Trial Court shall be avoided. There must be an indication in the judgment of the appellate Court itself that, the appellate Court has in fact looked into the entire material evidence placed by the parties coupled with their pleadings and thereafter, the Court has appreciated the same and came to an independent decision. Even assuming for a moment, the provisions of Order XLI Rule 31 of the Code of Civil Procedure are 17 not meticulously followed by framing points for consideration or issues and decision thereon by giving reasons in sequencewise as stated in the provision, but overall reading of the judgment of the appellate Court should satisfy the very object of Order XLI Rule 31 of the Code of Civil Procedure. Even if it has not framed any points for consideration or detailed reasons have not been given for the purpose of confirming the judgment of the Trial Court, but judgment should indicate that, after re-appreciation of facts and law involved, the Court gave its finding on all the issues formulated by the Trial Court though it is not in parawise or sequencewise. The approach of simply making overall opinion by the First Appellate Court has to be categorized as not only illegal but also as incurably defective. Therefore, it should be borne in mind that the First Appellate Court has to comply the Order XLI Rule 31 of the Code of Civil Procedure very strictly.
18
18. The appellate courts should also bear in mind that non-adhering to the statutory provisions, as noted above, would lead to various problems. It would lead to multiplicity of proceedings, waste of judicious time of Higher Courts. It would also obstruct the speedy and timely justice to the litigant public.
19. Having appraised by the legal position by the above guidelines of the Hon'ble Apex Court and also mandatory provision under Section 96 and Order XLI Rule 31 of CPC of the Code of Civil Procedure, now let me consider what exactly has been done by the First Appellate Court in this case.
20. Upto paragraph-34 of the First Appellate Court's judgment, it is nothing but reiteration of the plaintiff's case and defendants' case as well as issues framed by the Trial Court and findings given by the Trial Court and also points formulated by the First Appellate 19 Court. The reasons virtually started from paragraph-35 onwards.
21. On careful perusal of the judgment of the First Appellate Court at Paragraphs-37 and 38, it would indicate that there is a short reiteration of the plaintiff's prayer and the defendants' contention. At paragraphs- 39 to 42, the First Appellate Court has simply done the over all appreciation of the judgment of the Trial Court but not the evidence adduced by the parties. No legal point has been discussed, though the Trial Court has discussed the legal point with regard to the pecuniary jurisdiction of the Court and also the factual aspects with reference to the other issues. On careful perusal of paragraphs 39 to 44, it is nothing but reiteration of some of the observations made by the Trial Court in the judgment. It goes without saying that the Trial Court has made such observations on the basis of appreciation of evidence. But, the Appellate Court did 20 not venture upon to do that. But it is only an appreciation of the judgment of the Trial Court without reference to any evidence at all. This type of appreciation of the judgment of the Trial Court is nowhere contemplated or recognized under any law for the time being in force or the guidelines or principles laid down by the Apex Court, but it is the re- appreciation of the evidence on facts and legal points involved are recognized.
22. Looking to the above said facts and circumstances, the judgment of the First Appellate Court is not in accordance with Section 96 and Order XLI Rule 31 of the Code of Civil Procedure.
Hence, I pass the following:
ORDER (1) The substantial question of law is answered in 'Affirmative'. Consequently, the regular second appeal is hereby allowed.21
(2) The judgment of the First Appellate Court in R.A. No.10/2010 dated 01.04.2013 is hereby set aside.
(3) The matter stands remitted to the First Appellate Court by restoring the Regular Appeal No.10/2010 for disposal in accordance with law, in the light of the observations made by this Court in the body of the judgment.
As rightly submitted by the learned counsel for the respondents, this is a suit of the year 2005. Though the litigation started in the year 1987, it is still not concluded.
In view of the above said submission, the First Appellate Court is hereby directed to dispose of the said appeal in accordance with law within six months from the date of receipt of the copy of this judgment.
To avoid unnecessary consumption of time, the appellant and the respondents are hereby directed to 22 appear before the Trial Court with a certified copy of this judgment on 23.11.2017.
The Registry is hereby directed to send back the records of the First Appellate Court and the Trial Court to the First Appellate Court forthwith.
The Registry is also hereby directed to send a copy of this judgment to the concerned judge who passed the judgment impugned under this appeal for future guidance.
Sd/-
JUDGE NB*/snc