C.Venkata Swamy vs H.N. Shivanna (D) By Lr. Etc.

C. Venkata Swamy ….Appellant(s)

VERSUS

H.N. Shivanna(D) by L.R. & Anr. Etc. …Respondent(s)

JUDGMENT

Abhay Manohar Sapre, J.

1. These appeals are filed by the plaintiff against

the final judgment and order dated 02.11.2006

passed by the High Court of Karnataka at Bangalore

in Regular First Appeal Nos.158 and 159 of 2005

whereby the High Court dismissed the appeals filed

by the appellant herein

2. The facts of the case lie in a narrow compass. Signature Not Verified Digitally signed by ASHA SUNDRIYAL Date: 2017.12.04 Even the issue arising in these appeals is a short 16:07:19 IST Reason: 1 one. It would be clear from the facts mentioned

hereinbelow.

3. The appellant is plaintiff in O.S. No.

6640/1996 and defendant in O.S. No. 2150 of 1992

whereas the respondents are defendants in O.S. No.

6640/1996 and plaintiffs in O.S. No. 2150 of 1992

in the suits out of which these appeals arise.

4. The appellant filed a suit being O.S. No.

6640/1996 in the Court of City Civil Judge,

Bangalore against the respondents for a declaration

and permanent injunction in relation to the land

described in detail in the plaint (hereinafter referred

to as "suit land") whereas original respondent No.1

also filed a cross suit being O.S. No. 2150 of 1992

against the appellant in relation to the suit land.

5. Both the suits were clubbed together for their

disposal because both were between the same

parties and pertained to same subject matter.

6. Parties contested the suits and adduced

evidence. The Trial Court, by common

2 judgment/decree dated 04.12.2004 dismissed the

suit filed by the appellant, i.e., O.S. No. 6640/1996

and decreed the suit filed by respondent No.1, i.e.,

O.S. No. 2150/1992.

7. The plaintiff in O.S. 6640/1996 felt aggrieved

and filed two first appeals under Section 96 of the

Code of Civil Procedure, 1908 (hereinafter referred

to as “the Code”) before the High Court of

Karnataka. By impugned judgment/decree, the

Single Judge dismissed both the first appeals and

affirmed the judgment/decree of the Trial Court,

which has given rise to filing of the present appeals

by special leave by the plaintiff in O.S. No.

6640/1996 in this Court.

8. Heard Ms. Kiran Suri, learned senior counsel

for the appellant and Mr. Rajesh Mahale, learned

counsel for the respondents.

9. Having heard the learned counsel for the

parties and on perusal of the record of the case, we

are constrained to allow the appeals, set aside the

3 impugned judgment and remand the case to the

High Court for deciding both the first appeals afresh

on merits in accordance with law.

10. The need to remand the case to the High

Court has occasioned for the reason that the Single

Judge dismissed the appeals very cursorily and

without undertaking any appreciation of evidence,

dealing with various issues arising in the case and

discussing the arguments raised by the parties in

support of their case. In other words, the disposal of

the two first appeals could not be said to be in

conformity with the requirements of Section 96 read

with Order 41 Rule 31 of the Code.

11. 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

4 duty of the first Appellate Court to appreciate the

entire evidence and arrive at its own independent

conclusion, for reasons assigned, either of

affirmance or difference.

12. 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.

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 Code 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

5 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)

14. This Court also in various cases reiterated the

aforesaid principle and laid down the powers of the

Appellate Court under Section 96 of the Code while

deciding the first appeal.

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

6 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…………”

17. 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 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:

(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

7 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 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;

8 (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 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

9 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.”

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 and

Union of India vs. K.V. Lakshman & Ors. (2016)

13 SCC 124.

22. In the light of foregoing discussion, we have no

option but to allow these appeals, set aside the

impugned judgment and remand the case to the

High Court for deciding the appeals afresh on merits

in accordance with law keeping in view our

observations made supra.

23. We, however, make it clear that we have

refrained from making any observation on merits of

the controversy having formed an opinion to remand

the case to the High Court. The High Court would,

therefore, decide the appeals uninfluenced by any of

10 the observations in accordance with law. Since the

appeals are quite old, we request the High Court to

ensure expeditious disposal of the appeals.

24. The appeals are accordingly allowed. Impugned

judgment is set aside with the aforesaid directions.

………...................................J. [ABHAY MANOHAR SAPRE]

…...

……..................................J. [NAVIN SINHA]

New Delhi;

December 04, 2017

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