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2014- Oct.Month- S.C. – CIVIL APPEAL NO. 9681 OF 2014 (ARISING OUT OF SLP(C) NO.26124/2013) Vinod Kumar Appellant(s) VERSUS Gangadhar Respondent(s)

Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELALTE JURISDICTION

CIVIL APPEAL NO. 9681 OF 2014
(ARISING OUT OF SLP(C) NO.26124/2013)
Vinod Kumar Appellant(s)

VERSUS

Gangadhar Respondent(s)

J U D G M E N T
Abhay Manohar Sapre, J.

1) We have perused the Office Report dated 10.10.2014. It discloses that
despite last opportunity granted to the respondent, he has not filed any
counter affidavit till date. Today, when the matter was taken up for
hearing, there was no representation for the respondent. Therefore, we
proceed to decide the appeal on merits.
2) Leave granted.
3) This is a civil appeal filed by the plaintiff against the
judgment/decree dated 21.03.2013 passed by the single Judge of the High
Court of M. P., Indore Bench in First Appeal No. 173 of 1999, which in turn
arises out of the judgment and decree dated 27.02.1999 passed by the second
Additional District Judge, Mandsaur in Civil Suit No. 36A/97.
4) In order to appreciate the short issue involved in this appeal, it is
necessary to state a few relevant facts:
5) The appellant (plaintiff) filed a civil suit in the Court of second
Additional District Judge, Mandsore being Civil Suit no. 36A/97 against the
respondent (defendant) for specific performance of the contract for
purchase of house bearing no. 9, situated at Madhavganj Mandsaur (herein
after referred to as “the suit house”). According to the appellant, the
respondent was the owner of the suit house and he entered into a written
agreement dated 05.01.1992 with the appellant to sell the suit house to the
appellant for a total sum of Rs.1,48,000/-. It was alleged in the plaint
that the appellant, in terms of the agreement, offered/tendered Rs.9,989/-
to the respondent towards part payment of the sale consideration, but he
declined to accept the amount and avoided to perform his part of the
agreement. This led to the serving of notice by the appellant to the
respondent calling upon him to perform his part of the agreement and
execute the sale deed of the suit house in the appellant’s favour. Since
the respondent failed to ensure compliance of the legal notice, the
appellant filed the aforementioned civil suit against the respondent
seeking specific performance of the agreement in question. It was alleged
that the appellant was ready and willing to perform his part of the
agreement but it was respondent who failed to perform his part and hence
this suit.
6) The respondent filed the written statement denying allegations made
in the plaint. According to the respondent, there was no concluded
agreement between the parties and in any event, the appellant having failed
to perform his obligations, which were agreed upon in the alleged
agreement, he was not entitled to seek enforcement of such agreement
against the respondent in relation to the suit house.
7) Thereafter, the trial Court framed the issues. Parties then adduced
evidence in support of their pleadings. The trial Court vide its
judgment/decree dismissed the suit and declined to grant any relief to the
appellant. Feeling aggrieved with the said judgment/decree, the appellant
filed First Appeal No. 173 of 1999 under Section 96 of the Code of Civil
Procedure, 1908 in the High Court of M.P. at Indore Bench.
8) The learned Single Judge, by impugned judgment, dismissed the first
appeal filed by the appellant and in consequence confirmed the
judgment/decree passed by the trial court, which had dismissed appellant’s
civil suit. It is against this confirmation of the dismissal of the suit by
the High Court, the appellant felt aggrieved and filed this appeal.
9) Learned Counsel for the appellant while assailing the legality and
correctness of the impugned judgment contended that the High Court without
adverting to all the factual details and various grounds raised in the
first appeal, disposed of the same in a cryptic manner. According to
learned counsel, the High Court neither dealt with any issue nor
appreciated the ocular and documentary evidence adduced by the parties nor
examined the legal principles applicable to the issues arising in the case
and nor rendered its findings on any contentious issues on which the
appellant was non suited by the trial court though urged by the appellant
in support of the appeal. Learned counsel further contended that it was the
duty of the High Court being the first appellate court and exercising its
appellate powers under Section 96 read with Order 41 Rule 31 ibid to have
dealt with the submissions which were urged by the appellant after
appreciating the entire evidence on facts, independent to the findings of
the trial Court and should have come to its own conclusion keeping in view
the legal principles governing the issues and since it was not done by the
High Court, the impugned judgment is not legally sustainable. Lastly, the
learned counsel urged that in case his arguments are accepted, the remand
of the case to the High Court to decide the appeal on merits afresh is
inevitable.
10) Having heard the learned counsel for the appellant and on perusal of
the record of the case and on examining the issue arising in the appeal, we
find force in the submission of the learned counsel for the appellant.
11) The powers of the first appellate court while deciding the first
appeal under Section 96 read with Order 41 Rule 31 of the Code of Civil
Procedure, 1908 are indeed well defined by various judicial pronouncements
of this Court and are, therefore, no more res integra.
12) 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 plaintiff, 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 plaintiff’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 plaintiff 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)
13) This Court in 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 ibid.
14) We consider it apposite to refer to some of the decisions
15) 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 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 & 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.
17) 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.”

18) Again in Jagannath v. Arulappa & Anr., (2005) 12 SCC 303, while
considering the scope of Section 96 of 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 reappreciate the entire evidence and come
to a different conclusion………”

19) 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.”

20) 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.
21) Applying the aforesaid principle to the facts of the case, we find
that the High Court while deciding the first appeal failed to keep the
principle in consideration and rendered the impugned decision. Indeed, it
is clear by mere reading of para 4 of the impugned order quoted below:
“After hearing learned counsel for the parties and going through the
evidence, I do not find any justification to throw over board findings
recorded by the trial court. After due appreciation of evidence, I do not
find any merit and substance in this appeal. Same stands dismissed with
costs. Counsel fee Rs.1000/-, if certified. Ordered accordingly.”

22) In our considered opinion, the High Court did not deal with any of
the submissions urged by the appellant and/or respondent nor it took note
of the grounds taken by the appellant in grounds of appeal nor made any
attempt to appreciate the evidence adduced by the parties in the light of
the settled legal principles and decided case law applicable to the issues
arising in the case with a view to find out as to whether judgment of the
trial court can be sustained or not and if so, how, and if not, why?
23) Being the first appellate court, it was the duty of the High Court to
have decided the first appeal keeping in view the scope and powers
conferred on it under Section 96 read with Order 41 Rule 31 ibid mentioned
above. It was unfortunately not done, thereby, resulting in causing
prejudice to the appellant whose valuable right to prosecute in the first
appeal on facts and law was adversely affected which, in turn, deprived him
of a hearing in the appeal in accordance with law.
24) It is for this reason, we are unable to uphold the impugned judgment
of the High Court.
25) The appeal thus succeeds and is accordingly allowed. The impugned
judgment is set aside.
26) The case is remanded to the High Court for deciding the first appeal
afresh, keeping in view the principle of law laid down by this Court quoted
supra.
27) However, we make it clear that we have not applied our mind to the
merits of the issues involved in the case and hence, the High Court would
decide the appeal strictly in accordance with law on merits uninfluenced by
any of our observations, which we have refrained from making on merits.
Needless to observe, the High Court will do so after affording an
opportunity of hearing to both the parties and especially to the respondent
because no one appeared today for him and hence, the High Court would send
the respondent a fresh notice of the final hearing of the appeal.
28) Since the case is quite old, we request the High Court to expedite
its hearing.

………………………………J.
[FAKKIR MOHAMED IBRAHIM KALIFULLA]
…………………………….J.
[ABHAY MANOHAR SAPRE]

New Delhi;
October 13, 2014.

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