Sarada Charan Kapas vs Saila Rani Ghosh & Ors.

This first miscellaneous appeal is at the instance of the plaintiff challenging the Judgment and decree dated 30th August, 1990 passed by the First Appellate Court below setting aside the Judgment and decree of the Trial Court passed on 26th April, 1990 whereby the learned Trial Court dismissed the suit filed by the plaintiff on consideration of the evidence led by the parties and the documents on record which were marked exhibits. The suit having been dismissed by the Trial Court the plaintiff filed appeal being Title Appeal No. 21 of 1990. From the record of the Appeal Court it appears that together with the appeal an application was also filed by the appellant praying for stay. The present respondent also filed a caveat on behalf of his client who was respondent no. 1 in the Court below. On 23rd August, 1990 it was recorded by the Court "appellant files Haziras, caveator/respondent no. 1 enters appearance through Vokalatnama. Both the learned Advocates appeared and caveator/respondent no. 1 praying by a petition for time to file objection against the petition filed on 26.07.1990 by the appellant, praying for staying the operation of the Judgment and decree dated 26th April, 1990 passed by the learned Court below during the pendency of the appeal. All the petitions filed by the appellant and caveator/respondent no. 1 to be put up on 29.08.1990 for hearing in presence of Advocates for both sides, an order".

On 29th August, 1990 both the parties filed their respective Haziras. The record was put up and the appeal itself was taken up for hearing. It is mentioned in the said order that appeal in question has been resumed before admitting the appeal on account of existence of a caveat filed by the respondent no. 1. The learned Court below fixed the matter on 30th August, 1990 for delivery of Judgment. On 30th August, 1990 Judgment was delivered and the appeal was dismissed on contest with costs thereby the Judgment and decree passed by the learned Munsif in T. S. No. 140 of 1983 was confirmed. This miscellaneous appeal has been filed by Mr. Banerjee's client against the said First Appellate Court's order on affirmation of the Judgment and decree passed by the Trial Court. Therefore, record reveals that on the first day when the matter was fixed for hearing of the application the Court without assigning any reason took up the appeal for hearing since the learned Advocate for the respondent no. 1 was present. Mr. Banerjee appearing for the appellant submits that the learned First Appellate Court below is procedurally wrong in disposing of the first appeal on the first day of hearing even if the first appeal was not required to be formally admitted but the learned Court below ought to have directed for issuance of notice of appeal upon the respondents, should have called for records of the Trial Court and thereafter ought to have taken up the appeal for hearing. That having not been done, according to Mr. Banerjee, the learned First Appellate Court below has committed gross illegality and in violation of the provisions of Section 96, Section 105 and Section 107 of the Code of Civil Procedure. Mr. Banerjee submits that Order 41 Rule 31 of the Code is applicable in the present case. Rule 31 is quoted below:-

"Rule 31 emphasize that the Judgment of the Appellate Court shall be in writing and shall state about various things including the reasons for the decision and points for determination".

In the present case, the learned Munsif decided the suit after framing various issues on the question of acceptability of a gift by respondent nos. 5 and 6 and the genuineness of the deed of gift. The parties led evidence with respect to their respective pleadings and the Trial Court had occasion to assess the evidentiary value of the documents exhibited before it and after considering the oral evidence led by the parties the Trial Court came to the conclusion that the plaintiff's claim could not survive rather he is not entitled to 16 annas share of the property but he is entitled to a portion of the suit property as indicated in the gift deed. This is apparent from the record that the learned Trial Court arrived at such a conclusion only after perusal of the evidence and the exhibits and its genuineness on the question. Therefore, the Appellate Court below can go into the merits of the case only after comparing the finding of the Trial Court with that of the exhibits and the evidence on record. The learned Appellate Court below has conducted hearing of the appeal in a manner which is not permitted within the scope of Sections 96, 105 and 107 of the Code of Civil Procedure.

Section 96 indicates that an appeal shall lie from every decree passed by the Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court. Section 107 says that the Appellate Court shall have the same power and shall perform as nearly as may be of the same duties as are conferred and imposed by this Court as Courts of original jurisdiction in respect of suit instituted. Therefore, the Appellate Court while exercising Appellate jurisdiction under Section 107 shall have all the power as vested with the Trial Court. The Appellate Court being the Court of fact and law is authorized to deal with the facts in detail more so when the Appellate Court is the last Court of fact. Therefore, the First Appellate Court by no stretch of imagination can assess the Judgment appealed against without considering the evidence and other materials on record. Whether or not, the Trial Court arrived at a finding correctly or otherwise the Appellate Court unless considers such evidence can not apply the same on the basis of the pleadings of the parties. A decision cannot be reached to hold that either the Trial Court has committed no error or committed error. When the Appellate Court confirms the Judgment and decree of the Trial Court he cannot act blindly; he has to take into evidence and the records. Admittedly, in this case no record has been called for. Mr. Banerjee in support of his prayer for setting aside the Appellate Court's Judgment and decree has relied on a decision in the case of H. Siddiqui (Dead) By LRS. -Vs.- A Ramalingam, reported in (2011) 4 SCC 240. In the said decision it has been pointed out that the First Appellate Court has to act strictly in adherence with the provisions contained in Order 41 Rule 31 of the Code of Civil Procedure. The Apex Court further held that the provisions of Order 41 Rule 31 of the Code provide guidelines for the Appellate Court as to how the Court has to proceed and decide the case. It is mandatory for the Appellate Court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. These materials are totally absent in the Judgment and decree of the Appellate Court below as has already been pointed out earlier.

Mr. Banerjee further relies on a Judgment in the case of Union of India - Vs.- K. V. Lakshman & Ors., reported in (2016) 13 SCC where the Hon'ble Apex Court has held in a similar way that the Court whose Judgment was under challenge acted illegally in dismissing the appeal in limine. Paragraphs 5, 7, 9, 12, 13, 19 and 21 are set out hereinbelow :-

"5. The respondents filed their written statements and while denying the appellant's title asserted their own title over the suit land through their predecessors. According to them, their predecessors acquired occupancy rights under the State Tenancy Laws over the suit land in revenue proceedings. It was contended that by virtue of these proceedings, their ancestors acquired superior title over the suit land to the exclusion of everyone including the appellant and the same devolved on them after the death of their predecessor-in-title. The respondents also raised a plea that the suit is barred by limitation. The trial Court on the basis of the pleading framed issues arising in the civil suit. Parties adduced evidence.

The trial Court vide judgment/decree dated 11-12-2001 dismissed the suit on two grounds. It was held that the suit is barred by limitation. It was further held that the plaintiff (the appellant) failed to prove their title over the suit land for want of adequate evidence whereas the defendants (respondents) were able to prove their title over the suit land.

The learned Single Judge, by the impugned judgment running into 50 pages, dismissed the appellant's first appeal in limine and, in consequence, upheld the judgment/decree of the trial Court. The learned Single Judge also dismissed the application filed by the appellant under Order 41 Rule 27 of the Code holding that firstly, the cause mentioned in the application as to why the additional evidence could not be filed in the civil suit before the trial court is not sufficient cause and secondly, the additional evidence sought to be tendered is neither material nor relevant. Felt aggrieved, the plaintiff has filed this appeal by way of special leave before this Court.

Firstly, the learned counsel urged that the appeal being in the nature of first appeal under Section 96 of the Code should have been admitted for final hearing almost as of right unlike the second appeal which is not admitted for final hearing unless it involves some substantial question of law. The learned counsel urged that had the appeal been admitted for final hearing, then the High Court wou8ld have been able to go into all questions of facts and law in its first appellate jurisdiction by party and come to a conclusion different from that of the trial court.

Secondly, the learned counsel urged that since a right to file the first appeal is a valuable legal right, such right could not be taken away by the High Court in a casual manner by dismissing the appellant's first appeal in limine.

As rightly argued by the learned counsel for the appellant, the High Court should not have dismissed the appeal in limine but in the first instance should have admitted the appeal and then decided finally after serving notice of the appeal on the respondents.

It is a settled principle of law that a right to file first appeal against the decree under Section 96 of the Code 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 may come to a conclusion different from that of the trial court".

Mr. Hazra, learned Advocate appearing for the respondent nos. 1 to 4 submits that when a pure question of law is involved in an appeal before the First Appellate Court, the First Appellate Court would be at liberty to dispose of the appeal even without calling for the records and without scrutinizing the evidence on record. According to him there is no wrong committed by the learned Appellate Court below in affirming the Judgment and decree passed by the Trial Court where the only dispute is with regard to the acceptance of the gift made by the predecessor of the respondent nos. 5 and 6. On this issue he has relied on a Judgment of the Apex Court in the case of Bolin Chatia -Vs.- J. B. & Ors., reported in (2005) 6 SCC 81. On perusal of the said decision it appears that the said decision is distinguishable on facts. Paragraph 13 of the said decision if taken into consideration it appears that matter arose from a dispute arising out of representation of People Act and has a nexus with an application under Section 483 of the Companies Act, 1956 which came up for consideration before a Division Bench of Bombay High Court. Section 483 provides that the appeals from any order or decision in the matter of winding up of a Company by the Court shall lie to the same Court to which in the same manner and subject to the same conditions under which appeals lie from any order or decision of the Court in cases within its ordinary jurisdiction. The use of the word 'shall' makes it clear that the right of appeal conferred by the provisions is as of right where Division Bench held that an Appellate Court under Section 483 has authority to hear the appellant on the merits at the admission stage and decide whether the complain raised in appeal had prima facie substance or not. Here the Court held that the provisions does not put any fetter on the power of the Court to rule worthless appeal at the initial or admission stage and it could not be said that mere institution of the appeal would tantamount to its admission and should go for final hearing.

On such consideration the Apex Court held that if a question of law is involved the appeal even can be disposed of at the first hearing. Therefore, the fact involved in the said case is not applicable in the present case. I, therefore, agree with the contention made by Mr. Banerjee and in view of the decision of the Hon'ble Apex Court as indicated earlier I hold that the learned First Appellate Court assumed a jurisdiction not vested with him under the law in dismissing the appeal on merit on the first day without issuing notice to the parties and without calling for the records. Admittedly, the First Appellate Court did not consider the fact and also the evidence and other documents on record. The decision of the First Appellate Court led to a miscarriage of justice and accordingly the Judgment and decree under appeal cannot be sustained and the same is set aside. However, since the matter has not been decided by the Appellate Court below taking into consideration of the records, exhibits and evidence on record the matter is sent back on remand before the learned Court of Appeal below. The learned Appellate Court below will decide the case afresh on all issues.

Since the suit is of 1983 learned Court below is directed to dispose of the appeal within a period of six months from date.

Lower Court records be sent down immediately.

Since the appeal has been remanded back the learned Court below is directed to issue fresh notice upon the parties.