(Vikram Nath and K.V. Viswanathan, JJ.)
Mahender Pal Chabra and Another __________________ Appellant(s);
v.
Subhash Aggrawal ________________________________ Respondent.
Civil Appeal No. 1426 of 2024 (Arising from SLP(C) No(s). 12465/2021), decided on January 30, 2024
The Order of the court was delivered by
Order
1. Leave granted.
2. This appeal deserves to be allowed on a short point that the Division Bench of the High Court, while deciding the First Appeal, has failed to take into consideration the parameters applicable for deciding a First Appeal under Section 96 of the Code of Civil Procedure, 19081.
3. Appellant herein is the defendant in a suit for specific performance instituted by the respondent. Trial Court decreed the suit by an elaborate judgment dealing with the evidence on record. Aggrieved the appellant herein preferred an appeal under section 96 CPC. The First Appeal was dismissed by the High Court vide impugned judgment giving rise to the present appeal.
4. Briefly stated there was an agreement to sell to purchase a piece of land and building at Ashok Vihar for a total sale consideration of Rs. 6 Crores 11 lakhs out of which initially an amount of Rs. 60 lakhs was paid and thereafter it was alleged that Rs. 30 lakhs were paid in cash later on. Thus, total amount of Rs. 90 lakhs has been paid as alleged by the plaintiff and the balance consideration of Rs. 5 Crores 21 lakhs was to be paid at the time of execution of sale deed and its registration. Both the parties had allowed oral as well as documentary evidence in support of their cases. The Trial Court (learned Single Judge) had discussed the evidence and had come to the conclusion that the suit was liable to be decreed, even though alternate prayer for refund of advance amount in double to be returned as was also claimed by the relief.
5. The defendant-appellant preferred the first appeal before the High Court under section 96 CPC which has since been dismissed by the impugned order.
6. From a bare perusal of the judgment, we find that, after noting the respective submissions of the counsel for the parties, thereafter extracting some portion of the judgment of the Trial Court, the Division Bench, in a single paragraph relying upon a particular clause of the agreement to sell, has dismissed the appeal in limine on the first date of its listing without even issuing notice. This is precisely as to how the First Appeal should not be dealt with.
7. We are mindful of the fact that a First Appeal may be dismissed without notice to the respondent and without calling for records under Order XLI Rule 11 CPC. However, it is well settled that the scope of dismissal under the above provision is very narrow and is akin to the powers of Court to reject a plaint under Order VII Rule 11 CPC. Order XLI Rule 11 CPC is reproduced hereunder:
“Order XLI Rule 11: Power to dismiss appeal without sending notice to Lower Court.-
[(1) The Appellate Court after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day may dismiss the appeal].
(2) If on the day fixed or arty other day to which the hearing may be adjourned the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed.
(3) The dismissal of an appeal under this rule shall be notified to the Court from whose decree the appeal is preferred.
(4) Where an Appellate Court, not being the High Court, dismisses an appeal under sub-rule (1), it shall deliver a judgment, recording in brief its grounds for doing so, and a decree shall be drawn up in accordance with the judgment.]1”
8. First Appellate Court is the last Court which can appreciate the evidence on record and record findings of fact. As such a First Appeal normally should not be thrown out at the stage of Order XLI Rule 11 CPC just as a plaint normally is not rejected under Order VII Rule 11 CPC except for and on the grounds stated in the said provision. The appellant having paid full court fees would be entitled to a reasonable discussion of the points raised in first appeal based on appreciation of evidence led before the Trial Court. The appellate Court at least ought to have discussed the points raised by the appellant.
9. The above view finds support from series of judgments of this Court, however reference to three judgments, one by a three Judge Bench and the other two recent ones, would suffice as it would be unnecessary to burden this judgment with dozens of case laws on the same point. In the case of Uttar Pradesh Avas Evam Vikas Parishad v. Sheon arain Kushwaha2, dealing with Order XLI Rule 11(1), Rule 11(4) and Rule 31 CPC, Justice Raveendran speaking for the Bench explained the requirement and expectation from the High Court as a first appellate in deciding a first appeal under Order XLI Rule 11 CPC. Paragraphs 6 to 12 of the report are being reproduced for a clearer understanding of the issue:
“6. Order 41 of the Code regulates appeals from original decrees. Rule 11 of Order 41 relates to power to dismiss appeals without sending notice to lower court and sub-rules (1) and (4) thereof, relevant for our purpose, are extracted below:
“11. Power to dismiss appeal without sending notice to lower court-
(1) The appellate court after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day may dismiss the appeal.
xxx xxx
(4) Where an appellate court, not being the High Court, dismisses an appeal under sub-rule (1), it shall deliver a judgment, recording in brief its grounds for doing so, and a decree shall be drawn up in accordance with the judgment.”
7. It is evident from sub-rule (1) that an appellate court can dismiss an appeal after a preliminary hearing without calling for the records of the trial court and without issuing notice to the respondent, if it is satisfied that the appeal has no merit. Sub-rule (1) does not however state that such dismissal can be without assigning any reasons.
8. Sub-rule (4) provides that where the appellate court, not being the High Court, dismisses an appeal under sub-rule (1), it shall deliver a judgment recording in brief, its grounds for doing so. Sub-rule (4) by implication therefore provides that if the appellate court is the High Court, and it chooses to dismiss a first appeal at the stage of preliminary hearing, without issuing notice to the respondent and without calling for records, it need not deliver a formal brief judgment as is required by other appellate fora. A “judgment”, even a brief one, which is required to be rendered by appellate courts other than High Courts, should necessarily refer to the pleadings, nature of relief, the points for consideration and the decision thereon. But sub-rule (4) does not say that if the appellate court which dismisses the appeal is the High Court, no reasons be assigned for dismissing the appeal.
9. Sub-rule (4) of Rule 11 does not enable the High Court to dismiss first appeals by one-line orders to the effect that “appeal is dismissed” or by non-speaking orders. The order of the High Court dismissing the first appeal should be sufficiently reasoned to disclose the application of mind to the grounds of appeal and make out that the High Court was resorting to dismissal in limine as it found the appeal either to be vexatious or wholly without merit. Order 41 Rule 11 of the Code, while relieving the High Court from the obligation to write a “judgment”, does not dispense with the obligation to assign reasons in briefs, when summarily dismissing the appeal.
10. Unless the order is reasoned, there will be no way of knowing whether the appellate court has examined the appeal before deciding that it did not deserve admission. As a limited right to appeal to the Supreme Court is available against the appellate judgments of the High Court, unless there are reasons in the order, it will not be possible for the Supreme Court to examine whether the High Court has rightly rejected the appeal. The such appeal, paying necessary court fee, can legitimately expect reappreciation of the evidence and redetermination of the questions raised, unless the statute providing for the appeal provides otherwise.
11. This Court has repeatedly pointed out that any dismissal of a first appeal even at the preliminary hearing stage, should be supported by brief reasons. In Kiranmal Zumerlal Borana Marwadi v. Dnyanoba Bajirao Khot3, this Court observed:
“2… As numerous points both of law and facts appear to have been raised in the appeal, which again were sought to be canvassed before us in fairness to the parties and to us some reasons ought to have appeared in the judgment indicating what appealed to the High Court to be in entire agreement with the learned trial Judge. Let it be remembered that it was the first appeal against the decision of the trial court and therein the appellant can and has raised serious questions of law and disputed decision on facts. We, therefore, think that this is pre-eminently a fit case which ought to have been admitted and disposed of on merits.”
12. In Jayanmti De v. Abani Kanta Barat4, this Court observed thus:
“2. We are not satisfied that the High Court has considered the appeal on merits. Even if the dismissal is under Order 41 Rule 11 and the High Court is not required under sub-rule (4) to record in brief its grounds for doing so, it is not a carte blanche to enable the appellate court to avoid recording any reason whatsoever. We think that the appeal required consideration on merits.””
10. Further, in the case of Santosh Hazari v. Purushottam Tiwari (Deceased) By LRS.5, a three Judges Bench, Justice RC Lahoti speaking for the Bench in paragraph 15 of the report commented on a cryptic judgement by the First Appellate Court and elaborated as to how a judgment by a First Appellate Court should be drafted. Paragraph 15 of the report is reproduced hereunder:
“15. A perusal of the judgment of the trial Court shows that it has extensively dealt with the oral and documentary evidence adduced by the parties for deciding the issues on which the parties went to trial. It also found that in support of his plea of adverse possession on the disputed land, the defendant did not produce any documentary evidence while the oral evidence adduced by the defendant was conflicting in nature and hence unworthy of reliance. The first appellate Court has, in a very cryptic manner, reversed the finding on question of possession and dispossession as alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. 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 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. Smt. Narayani Bai, 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 Judges notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, 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, 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. We need only remind the first appellate Courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate Court continues, as before, to be a final Court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate Court is also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate Court even on questions of law unless such question of law be a substantial one.
(Emphasis supplied)”
11. The other judgment in the case of Somakka (Dead) by Legal Representatives v. K.P. Basavaraj (Dead) By Legal Representatives6, referring to Order XLI Rule 31 CPC commented upon unsustainability of a cryptic and cursory approach of the High Court as the First Appellate Court. Relevant paragraphs 30, 31, 32 and 33 are reproduced hereunder:
“30. It has been a matter of debate in a catena of decisions as to what would be the scope, power and duty of the First Appellate Court in deciding an appeal under Section 96 CPC read with Order XLI Rule 31 CPC. We briefly deal with the law on the point.
31. The Learned Judge V.R. Krishna Iyer, J., [as he then was a Judge of the Kerala High Court] in 1969, while deciding the case between Kurian Chacko v. Varkey Ouseph, dealing with a similar judgment of the First Appellate Court which had been disposed of by a brief order, observed as follows:
“…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.”
32. Further following the above, there have been a series of judgments by this Court:
32.1 In Santosh Hazari v. Purushottam Tiwari4 (relevant portion of para 15) is reproduced below:
“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 if 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.”
32.2 In H.K.N. Swami v. Irshad Basith, this Court again reiterated the same principle in paragraph 3 of the judgment:
“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 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.”
32.3 In 2015, this Court again in Vinod Kumar v. Gangadhar considering the previous judgment recorded its view in paras 18 and 19 which are reproduced hereunder:
“18. In our considered opinion, the High Court did not deal with any of the submissions urged by the appellant and/or the 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 the judgment of the Trial Court can be sustained or not and if so, how, and if not, why.
19. 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 CPC 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. It is for this reason, we unable to uphold the impugned judgement of the High Court.”
32.4 Very recently, this Court in 2022 (to which one of us, Brother Abdul Nazeer, J. was a member) in Manjual v. Shyamsundar, reiterated the same view in para 8 thereof, which is reproduced hereunder:
“8. Section 96 of the Code of Civil Procedure, 1908 (for short, ‘CPC’) provides for filing of an appeal from the decree passed by a court of original jurisdiction. Order 41 Rule 31 CPC provides the guidelines to the appellate court for deciding the appeal. This rule mandates that the judgment of the appellate court shall state
(a) 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.
Thus, the appellate court has the jurisdiction to reverse or affirm the findings of the Trial Court. It is settled law that an appeal is a continuation of the original proceedings. The appellate court’s jurisdiction involves a rehearing of appeal on questions of law as well as fact. The first appeal is a valuable right, and, at that stage, all questions of fact and law decided by the Trial Court are open for reconsideration. The judgment of the appellate court must, therefore, reflect conscious application of mind and must record the court’s findings, supported by reasons for its decision in respect of all the issues, along with the contentions put forth and pressed by the parties. Needless to say, the first appellate court is required to comply with the requirements of Order 41 Rule 31 CPC and non-observance of these requirements lead to infirmity in the judgment.”
33. From the above settled legal principles on the duty, scope and powers of the First Appellate Court, we are of the firm view and fully convinced that the High Court committed a serious error in neither forming the points for determination nor considering the evidence on record, in particular which had been relied upon by the Trial Court. The impugned judgment of the High Court is thus unsustainable in law and liable to be set aside.
34. The next question which arises is that where the judgment of the Appellate Court is being set aside on the ground of nonconsideration of the evidence on record, the matter would normally be required to be remanded to the First Appellate Court, whether in the facts and circumstances this case requires a remand. In the facts and circumstances of the present case, we find that the suit was instituted in the year 1991, more than three decades ago; the evidence discussed by the Trial Court is neither disputed nor demolished by the learned Counsel for the respondent. As such, we do not find any good reason to remand the matter to the High Court.
35. We are of the view that in order to put a quietus to the litigation and relieve the parties from any further harassment, we set aside the judgment of the High Court and confirm the judgment and decree of the Trial Court to the extent it relates to item no. 3 of Schedule ‘A’ property described in the plaint, i.e. to say that the appellant and the respondent would be entitled to ½ share each in the said property. The Trial Court shall accordingly proceed to draw out the proceedings for final decree of partition.”
12. We, accordingly, allow the appeal, set aside the impugned order passed by the Division Bench of the High Court and restore the First Appeal to its original number to be decided afresh in accordance with law as per the provisions of the CPC and the law on the point in dealing with the First Appeal.
13. As the dispute is with respect to a decree for specific performance and both the parties are senior citizens, we request the High Court to decide the appeal expeditiously, preferably within a period of six months from the date of copy of this order is produced before it by either of the parties.
14. Interim order granted by this Court vide order dated 27.08.2021 to continue till the disposal of the First Appeal.
15. Pending applications also stand disposed of.
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1 In short, “CPC”
2 (2011) 6 SCC 456
3 (1983) 4 SCC 223
4 (2011) 6 SCC 455
5 (2001) 3 SCC 179
6 (2022) 8 SCC 261
