B.V.Nagesh & Anr vs H.V.Sreenivasa Murthy

B.V. Nagesh & Anr. .... Appellant (s)

Versus

H.V. Sreenivasa Murthy .... Respondent(s)

ORDER

1) Leave granted.

2) Heard learned senior counsel for the appellants and

respondent appearing in person.

3) The impugned judgment passed by the High Court arose out

of regular first appeal filed under Section 96 CPC. It is the

grievance of the appellants that the High Court, without adverting

to all the factual details and various grounds raised, disposed of

the appeal in a cryptic manner. In the light of the above assertion,

we verified the impugned judgment of the High Court. The High

Court, after narrating the pleadings of both parties, without

framing points for determination and considering both facts and

1 law set aside the judgment and decree of the trial Court and

modified the same without proper discussion and assigning

adequate reasons.

4) How regular first appeal is to be disposed of by the appellate

Court/High Court has been considered by this Court in various

decisions. Order XLI of C.P.C. 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) reasons for the decision; and -

d) where the decree appealed from is reversed or varied, the

relief to which the appellant is entitled.

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 therein is open

for re-hearing 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

2 as a court of 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 vs. Purushottam Tiwari, (2001)

3 SCC 179 = JT (2001) 2 SC 407 and Madhukar and Others vs.

Sangram and Others, (2001) 4 SCC 756]

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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6) Inasmuch as the first appeal is pending from 2003, we

request the High Court to dispose of the same as expeditiously as

possible. The civil appeal is disposed of accordingly.

..........................................J. (P. SATHASIVAM)

..........................................J. (DR. B.S.CHAUHAN) NEW DELHI;

SEPTEMBER 24, 2010.

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