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Thursday, October 1, 2015

the second appeal under Section 100 of the Code = In our considered opinion, it was legally obligatory upon the High Court to properly set out the case of the parties, findings recorded by the Trial Court and the first Appellate Court, arguments of the parties on the questions of law framed and then answer the questions framed in the light of law applicable to the controversy involved by giving its reasoning. Order 20 Rule 4(2) and Rule 5 read with Order 41 Rule 31 provides for this requirement.= The High Court then discussed the issues in paras 5, 6 and 7 which read as under: “5. In view of analysis of the facts mentioned above, the only question that is required to be decided is, whether plaintiff-Chintaman has fulfilled his terms of contract? = “(i) Whether in the facts and circumstances of the present case, the first appellate Court was right in holding that the respondent No.1/plaintiff became exclusive owner of the suit land by virtue of the family arrangement shown in the document (Exh.101)? and that the interpretation of the said document (Exh.136) is properly done by the said Court? (ii) Whether in the facts and circumstances of the present case, the judgment of the first appellate Court is against the spirit of Order 41 Rule 31 of C.P.C. is unsustainable and deserves to be interfered with?” On perusal of the judgment it clearly shows that the High Court neither set out the case of the parties from their pleadings properly nor mentioned the findings recorded by the Trial Court and nor of the first appellate court. The High Court also did not examine the case in the context of legal provisions governing the issues and nor dealt with any submissions urged by the parties much less to record categorical finding on the questions framed. In our considered opinion, it was legally obligatory upon the High Court to properly set out the case of the parties, findings recorded by the Trial Court and the first Appellate Court, arguments of the parties on the questions of law framed and then answer the questions framed in the light of law applicable to the controversy involved by giving its reasoning. Order 20 Rule 4(2) and Rule 5 read with Order 41 Rule 31 provides for this requirement. We cannot, therefore, subscribe to the manner in which the High Court cursorily decided the appeal as we find that the impugned judgment does not satisfy the requirement mentioned above. In such circumstances, the remand of the case to the High Court appears to be proper.The appeal thus succeeds and is accordingly allowed. The impugned judgment is set aside. The matter is remanded to the High Court for deciding the second appeal afresh on merits in accordance with law.

                                                            (REPORTABLE)   [
                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL No.  7991 OF 2015
                   (ARISING OUT OF SLP (C) No. 18029/2014)


Chintaman Namdev Patil (Dead)     …..….Appellant(s)


                             VERSUS


Sukhdev Namdev Patil & Anr.       ……Respondent(s)



                               J U D G M E N T
Abhay Manohar Sapre, J.
Leave granted.
This appeal is filed by the plaintiff against the judgment and  order  dated
25.02.2014 passed by the  High  Court  of  Judicature  of  Bombay  Bench  at
Aurangabad in Second Appeal No. 332 of 2007 which  arises  out  of  judgment
and order dated 11.04.2007 passed by the  District  Judge-3,  Aurabgabad  in
Regular Civil Appeal No. 43 of 2005.
By impugned judgment, the High Court allowed the second appeal filed by  the
respondents herein.
4.    In order to appreciate the issues involved in the appeal which lie  in
a narrow compass, few relevant facts need mention infra.
5.    The  appellant  (plaintiff)  filed  a  suit  against  the  respondents
(defendants) herein in the Court of Civil Judge (junior  Division)  Soyagaon
being Regular Civil Suit No.  14  of  2001  for  declaration  and  perpetual
injunction.  The appellant sought a declaration that he is the owner of  the
suit land bearing no Gat No. 9 admeasuring 4 H  90  R  situated  at  Village
Ghosala,  Taluka  Soegaon,  Dist.  Aurangabad.  The  appellant  also  sought
injunction against the respondents restraining them from interfering in  his
possession. The respondents joined issues and contested the suit  by  filing
written statement. The Trial Court framed several issues arising out of  the
pleadings  and  parties  led  their   evidence.   The   Trial   Court   vide
judgment/decree dated 14.12.2004 dismissed the suit.
6.    The appellant, felt aggrieved, filed appeal being  R.C.A.  No.  43  of
2005 before the District Judge-3,  Aurangabad.  Vide  judgment/decree  dated
11.04.2007, the first appellate Court allowed the  appeal  and  decreed  the
appellant's suit by granting the decree as prayed by him.
7.    The respondents, felt aggrieved, filed second appeal  being  S.A.  No.
332 of 2007 before the High Court.
8.     The  High  Court  admitted  the  second  appeal  on  two  substantial
questions of law arising in the case. By impugned judgment, the  High  Court
allowed the second appeal  and  in  consequence  dismissed  the  appellant's
suit. It is against this judgment, the plaintiff has filed  this  appeal  by
way of special leave.
9.    Heard learned counsel for the parties.
10.   Learned counsel  appearing  for  the  appellant  while  assailing  the
legality and correctness of the impugned order made twofold submissions.  In
the first place,  learned  counsel  contended  that  the  High  Court  while
allowing the appeal  did  not  give  any  reason  and  nor  dealt  with  the
substantial questions of law framed much less answered them on their  merits
thereby committed a jurisdictional  error  in  allowing  respondents  appeal
which resulted in dismissal of appellants suit. It was his  submission  that
in the absence of any discussion much less finding on  the  two  substantial
questions of law framed, the  High  Court  failed  to  exercise  its  second
appellate jurisdiction under Section 100 of the  Code  of  Civil  Procedure,
1908 (hereinafter referred to as “the Code”) in its proper  perspective  and
hence impugned judgment being unsustainable, deserves to  be  set  aside  by
remanding the case to the High Court for deciding the second  appeal  afresh
on merits in accordance with law.
11.   In the second place, the learned counsel for the  appellant  contended
on merits that the  impugned  judgment  is  also  not  legally  sustainable.
Learned  counsel  then  made  attempt  to  point  out  the  errors  of   the
controversy on merits.
12.   In reply, learned counsel for the respondent  supported  the  impugned
judgment contending that no interference  is  called  for  in  the  impugned
judgment.
13.   Having heard the learned counsel for the parties  and  on  perusal  of
the record of the case, we are inclined to accept the  first  submission  of
the learned counsel for the appellant finding force therein.
14.   It is clear  that  the  High  Court  admitted  the  second  appeal  on
following two substantial questions of law:
“(i)  Whether in the facts and circumstances of the present case, the  first
appellate Court was right in  holding  that  the  respondent  No.1/plaintiff
became exclusive owner of the suit land by virtue of the family  arrangement
shown in the document (Exh.101)? and that the  interpretation  of  the  said
document (Exh.136) is properly done by the said Court?

(ii)  Whether in the facts  and  circumstances  of  the  present  case,  the
judgment of the first appellate Court is against  the  spirit  of  Order  41
Rule 31 of C.P.C. is unsustainable and deserves to be interfered with?”

15.   The High Court then discussed the issues in paras 5,  6  and  7  which
read as under:
“5.  In view of analysis of the facts mentioned  above,  the  only  question
that  is  required  to  be  decided  is,  whether  plaintiff-Chintaman   has
fulfilled his terms of contract?

6.      On perusal of the evidence, I found that  the  finding  recorded  in
this regard by learned Judge of the trial Court is correct.   Learned  Judge
of the lower appellate Court, however, did not record proper finding on  the
factual aspect of the case.  Because of his failure to  do  so,  the  entire
judgment went haywire.  Learned counsel  for  the  parties  fairly  admitted
that at least, document Exhibit 136 is binding  on  the  parties.   Document
116, which is not signed by the  plaintiff-Chintaman,  is  not  admitted  by
him, but in view of his admission of document Exhibit 136, it is clear  that
he admitted the agreement.  On perusal of this agreement, it is  clear  that
he had agreed to repay the entire loan mentioned  above  for  getting  clear
title to the land Gat No. 9.  He also admitted that in case of  his  failure
to do so, he would accept the  partition  of  the  land  amongst  the  three
brothers.

7.    In view of the finding of facts that the plaintiff did not  repay  the
loan amount and that he had committed default,  he  would  not  be  able  to
claim ownership to the entire land Gat No.9.  The  suit  should,  therefore,
fail.  The Second Appeal is allowed.  The suit stands dismissed.”

16.   On perusal of the judgment  it  clearly  shows  that  the  High  Court
neither set out the case of the parties from their  pleadings  properly  nor
mentioned the findings recorded by the Trial Court  and  nor  of  the  first
appellate court. The High Court  also  did  not  examine  the  case  in  the
context of legal provisions governing the issues  and  nor  dealt  with  any
submissions urged by the parties much less to record categorical finding  on
the questions framed.
17.   On the contrary, we notice that the High Court in  para  5  formulated
another question as the only question  arising  in  the  case  for  decision
which was not formulated as substantial  question  of  law  along  with  two
questions already framed.
18.   In our considered opinion, it was legally  obligatory  upon  the  High
Court to properly set out the case of the parties, findings recorded by  the
Trial Court and the first Appellate Court, arguments of the parties  on  the
questions of law framed and then answer the questions framed  in  the  light
of law applicable to the  controversy  involved  by  giving  its  reasoning.
Order 20 Rule 4(2) and Rule 5 read with Order 41 Rule 31 provides  for  this
requirement.
19.   We may also consider apposite to  mention  that  this  Court  had  the
occasion to examine the scope of Section 100 of the Code in  Santosh  Hazaro
vs. Purushottam Tiwari (deceased) by  LRs.,  [(2001)  3  SCC  179],  wherein
Justice R.C. Lahoti  (as  His  Lordship  then  was  and  later  became  CJI)
speaking for the three-judge Bench explained the scope and  jurisdiction  of
the High Court while deciding the second appeal under  Section  100  of  the
Code. The High Court, in our opinion, should have kept in consideration  the
law laid down in this case while deciding the second appeal.
20.    We cannot, therefore, subscribe to  the  manner  in  which  the  High
Court cursorily decided the appeal as we find  that  the  impugned  judgment
does not satisfy the requirement mentioned above.   In  such  circumstances,
the remand of the case to the High Court appears to be proper.
21.    The appeal thus succeeds and is  accordingly  allowed.  The  impugned
judgment is set aside.  The  matter  is  remanded  to  the  High  Court  for
deciding the second appeal afresh on merits in accordance with law.
22.   We, however, make it clear that we have not examined on the merits  of
the issues involved in this case and hence the High Court would  decide  the
appeal without being influenced by any observation made in this judgment.
23.   Since the case is quite old, we request the  High  Court  to  expedite
its hearing and dispose of the case preferably within six months.



……...................................J.
                                  [J. CHELAMESWAR]


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

      New Delhi;
September 28, 2015.
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