Supreme Court

Malluru Mallappa (D) thr. L.Rs. Vs. Kuruvathappa and Ors.

MANU/SC/0166/2020

12.02.2020

Civil

An appeal is a continuation of proceedings of original Court and Court of first appeal must record its findings only after dealing with all issues of law as well as fact

Present is the Plaintiff's appeal challenging the judgment passed by the High Court, whereby the High Court has confirmed the judgment and decree passed by the trial Court. The Plaintiff filed the above suit against the Respondents/Defendants for specific performance of the agreement to sell dated 30th March, 2000. The agreement provided that, the sale was to be executed within three years from the date of the agreement, subject to the Defendants fulfilling certain obligations.

The trial Court held that, the suit was barred by time. It was also held that the Plaintiff was not ready and willing to perform his part of the contract. The suit was accordingly dismissed. The High Court has confirmed the said decree of the trial court.

Section 96 of the Code of Civil Procedure, 1908 (CPC) provides for filing of an appeal from the decree passed by any court exercising original jurisdiction to the court authorized to hear the appeals from the decisions of such courts. In the instant case, the appeal from the decree passed by the trial court lies to the High Court. In Hari Shankar v. Rao Girdhari Lal Chowdhury, it was held that a right of appeal carries with it a right of re-hearing on law as well as on fact, unless the statute conferring a right of appeal limits the re-hearing in some way as has been done in second appeal arising under the CPC.

It is a settled position of law that, an appeal is a continuation of the proceedings of the original court. Ordinarily, the appellate jurisdiction involves a re-hearing on law as well as on fact and is invoked by an aggrieved person. The first appeal is a valuable right of the Appellant and therein all questions of fact and law decided by the trial court are open for re-consideration. Therefore, the first appellate court is required to address itself to all the issues and decide the case by giving reasons.

The Court of first appeal must record its findings only after dealing with all issues of law as well as fact and with the evidence, oral as well as documentary, led by the parties. The judgment of the first appellate court must display conscious application of mind and record findings supported by reasons on all issues and contentions

The judgment of the first appellate court has to set out points for determination, record the decision thereon and give its own reasons. Even when the first appellate court affirms the judgment of the trial court, it is required to comply with the requirement of Order XLI Rule 31 of CPC and non-observance of this requirement leads to infirmity in the judgment of the first appellate court. When the appellate court agrees with the views of the trial court on evidence, it need not restate effect of evidence or reiterate reasons given by trial court. Expression of a general agreement with the reasons given by the trial court would ordinarily suffice.

The issue relating to readiness and willingness of the Plaintiff to perform his part of the contract and issue relating to limitation were held against the Plaintiff and the suit was accordingly dismissed. The appeal before the High Court involved both disputed questions of law and fact. The High Court without examination of any of these aspects has dismissed the appeal by a cryptic order. The court below has neither re-appreciated the evidence of the parties, nor it has passed a reasoned order. The High Court has failed to follow the provisions of Order XLI Rule 31 of the CPC while deciding the appeal. The judgment and decree of the High Court is set aside and the matter is remanded to the High Court for fresh disposal in accordance with law. Appeal allowed in part.

Relevant

Hari Shankar v. Rao Girdhari Lal Chowdhury MANU/SC/0346/1961

Tags : Contract Specific performance reasoned order

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