Golakh Chandra Das vs Braja Kamini Das and others

Dr. A.K.Rath, J

1.This is a defendants’ appeal against confirming judgment.

Since the appeal is to be disposed of on a short point, the facts need not be recounted in detail. Suffice it to say that the plaintiffs-respondents

instituted a suit for specific performance of agreement to sell. Defendant entered contest and filed a written statement denying the assertions made in

the plaint. The suit was decreed. Unsuccessful defendant filed Title Appeal No.27/26 of 1990, which was eventually dismissed.

The appeal was admitted on the following substantial questions of law;

“1. Whether in the absence of any pleading and proof that the plaintiffs have performed their part of the contract and were always ready and

willing to perform the same, a decree for specific performance can at all be passed, and 2. Whether in the facts and circumstances of the present

case the impugned decree directing specific performance of the contract is a proper exercise of jurisdiction u/s. 20 of the Specific Relief Act and

whether court can exercise its power u/s 1 of the said Act.

Heard Mr. R.K. Mohanty, learned Senior Advocate along with Mr. Dipankar Bhardwaj, learned counsel for the appellant. None appears for the

respondents.

Mr. Mohanty, learned Senior Advocate for the appellant submits that the judgment of the appellate court consists of ten pages. Learned appellate

court stated the facts and contentions of the parties in ten pages. It abruptly came to the conclusion that the learned trial court has not committed any

error in decreeing the suit. He submits that the first appeal is a valuable right of the parties. A duty is cast upon the first appellate court to scan the

evidence and pleadings and answer all issues.

This Court finds ample force in the submission of Mr. Mohanty. After survey of the earlier decisions, the apex Court in the case of B.V.Nagesh

and another v. H.V. Sreenivasa Murthy, 2010 (13) SCC 530 held:

“3. How 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.

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 therein is 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 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 vs. Purushottam Tiwari, (2001) 3 SCC 179 = JT (2001) 2 SC 407 and Madhukar and others vs. Sangram

and others, (2001) 4 SCC 756)

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.â€​

The judgment of the appellate court reveals that the appellate court stated the facts of the case and contentions of the parties in ten pages and

abruptly came to the conclusion that the learned trial court has not committed any error in decreeing the suit. No reason has been assigned. The

judgment is a laconic one.

In MMRDA Officers Association Kedarnath Rao Ghorpade v. Mumbai Metropolitan Regional Development Authority and another, (2005) 2 SCC

235, the apex Court in paragraph-5 of the report held as follows:

“Even in respect of administrative orders Lord Denning, M. P. in Breen Vrs. Amalgamated Engg. Union reported in (1971) 1 All ER 1148

observed : (All ER p. 1154h). ""The giving of reasons is one of the fundamentals of good administration."" In Alexander Machinery (Dudley) Ltd. v.

Crabtree reported in 1974 ICR 120 (NIRC) it was observed:

“Failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the controversy in question

and the decision or conclusion arrived at.†Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision

reveals the ""inscrutable face of the sphinx,"" it can, by its silence, render it virtually impossible for the Courts to perform their appellate function or

exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system.

Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is

spelling out reasons for the order made, in other words, a speaking-out. The ""inscrutable face of a sphinx"" is ordinarily incongruous with a judicial or

quasi-judicial performance. (Chairman and Managing Director, United Commercial Bank Vrs. P.C. Kakkar, reported in (2003) 4 SCC 364.â€​

Resultantly, the judgment of the learned appellate court is set aside. The matter is remitted back to the learned appellate court. The learned

appellate court shall dispose of the appeal keeping in view the law laid down by the apex Court in the case of B.V. Nagesh (supra).