Telangana High Court
Dr.A.K.Chary Research And Surgical ... vs Syed Sadak Ali Khan, on 3 January, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.428 of 2023
JUDGMENT:
This Second Appeal is filed challenging the judgment and
decree dated 23.06.2023 passed in A.S.No.21 of 2019 on the file of the
XXVII Additional Chief Judge, City Civil Courts, Secunderabad,
confirming the judgment and decree dated 26.12.2018 passed in
O.S.No.690 of 2016 on the file of the I Junior Civil Judge, City Civil
Courts, Secunderabad. Thus, the present Second Appeal is filed
against the concurrent findings of trial Court as well as first Appellate
Court.
2. For the sake of convenience, the parties are referred to as they
are arrayed before the trial Court.
3. Brief facts leading to filing of the present second appeal are that
the respondents/plaintiffs filed a suit in O.S No.690 of 2016 for
eviction of the defendants from the suit schedule property and also for
damages for wrongful use and occupation of the scheduled premises.
It was contended that the plaintiffs earlier filed a suit in O.S.No.49 of
2002 on the file of the I Additional Chief Judge, City Civil Court, 2 LNA, J S.A.No.428 of 2023
Secunderabad, against M/s. Deepthi Builders and others for eviction
of the leased premises, recovery of arrears of rents and damages. The
defendant No.1 herein, who is sub-tenant of M/s. Deepthi Builders,
was impleaded as defendant No.8 in O.S.No.49 of 2002. However, the
said suit was dismissed against the defendant No.1 herein on the
ground that no quit notice was issued under Section 106 of the
Transfer of Property Act, 1882 (for short, 'the Act, 1882').
4. Challenging the judgment and decree passed in O.S.No.49 of
2002, the plaintiffs approached this Court and filed an appeal vide
C.C.C.A.No.74 of 2015. In the said C.C.C.A., the plaintiffs filed
C.C.C.A.M.P.No.236 of 2015 to direct the defendant No.8 (defendant
No.1 herein) to deposit the admitted monthly rent of Rs.15,403/- from
08.10.2014 onwards till the date of disposal of the appeal. This Court
vide order dated 07.09.2015 allowed the said C.C.C.A.M.P. directing
the defendant No.1 herein to deposit the arrears of admitted monthly
rent from 08.10.2014 to 07.09.2015 within 12 weeks from the date of the
said order and further directed it to continue to deposit the rent at the
said rate pending the appeal. However, this Court vide judgment
dated 30.11.2016 dismissed the C.C.C.A as withdrawn granting liberty 3 LNA, J S.A.No.428 of 2023
to the plaintiffs to file a fresh suit for eviction after serving notice
under Section 106 of the Act, 1882.
5. It was further contended that prior to the withdrawal of the said
C.C.C.A., the plaintiffs got issued a quit notice dated 09.11.2016 to the
defendant No.1 herein terminating the tenancy, which was duly
served on it, but of no avail. Hence, the plaintiffs filed the suit vide
O.S.No.690 of 2016 seeking the relief of eviction of the defendants from
the suit schedule property and also for damages.
6. The defendants denied the claim of the plaintiffs mainly on the
ground that without closing/withdrawing the appeal and during the
pendency of the appeal, the quit notice dated 09.11.2016 has been
issued and the same is premature and invalid.
7. On behalf of the plaintiffs, P.W.1 was examined and Exs.A1 to
A.9 were marked. On behalf of the defendants, though the defendant
No.1 was examined as DW.1, no documents were marked.
8. The trial Court, after considering the entire material available on
record, decreed the suit with costs vide judgment and decree dated
26.12.2018. Aggrieved by the same, the defendants filed A.S.No.21 of
2019. The first appellate Court on re-appreciation of the entire 4 LNA, J S.A.No.428 of 2023
evidence and considering the material available on record, dismissed
the appeal with costs, vide judgment and decree dated 23.06.2023,
confirming the judgment and decree passed by the trial Court. Hence,
the present Second Appeal is filed.
9. Heard Smt. B.Neeraja Reddy, learned counsel for the appellants
and Sri S.Malla Rao, learned counsel for the respondents. Perused the
record.
10. The learned counsel for the appellants vehemently argued that
the trial Court decreed the suit without proper appreciation of the
evidence and the first Appellate Court also committed an error in
confirming the judgment and decree passed by the trial Court. The
learned counsel for the appellants/defendants contended that the first
Appellate Court failed to see that the second suit for eviction is not
maintainable during the pendency of the C.C.C.A, as the suit was filed
on 25.12.2016 basing on the quit notice dated 09.11.2016, while the
C.C.CA. was dismissed as withdrawn granting liberty to the plaintiffs
to file separate suit by issuing termination notice, on 30.11.2016.
11. The learned counsel for the appellants further contended that
quit notice under Section 106 of the Act, 1882, was issued during the 5 LNA, J S.A.No.428 of 2023
pendency of the C.C.C.A., and therefore, the quit notice is hit by
principles of res judicata. She further contended that the first Appellate
Court erred in framing only one issue i.e., Whether the impugned
judgment and decree dated 26.12.2018 in O.S.No.690 of 2016 passed by the I
Junior Civil Judge, City Civil Court, Secunderabad, suffers from any
illegality and warrants any interference (or) not ?
12. In support of the said contention the learned counsel for
appellant relied on the following decisions:
i) Santosh Hazari vs. Purushottam Tiwari 1;
ii) Shasidhar and others vs. Aswini Uma Mathad and another 2; and
iii) Uttar Pradesh State Road Transport Corporation vs. Mamta and others 3
13. On the other hand, the learned counsel for the respondents/
plaintiffs vehemently contended that the trial Court, after considering
the oral and documentary evidence, has rightly decreed the suit and
the same was confirmed by the first Appellate Court by giving cogent
reasons. He further contended that there is inordinate delay in filing
the present Second Appeal and the appellants failed to explain the
1 (2001) 3 SCC 179 2 (2015) 11 SCC 269 [2015 (2) ALD 182 (SC] 3 (2016) 4 SCC 172 [AIR 2016 SC 948 6 LNA, J S.A.No.428 of 2023
same. He further contended that mere omission to frame point/points
for determination does not vitiate the judgment of the first appellate
Court provided the first Appellate Court records its reasons based on
the evidence adduced by both the parties.
14. In support of the said contentions, learned counsel for the
respondents relied on the following judgments:
i) Laliteshwar Prasad v. S.P. Srivastava (D) through L.Rs 4;
ii) H.Siddiqui (Dead) by L.Rs. v. A.Ramalingam 5; and
iii) Jalendra Padhiary v. Pragati Chhotray 6.
Consideration:
15. In Santosh Hazari (supra), the Hon'ble Apex Court held as
under:
"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. The task of an appellate court affirming the findings of the trial court is an easier one. The appellate court agreeing with the view of the trial court need not restate the effect of the evidence or reiterate the reasons given by the trial court; expression of general agreement with reasons given by the court, decision of
4 (2017) 2 SCC 415 5 (2011) 4 SCC 240 6 (2018) 16 SCC 773 7 LNA, J S.A.No.428 of 2023
which is under appeal, would ordinarily suffice (See Girijanandini Devi v. Bijendra Narain Choudhary [AIR 1967 SC 1124] ). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate court for shirking the duty cast on it. While writing a judgment of reversal the appellate court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by 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. (See Madhusudan Das v.
Narayanibai [(1983) 1 SCC 35 : AIR 1983 SC 114] ) The rule is -- and it is nothing more than a rule of practice -- that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lie, the appellate court should not interfere with the finding of the trial Judge on a question of fact. (See Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh [1950 SCC 714 : AIR 1951 SC 120] ) Secondly, 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 v. Sangram [(2001) 4 SCC 756],
wherein, it was reiterated that sitting as a Court of first appeal, it is the 8 LNA, J S.A.No.428 of 2023
duty of the High Court to deal with all the issues and the evidence led
by the parties before recording its findings.
17. In Shasidhar (supra), the Hon'ble Apex Court at paragraph-11
had referred to judgment passed in Kurian Chacko v. Varkey
Ouseph 7, wherein it was held that duty is casts upon the first
Appellate Court to decide the first appeal in accordance with Section
96 of CPC and further referred to the observation made in the said
judgment, which is reproduced as under:
"11. ......
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."
17.1. At paragraph-16, the Hon'ble Apex Court had referred to judgment of
Hon'ble Apex Court in B.V.Nagesh v. H.V.Sreenivasa Murthy 8, wherein it
was observed as under:
"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
7 (2001) 3 SCC 179 8 (2010) 13 SCC 530: (2010)4 SCC (Civ) 809 9 LNA, J S.A.No.428 of 2023
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."
17.2. Ultimately, at paragraph 21, the Hon'le Apex Court held as under:
"21. Being the first appellate court, it was, therefore, the duty of the High Court to decide the first appeal keeping in view the scope and powers conferred on it under Section 96 read with Order 41 Rule 31 of the Code mentioned above. It was unfortunately not done, thereby, causing prejudice to the appellants whose valuable right to prosecute the first appeal on facts and law was adversely affected which, in turn, deprived them of a hearing in the appeal in accordance with law."
18. The principle contention raised by the appellants herein is that
the first Appellate Court did not consider the material on record in
proper perspective and had not framed points for determination and
further, the decisions cited by the appellants have not been referred to.
The judgments referred to by the appellants emphasizes the duty cast
upon the first Appellate Court to formulate the points for
determination, undertake full, fair and independent consideration of
evidence and record reasons for its decision. The first Appellate Court
being final Court on facts, shall undertake full, fair and independent
consideration of the evidence on record.
10
LNA, J S.A.No.428 of 2023
19. In the present case, the first Appellate Court had framed only
one point for consideration i.e., "Whether the impugned judgment and
decree dated 26.12.2018 in O.S.No.690 of 2016 passed by the I Junior Civil
Judge, City Civil Court, Secunderabad, suffers from any illegality and
warrants any interference (or) not ?"
20. Perusal of the judgment and decree dated 23.06.2023 passed by
the first Appellate Court would show that though the issues framed by
trial Court as well as the grounds raised by the appellants in the
appeal were reproduced in the impugned judgment, the same were
not discussed, analyzed in detail in the judgment.
21. In Laliteshwar Prasad Singh (supra), the Hon'ble Apex Court
held as under:
"11. As per Order XLI Rule 31 CPC, the judgment of the first appellate court must explicitly set out the points for determination, record its reasons thereon and to give its reasonings based on evidence. Order XLI Rule 31 CPC reads as under:
Order XLI Rule 31: Contents, date and signature of judgment. - The judgment of the Appellate Court shall be in writing and 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;
11
LNA, J S.A.No.428 of 2023
and shall at the time that it is propounded be signed and dated by the Judge or by the Judges concurring therein.
It is well settled that the first appellate court shall state the points for determination, the decision thereon and the reasons for decision. However, it is equally well settled that mere omission to frame point/points for determination does not vitiate the judgment of the first appellate court provided that the first appellate court records its reasons based on evidence adduced by both the parties."
22. In H. Siddiqui (supra), the Hon'ble Apex Court held as under:
"18.The said provisions provide guidelines for the appellate court as to how the court has to proceed and decide the case. The provisions should be read in such a way as to require that the various particulars mentioned therein should be taken into consideration. Thus, it must be evident from the judgment of the appellate court that the court has properly appreciated the facts/evidence, applied its mind and decided the case considering the material on record. It would amount to substantial compliance with the said provisions if the appellate court's judgment is based on the independent assessment of the relevant evidence on all important aspects of the matter and the findings of the appellate court are well founded and quite convincing. It is mandatory for the appellate court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final court of fact, the first appellate court must not record mere general expression of concurrence with the trial court judgment rather it must give reasons for its decision on each point independently to that of the trial court. Thus, the entire evidence must be considered and discussed in detail. Such exercise should be done after formulating the points for consideration in terms of the said provisions and the court must proceed in adherence to the requirements of the said statutory provisions."
23. In Jalendra Padhiary ( supra), the Apex Court held as under: 12
LNA, J S.A.No.428 of 2023
"Time and again, this Court has emphasized on the Courts the need to pass reasoned order in every case, which must contain the narration of the bare facts of the case of the parties to the lis, the issues arising in the case, the submissions urged by the parties, the legal principles applicable to the issues involved and the reasons in support of the findings recorded based on appreciation of evidence on all the material issues arising in the case."
24. The principle grounds, on which the respondents tried to defend
the judgment and decree passed by the first Appellate Court, are that
the first Appellate Court had referred to evidence in detail and the
grounds raised by the appellants and had rightly dismissed the appeal
on proper appreciation of the fact and law. Therefore, no substantial
question of law has been framed and raised warranting this Court to
interfere with the judgment and decree passed by the first Appellate
Court.
25. It is further contended that non determination of points for
consideration ipso facto does not render the order of the first Appellate
Court bad and it is settled principle of law that non-framing of points
for determination does not vitiate the well reasoned judgment of the
first Appellate Court. It is further contended that the first Appellate
Court had referred to in detail, the evidence on record and mere non- 13
LNA, J S.A.No.428 of 2023
framing points for determination does not vitiate the judgment and
decree of the first Appellate Court.
26. A perusal of the record discloses that both the Courts below
concurrently held that the suit i.e., O.S.No.690 of 2016 was filed after
withdrawal of C.C.C.A.No.74 of 2015 only, and therefore, the suit was
not premature; and that mere pendency of the appeal does not bar the
plaintiffs from issuing the quit notice under Section 106 of the Act,
1882.
27. However, first Appellate Court did not frame/state points for
determination, which is mandatory under Order XLI Rule 31 of CPC.
Further, the first Appellate Court being the final Court on facts, did
not undertake the exercise of detailed analysis of the evidence as well
as findings of the trial Court, contrary to Order XLI Rule 31 of CPC.
28. It is evident from the impugned judgment and decree that the
first Appellate Court failed to discuss all the grounds raised by the
appellants and record its findings. Further, the first Appellate Court
had also not referred to the judgments cited by the appellants and its
applicability of the said judgments to the facts of present case. 14
LNA, J S.A.No.428 of 2023
29. In the light of the law laid down by the Hon'ble Apex Court,
referred to above, in considered opinion of this Court the first
Appellate Court failed to exercise its power under Order XLI Rule 31 of
CPC in proper perspective and had failed to formulate points for
consideration and undertake full, fair and independent consideration
of evidence. Therefore, the impugned judgment and decree dated
23.06.2023 passed by the first Appellate Court is liable to be set aside
and accordingly, set aside.
30. In the result, the Second Appeal is disposed of and the matter is
remanded back to the first Appellate Court for fresh adjudication with
a direction to frame the points for consideration and pass a reasoned
order, duly taking into consideration the evidence, material placed on
record in accordance with law. There shall be no order as to costs.
Pending miscellaneous applications, if any, shall stand closed.
_________________________________ LAXMI NARAYANA ALISHETTY, J
Date: 03.01.2024 Va/kkm
