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Thursday, January 1, 2015

2014- Oct.Month- S.C. - CIVIL APPEAL NO. 9681 OF 2014 (ARISING OUT OF SLP(C) NO.26124/2013) Vinod Kumar Appellant(s) VERSUS Gangadhar Respondent(s)

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELALTE JURISDICTION

                        CIVIL APPEAL NO. 9681 OF 2014
                    (ARISING OUT OF SLP(C) NO.26124/2013)
      Vinod Kumar                                 Appellant(s)


      Gangadhar                        Respondent(s)

                               J U D G M E N T
Abhay Manohar Sapre, J.

1)    We have perused the Office Report dated 10.10.2014. It discloses  that
despite last opportunity granted to the respondent, he  has  not  filed  any
counter affidavit till date.  Today,  when  the  matter  was  taken  up  for
hearing, there was no  representation  for  the  respondent.  Therefore,  we
proceed to decide the appeal on merits.
2)    Leave granted.
3)     This  is  a  civil  appeal  filed  by  the  plaintiff   against   the
judgment/decree dated 21.03.2013 passed by the  single  Judge  of  the  High
Court of M. P., Indore Bench in First Appeal No. 173 of 1999, which in  turn
arises out of the judgment and decree dated 27.02.1999 passed by the  second
Additional District Judge, Mandsaur in Civil Suit No. 36A/97.
4)    In order to appreciate the short issue involved in this appeal, it  is
necessary to state a few relevant facts:
5)    The appellant (plaintiff) filed a civil suit in the  Court  of  second
Additional District Judge, Mandsore being Civil Suit no. 36A/97 against  the
respondent  (defendant)  for  specific  performance  of  the  contract   for
purchase of house bearing no. 9, situated  at  Madhavganj  Mandsaur  (herein
after referred to as "the suit house”).  According  to  the  appellant,  the
respondent was the owner of the suit house and he  entered  into  a  written
agreement dated 05.01.1992 with the appellant to sell the suit house to  the
appellant for a total sum of Rs.1,48,000/-. It was  alleged  in  the  plaint
that the appellant, in terms of the agreement,  offered/tendered  Rs.9,989/-
to the respondent towards part payment of the  sale  consideration,  but  he
declined to accept the amount and avoided        to perform his part of  the
agreement. This led to the  serving  of  notice  by  the  appellant  to  the
respondent calling upon him  to  perform  his  part  of  the  agreement  and
execute the sale deed of the suit house in  the  appellant’s  favour.  Since
the respondent  failed  to  ensure  compliance  of  the  legal  notice,  the
appellant  filed  the  aforementioned  civil  suit  against  the  respondent
seeking specific performance of the agreement in question.  It  was  alleged
that the appellant was  ready  and  willing  to  perform  his  part  of  the
agreement but it was respondent who failed to perform  his  part  and  hence
this suit.
6)    The respondent filed the written statement  denying  allegations  made
in  the  plaint.  According  to  the  respondent,  there  was  no  concluded
agreement between the parties and in any event, the appellant having  failed
to  perform  his  obligations,  which  were  agreed  upon  in  the   alleged
agreement, he was  not  entitled  to  seek  enforcement  of  such  agreement
against the respondent in relation to the suit house.
7)    Thereafter, the trial Court framed the issues.  Parties  then  adduced
evidence  in  support  of  their  pleadings.  The  trial  Court   vide   its
judgment/decree dismissed the suit and declined to grant any relief  to  the
appellant. Feeling aggrieved with the said  judgment/decree,  the  appellant
filed First Appeal No. 173 of 1999 under Section 96 of  the  Code  of  Civil
Procedure, 1908 in the High Court of M.P. at Indore Bench.
8)    The learned Single Judge, by impugned judgment,  dismissed  the  first
appeal  filed  by  the  appellant   and   in   consequence   confirmed   the
judgment/decree passed by the trial court, which had  dismissed  appellant's
civil suit. It is against this confirmation of the dismissal of the suit  by
the High Court, the appellant felt aggrieved and filed this appeal.
9)    Learned Counsel for the appellant while  assailing  the  legality  and
correctness of the impugned judgment contended that the High  Court  without
adverting to all the factual details  and  various  grounds  raised  in  the
first appeal, disposed of  the  same  in  a  cryptic  manner.  According  to
learned  counsel,  the  High  Court  neither  dealt  with  any   issue   nor
appreciated the ocular and documentary evidence adduced by the  parties  nor
examined the legal principles applicable to the issues arising in  the  case
and nor rendered its  findings  on  any  contentious  issues  on  which  the
appellant was non suited by the trial court though urged  by  the  appellant
in support of the appeal. Learned counsel further contended that it was  the
duty of the High Court being the first appellate court  and  exercising  its
appellate powers under Section 96 read with Order 41 Rule 31  ibid  to  have
dealt  with  the  submissions  which  were  urged  by  the  appellant  after
appreciating the entire evidence on facts, independent to  the  findings  of
the trial Court and should have come to its own conclusion keeping  in  view
the legal principles governing the issues and since it was not done  by  the
High Court, the impugned judgment is not legally  sustainable.  Lastly,  the
learned counsel urged that in case his arguments are  accepted,  the  remand
of the case to the High Court to decide  the  appeal  on  merits  afresh  is
10)   Having heard the learned counsel for the appellant and on  perusal  of
the record of the case and on examining the issue arising in the appeal,  we
find force in the submission of the learned counsel for the appellant.
11)   The powers of the first  appellate  court  while  deciding  the  first
appeal under Section 96 read with Order 41 Rule 31  of  the  Code  of  Civil
Procedure, 1908 are indeed well defined by various  judicial  pronouncements
of this Court and are, therefore, no more res integra.
12)   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
“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
                              (Emphasis supplied)
13)   This Court in 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 ibid.
14)   We consider it apposite to refer to some of the decisions
15)   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…………”

16)   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.
17)   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.”

18)   Again in Jagannath v. Arulappa & Anr., (2005) 12 SCC 303, while
considering the scope of Section 96 of 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……...”

19)   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
(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  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.”

20)   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.
21)   Applying the aforesaid principle to the facts of  the  case,  we  find
that the High Court while deciding the  first  appeal  failed  to  keep  the
principle in consideration and rendered the impugned  decision.  Indeed,  it
is clear by mere reading of para 4 of the impugned order quoted below:
“After hearing learned  counsel  for  the  parties  and  going  through  the
evidence, I do not find any  justification  to  throw  over  board  findings
recorded by the trial court.  After due appreciation of evidence, I  do  not
find any merit and substance in this appeal.   Same  stands  dismissed  with
costs.  Counsel fee Rs.1000/-, if certified.  Ordered  accordingly.”

22)   In our considered opinion, the High Court did not  deal  with  any  of
the submissions urged by the appellant and/or respondent nor  it  took  note
of the grounds taken by the appellant in grounds  of  appeal  nor  made  any
attempt to appreciate the evidence adduced by the parties in  the  light  of
the settled legal principles and decided case law applicable to  the  issues
arising in the case with a view to find out as to whether  judgment  of  the
trial court can be sustained or not and if so, how, and if not, why?
23)   Being the first appellate court, it was the duty of the High Court  to
have decided  the  first  appeal  keeping  in  view  the  scope  and  powers
conferred on it under Section 96 read with Order 41 Rule 31  ibid  mentioned
above.  It  was  unfortunately  not  done,  thereby,  resulting  in  causing
prejudice to the appellant whose valuable right to prosecute  in  the  first
appeal on facts and law was adversely affected which, in turn, deprived  him
of a hearing in the appeal in accordance with law.
24)   It is for this reason, we are unable to uphold the  impugned  judgment
of the High Court.
25)   The appeal thus succeeds and  is  accordingly  allowed.  The  impugned
judgment is set aside.
26)   The case is remanded to the High Court for deciding the  first  appeal
afresh, keeping in view the principle of law laid down by this Court  quoted
27)   However, we make it clear that we have not applied  our  mind  to  the
merits of the issues involved in the case and hence, the  High  Court  would
decide the appeal strictly in accordance with law on merits uninfluenced  by
any of our observations, which we have  refrained  from  making  on  merits.
Needless  to  observe,  the  High  Court  will  do  so  after  affording  an
opportunity of hearing to both the parties and especially to the  respondent
because no one appeared today for him and hence, the High Court  would  send
the respondent a fresh notice of  the final hearing of the appeal.
28)   Since the case is quite old, we request the  High  Court  to  expedite
its hearing.


                       [ABHAY MANOHAR SAPRE]

      New Delhi;
      October 13, 2014.

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