Himachal Pradesh High Court
Chamaroo (Deceased) Through His ... vs Om Chand on 25 August, 2023
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
RSA No. 139 of 2017
.
Decided on: 25.08.2023
Chamaroo (deceased) through his LRs
...Appellants/defendants
Versus
Om Chand ...Respondent/plaintif
Coram:
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
No.
Whether approved for reporting? 1
For the Appellants : Mr. Jagan Nath, Advocate.
For the Respondent : Mr. Hemant Vaid, Advocate.
Tarlok Singh Chauhan, Judge (Oral)
Even though, the instant appeal has been formally
admitted on 24.05.2017 and even substantial questions of law
stand formulated, however, I find that the appeal has not been
decided by the learned first Appellate Court, as is otherwise
required under the law.
2. It is settled principle of law that right to file first
appeal against the decree under Section 96 of the Code of Civil
Procedure 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 learned trial Court and it is open to the appellant
to attack all findings of fact or/and of law in the first appeal. It is
Whether reporters of the local papers may be allowed to see the judgment? yes
duty of the first appellate Court to appreciate the entire evidence
and may come to a diferent conclusion from that of the trial
.
Court. While doing so, the judgment of the Appellate Court must
reflect its conscious application of mind and record findings
supported by reasons, on all 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 diferent finding. This would satisfy the
court hearing a further appeal that the First Appellate Court had
discharged the duty expected of it.
3. The scope, ambit and power of the first Appellate
Court while deciding the first appeal have been subject matter of
various judicial pronouncements and I may refer to the
pronouncement of the Hon'ble Supreme Court in Shasidhar and
others vs. Smt. Ashwini Uma Mathad and another 2015
AIR SCW 777, wherein it was held as follows:
"11. Having heard learned counsel for the parties and on
perusal of the record of the case and examining the issue
arising in this appeal, we find force in the submissions of
the learned counsel for the appellants.
12. The powers of the first appellate Court, while deciding
the first appeal under Section 96 read with Order XLI Rule
31 of the Code, are indeed well defined by various judicial
pronouncements of this Court and are, therefore, no more
res integra.
.
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 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 under:
"1. The plaintif, 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 plaintif'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 plaintif 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 in a 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 of the Code.
.
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 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 as sign its own reasons for arriving at
a diferent 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 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.
18. In H.K.N. Swami v. Irshad Basith ,(2005) 10 SCC
243, this Court (at p. 244) stated as under:
"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."
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 re-appreciate the entire
evidence and come to a diferent 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; (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 putforth, 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."
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. This Court has recently taken
.
the same view on similar facts arising in Vinod Kumar
vs. Gangadhar, 2014(12) Scale 171."
4. Similar issue came up before the Hon'ble Supreme
Court in Union of India Vs. K.V. Lakshman and others, 2016
AIR SC 3139, wherein it was held:-
"22. 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 duty of the first appellate Court to
appreciate the entire evidence and may come to a
conclusion diferent from that of the Trial Court.
23. 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.
24. 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 to decide the first appeal. In his distinctive style of
writing with subtle power of expression, the learned judge
held as under:
"1. The plaintif, 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 plaintif'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 plaintif 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
r 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)
25. 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.
26. We consider it apposite to refer to some of the
decisions.
27. 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
diferent finding. This would satisfy the court hearing a
further appeal that the first appellate court had
discharged the duty expected of it............"
28. 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.
29. 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."
30. Again in Jagannath v. Arulappa & Anr., (2005 12
SCC 303, while considering the scope of Section 96 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 re-appreciate the entire
evidence and come to a diferent conclusion........."
31. 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;
(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."
32. 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."
5. Similar reiteration of law can be found in a very
recent judgment of Hon'ble Supreme Court in Laliteshwar
Prasad Singh & Ors. v. S.P. Srivastava (deceased) through
LRs, 2017 (2) SCC 415, wherein it was held as under:-
"12. An appellate court is the final court of facts. The
judgment of the appellate court must therefore reflect
.
court's application of mind and record its findings
supported by reasons. The law relating to powers and
duties of the first appellate court is well fortified by the
legal provisions and judicial pronouncements. Considering
the nature and scope of duty of first appellate court, in
Vinod Kumar v. Gangadhar (2015) 1 SCC 391, it was
held as under:-
"12. In Santosh Hazari v. Purushottam Tiwari
(2001) 3 SCC 179, this Court held as under: (SCC pp.
188-89, para 15)
"15. ... 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
diferent finding. This would satisfy the court hearing a
further appeal that the first appellate court had
discharged the duty expected of it."
The above view has been followed by a three Judge
Bench decision of this Court in Madhukar v. Sangram
(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.
13. In H.K.N. Swami v. Irshad Basith (2005) 10 SCC
.
243, this Court stated as under: (SCC p. 244, 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."
14. Again in Jagannath v. Arulappa (2005) 12 SCC
303, while considering the scope of Section 96 of the
Code of Civil Procedure, 1908, this Court observed as
follows: (SCC p. 303, para 2)
15. Again in B.V. Nagesh v. 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: (SCC pp. 530-
31, paras 3-5)
"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;
(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) 9 3 SCC 179, SCC p. 188, para 15 and
Madhukar v. Sangram (2001) 4 SCC 756 SCC 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.
6. Adverting to the facts of the instant case, it would be
noticed that the learned first Appellate Court had not at all
adverted to the findings and reasons recorded by the learned
Court below and has, in fact, simply chosen to wrote a separate
judgment, that too, without taking into consideration any of the
facts and reasons that prevailed upon the learned trial court to
dismiss the suit.
7. In view of the aforesaid exposition of law, the
judgment and decree, passed by the learned First Appellate
Court, cannot be countenanced and sustained and, therefore, the
Court has no option, but to set aside the judgment and decree,
so passed by it and remand the matter for decision afresh.
Ordered accordingly.
8. Parties are directed to appear before the learned first
Appellate Court on 11.09.2023.
9. Since the suit was instituted more than a decade
back i.e. on 22.01.2013, the learned first Appellate Court is
requested to decide the same as expeditiously as possible and in
no event later than 31.12.2023.
10. The appeal is disposed of in the aforesaid terms, so
also the pending applications, if any.
.
(Tarlok Singh Chauhan)
Judge
25th August, 2023
(sanjeev)
r to
