26 October 2020


Supreme Court

C. Venkata Swamy Vs. H.N. Shivanna (D) by L.R. and Ors.




It is the duty of First Appellate Court to appreciate entire evidence and arrive at its own independent conclusion

The Appellant filed a suit in the Court of City Civil Judge, against the Respondents for a declaration and permanent injunction in relation to the land ("suit land") whereas original Respondent No. 1 also filed a cross suit against the Appellant in relation to the suit land. The Trial Court, by common judgment/decree dismissed the suit filed by the Appellant, and decreed the suit filed by Respondent No. 1. The Plaintiff felt aggrieved and filed two first appeals under Section 96 of the Code of Civil Procedure, 1908 (CPC) before the High Court. By impugned judgment/decree, the Single Judge dismissed both the first appeals and affirmed the judgment/decree of the Trial Court, giving rise to filing of the present appeals by special leave.

The Single Judge dismissed the appeals without undertaking any appreciation of evidence, dealing with various issues arising in the case and discussing the arguments raised by the parties in support of their case. The disposal of the two first appeals could not be said to be in conformity with the requirements of Section 96 read with Order 41 Rule 31 of the CPC. It is a settled principle of law that, a right to file first appeal against the decree under Section 96 of the CPC 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 arrive at its own independent conclusion, for reasons assigned, either of affirmance or difference.

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. In Santosh Hazari v. Purushottam Tiwari (Deceased) by L.Rs., this Court held that, 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. The above view was followed by a three-Judge Bench decision of this Court in Madhukar and Ors. v. Sangram and Ors., 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.

In H.K.N. Swami v. Irshad Basith, this Court stated that, 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.

In Jagannath v. Arulappa and Anr., while considering the scope of Section 96 of the CPC, this Court observed that, a Court of first appeal can reappreciate the entire evidence and come to a different conclusion. Impugned judgment is set aside and case remanded to the High Court for deciding the appeals afresh on merits in accordance with law. The appeals are accordingly allowed.


Santosh Hazari v. Purushottam Tiwari (Deceased) by L.Rs.MANU/SC/0091/2001
: (2001) 3 SCC 179, Madhukar and Ors. v. Sangram and Ors., MANU/SC/0302/2001
: (2001) 4 SCC 756, H.K.N. Swami v. Irshad Basith, (2005) 10 SCC 243, Jagannath v. Arulappa and Anr.

Tags : Appreciation Evidence Appellate Court Duty

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