Karnataka High Court
Shri.Vittal Prasad Pvt Co. Ltd vs Shri. Sampatkumar Shidram ... on 13 July, 2022
Bench: E.S.Indireshpresided Byesij
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RSA No. 100302 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 13TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 100302 OF 2022 (POS-)
BETWEEN:
SHRI.VITTAL PRASAD PVT CO. LTD.,
BY ITS CHIARMAN (MANAGING DIRECTORS),
SHRI VIJAY SHIVAPPA BURLI,
AGE: 57 YEARS, OCC: BUSINESS,
R/O ATHANI-591304, DIST BELAGAVI.
...APPELLANT
(BY SRI. B S KAMATE, ADVOCATE)
AND:
SHRI. SAMPATKUMAR SHIDRAM SHIVANAGI
AGE 78 YEARS, OCC DOCTOR,
R/O U.S.A. THROUGH HIS GENERAL POWER OF
ATORNEY, SHRI.SUNIL IRAPPA SHIVANAGI,
AGE 57 YEARS, OCC BUSINESS,
R/O SHETTARMATH GALLI,
ATHANI-591304, DIST BELAGAVI.
...RESPONDENT
(BY SRI. SURABHI KULKARNI FOR SRI. R. M. KULKARNI,
ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 15.01.2021
PASSED IN R.A.NO.44/2016 ON THE FILE OF THE ADDITIONAL
SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST
CLASS, ATHANI, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 30.06.2016, PASSED IN
O.S. NO.1606/2008 ON THE FILE OF THE II ADDITIONAL CIVIL
JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, ATHANI,
DECREEING THE SUIT FILED FOR POSSESSION AND MENSE
PROFITS/DAMAGES.
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RSA No. 100302 of 2022
THIS APPEAL COMING ON FOR FINAL DISPOSAL THIS
DAY. THE COURT DELIVERED THE FOLLOWING.
JUDGMENT
This Regular Second Appeal is filed by the defendant,
challenging the judgment and decree dated 15.01.2021 passed in
R.A.No.44/2016 on the file of the Addl. Senior Civil Judge and
JMFC, Athani (hereinafter referred to as 'the First Appellate Court',
for brevity), confirming the judgment and decree dated 30.06.2016
passed in O.S.No.1606/2008 on the file of the II Addl. Civil Judge
and JMFC, Athani (hereinafter referred to as 'the trial Court', for
brevity), decreeing the suit of the plaintiff.
2. For the sake of convenience, the parties to this appeal
shall be referred to in terms of their status and ranking before the
trial Court.
3. The relevant facts for adjudication of this appeal are
that, the plaintiff claims to be the owner in possession of the suit
property bearing CTS No.1135 measuring 44.31 sq. meters
situated at S.S.Road, Athani. Plaintiff has let out the suit schedule
property in favour of the defendant for running Ghatage Patil
Transport Office on a monthly rental basis and the tenancy is not of
RSA No. 100302 of 2022
registered deed. The rent of the suit schedule property was
Rs.417/- per month since 2002. It is further averred in the plaint
that, the defendant was irregular in making payment of rent to the
plaintiff and as such, plaintiff caused legal notice dated 01.01.2008
to the defendant, terminating the tenancy on 31.12.2007 and as
such, called upon the defendant to handover the vacant
possession of the suit property by paying the arrears of rent of
Rs.2,919/-. The said notice was duly served on the defendant,
however, the defendant continued to be in unauthorised occupancy
of the suit schedule property and as such, plaintiff filed O.S.
No.1606/2008 on the file of the trial Court seeking vacation of the
premises by the defendant.
4. After service of notice, defendant entered appearance
and filed detailed written statement denying the averments made
in the plaint. Defendant has not disputed the relationship with the
plaintiff. However, it is the specific defence of the defendant that
the defendant was paying rent to the plaintiff annually up to
31.04.2007 and the plaintiff has not met the defendant as the
plaintiff was residing at America and therefore, the defendant has
sent the rent for the period from 01.04.2007 to 31.08.2008 of
RSA No. 100302 of 2022
Rs.5,000/- by Money Order to the Power of Attorney holder of the
plaintiff - Sunil Ishwarappa Shivanagi. It is further contended that,
the plaintiff does not require suit schedule property for himself and
therefore, sought for dismissal of the suit.
5. The trial Court based on the pleadings on record
formulated the issues for its consideration.
6. In order to establish their case, the Power of Attorney
of the plaintiff was examined as PW1 and produced 5 documents
and the same were marked as Exs.P1 to P5. Defendant was
examined as DW.1 and produced 10 documents and the same
were marked as Exs.D1 to D10. The trial Court after considering
the material on record, by its judgment and decree dated
30.06.2016, decreed the suit and as such directed the defendant to
vacate the suit schedule property. Feeling aggrieved by the same,
defendant has filed R.A.No.44/2016 before the First Appellate
Court and the same was resisted by the plaintiff.
7. The First Appellate Court after considering the material
on record, by its judgment and decree dated 15.01.2021, dismissed
the appeal, consequently, confirmed the judgment and decree
RSA No. 100302 of 2022
passed in O.S.No.1606/2008. Feeling aggrieved by the same, the
defendant has preferred this Regular Second Appeal.
8. I have heard Sri.B. S. Kamate, learned counsel
appearing for the appellants and Ms. Surabhi Kulkarni, learned
counsel appearing for the caveator/respondent.
9. Sri. B. S. Kamate, learned counsel appearing for the
appellants contended that, the impugned Judgment and Decree
passed by the First Appellate Court is cryptic in nature and the First
Appellate Court has not followed the scope of Order 41 Rule 31 of
Code of Civil Procedure. He also refers to the grounds urged in the
memorandum of appeal and argued that, since the First Appellate
Court has not considered the grounds urged by the appellant
herein as required under law, the impugned judgment and decree
passed by the First Appellate Court is contrary to the law declared
by the Hon'ble Apex Court in the case of Murthy and Others Vs.
C. Saradambal and Others reported in AIR 2022 SC 167.
10. Per contra, Ms. Surabhi Kulkarni, learned counsel
appearing for the caveator/respondent sought to justify the
impugned judgment and decree passed by the Courts below. He
further contended that, the First Appellate Court has taken note of
RSA No. 100302 of 2022
the grievance of the appellant herein at paragraph 11 of the
impugned judgment and decree of the First Appellate Court and
therefore, he requested for dismissal of the appeal.
11. Heard the learned counsel appearing for the parties
and perused the records. This Court admitted the matter and
framed the following substantial question of law for consideration:
i. Whether re-appreciation of the evidence by the First
Appellate Court is in accordance with Order 41 Rule 31 of
Code of Civil Procedure?
12. Having heard the learned counsel appearing for the
parties, it is not in dispute that the appellant herein is the lessee of
the plaintiff. The only grievance raised by the appellant herein is
with regard to non-consideration of the grounds raised in the
memorandum of appeal. Learned counsel appearing for the
respondent made available the memorandum of appeal filed before
the First Appellate Court. I have carefully considered the grounds
urged by the appellant herein before the First Appellate Court. It is
well established principle in law that the First Appellate Court,
being a last Court for finding of fact, ought to disposed of the
appeal in terms of the legislative intent of Order 41 Rule 31 Code of
Civil Procedure. In this regard, it is useful to refer to the judgment
RSA No. 100302 of 2022
of the Hon'ble Apex Court in the case of Murthy (supra).
Paragraphs 37 to 41 of the said judgment reads as under:
"37. Before parting with this case, we would like to reiterate
that in this case, the High Court has dealt with the judgment
of the learned Trial Judge in a short cut method, bereft of all
reasoning while reversing the judgment of the Trial Court
both on facts as well as law. It is trite that the Appellate Court
has jurisdiction to reverse, affirm or modify the findings and
the judgment of the Trial Court. However, while reversing or
modifying the judgment of a Trial Court, it is the duty of the
Appellate Court to reflect in its judgment, conscious
application of mind on the findings recorded supported by
reasons, on all issues dealt with, as well as the contentions
put forth, and pressed by the parties for decision of the
Appellate Court. No doubt, when the Appellate Court affirms
the judgment of a Trial Court, the reasoning need not to be
elaborate although reappreciation of the evidence and
reconsideration of the judgment of the Trial Court are
necessary concomitants. But while reversing a judgment of a
Trial Court, the Appellate Court must be more conscious of
its duty in assigning the reasons for doing so.
38. In this regard, we may usefully rely upon a judgment of
this Court in Santosh Hazari v. Purushottam Tiwari
(deceased) by LRs - (2001) 3 SCC 179, wherein it has been
observed that while writing a judgment of reversal, an
Appellate Court must remain conscious of two principles.
Firstly, the findings of facts based on conflicting evidence
arrived at by the Trial Court must weigh with the Appellate
RSA No. 100302 of 2022
Court, more so when the findings are based on oral evidence
recorded by the same Presiding Judge who authors the
judgment. If, on an appraisal of the evidence, it is found that
the judgment of the Trial Court suffers from a material
irregularity or is based on inadmissible evidence or on
conjectures and surmises, the Appellate Court is entitled to
interfere with the finding of fact but by assigning cogent
reasons for doing so. Otherwise, the findings of the Trial
Court should not be interfered with lightly on a question of
fact. Secondly, while reversing a finding of fact, it is
necessary that the Appellate Court assigns its own reasons
for doing so. This is especially so in case there are further
appeals under Section 100 of the Code of Civil Procedure,
1908, as the first Appellate Court is the final court of facts
and the said findings are immune from challenge in a second
appeal.
39. 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 in 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 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;
RSA No. 100302 of 2022
(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."
40. To a similar effect, are the observation of this Court in
Vinod Kumar v. Gangadhar - (2015) 1 SCC 391, wherein it
has been observed that in a first appeal under Section 96 of
the Code of Civil Procedure, 1908, the scope and powers
conferred on the First Appellate Court are delineated in
Order XLI of the Code and grounds raised in the appeal,
reappreciation of evidence adduced by the parties and
application of the relevant legal principles and decided case
law have to be considered while deciding whether the
judgment of the Trial Court can be sustained or not.
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RSA No. 100302 of 2022
41. It is also necessary to observe that the right to appeal is
a creature of statute. The right to file an appeal by an
unsuccessful party assailing the judgment of the Original
Court is a valuable right and hence a duty is cast on the
Appellate Court to adjudicate a first appeal both on questions
of fact and applicable law. Hence, the reappreciation of
evidence in light of the contentions raised by the respective
parties and judicial precedent and the law applicable to the
case have to be conscientiously dealt with.
42. In the instant case, the Division Bench of the High Court
has simply reversed the judgment of the learned Trial Judge
in the absence of reappreciation of evidence and without
giving findings on questions of fact as well as on the
applicable law and by not reasoning as to why the judgment
of the learned Trial Judge was erroneous."
13. Following the dictum of the Hon'ble Apex Court
referred to above, I have given my anxious consideration to the
reasons assigned by the First Appellate Court in R.A.No.44/2016. I
am of the view that the First Appellate Court ought to have
considered each of the grounds urged by the appellant herein in
the memorandum of appeal and formulated points for
determination based on the grievance raised by the appellant in the
memorandum of appeal challenging the judgment and decree
passed by the trial Court. In that view of the matter, I find force in
the arguments advanced by Sri. Kamate, learned counsel
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RSA No. 100302 of 2022
appearing for the appellant, that the impugned judgment and
decree passed by the First Appellate Court requires to be interfered
with in this appeal. In that view of the matter, the substantial
question of law referred to above is answered in favour of the
appellant/defendant and the appeal is remitted back to the First
Appellate Court for fresh consideration in accordance with the
observation made above. In the result, I pass the following:
ORDER
i. Appeal is allowed;
ii. The Judgment and Decree dated 15.01.2021 passed in
R.A. No.44/2016 on the file of the Addl. Senor Civil Judge
and JMFC, Athani is set aside;
iii. The matter is remitted to the First Appellate Court to
reconsider the issue afresh after affording reasonable
opportunity to the parties;
iv. As the parties to the appeal are represented through their
counsel, parties are directed to appear before the First
Appellate Court on 04.08.2022 without waiting for notice
from the First Appellate Court;
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RSA No. 100302 of 2022
v. It is also made clear that, this Court has not expressed
any opinion on the merits of the case and the First
Appellate Court is permitted to hear the matter on merits
independently and pass orders;
vi. Taking into consideration that the suit is of the year 2008,
First Appellate Court is requested to dispose of the
appeal within four months from the date of receipt of this
order.
Sd/-
JUDGE
gab
