Smt Kamlawati Gupta vs Kanwari Lal Jain S/o Shri Rajmal Jain

The instant civil second appeal under Section 100 read with

Order 41 Rule 1 CPC is directed against the judgment and decree

dated 6th December, 2008 passed by the learned Additional District

Judge No.2, Jaipur City, Jaipur whereby the appeal filed by the

defendant respondent against judgment and decree dated 11 th

September 2002 passed by the Addl. Civil Judge (Sr. Div.) No.1,

Jaipur City, Jaipur in Civil Suit No.37/89 had been set aside and

the suit filed by the plaintiff appellant for eviction had been

dismissed.

Brief facts giving rise to the present appeal are that the plaintiff-appellant filed a suit for eviction against the defendant

respondent from the suit shop on the ground of personal, bonafide

requirement in the trial court. The suit was resisted by the

defendant respondent by filing written statement.

The learned trial court after framing issues afforded

opportunity to both the parties to lead evidence and after

recording evidence of both the parties and hearing arguments, the

trial court by its judgment and decree dated 19 th September, 2002

decreed the suit of the plaintiff-appellant.

Aggrieved by the judgment and decree of the trial court, the

defendant-respondent filed regular first appeal before the lower

appellate court and the same was allowed vide judgment and

decree dated 6th December, 2008 and the suit filed by the plaintiff

appellants was dismissed. Hence, the present second appeal.

This Court on 15th April, 2014 admitted the appeal on the

following substantial questions of law:-

"1. Whether the First Appellate Court has mis-appreciated the evidence on record and recorded the perverse findings against the appellant plaintiff while setting aside the decree passed by the Trial Court ?

Whether the First Appellate Court has committed an error of law apparent on the face of record in misinterpretating the provisions contained in Rajasthan Premises (Control of Rent and Eviction) Act, 1950, while holding that the appellant-original plaintiff did not require the suit premises benafide ?"

After arguing the matter at length, learned counsel for both

the parties have fairly admitted that the appellate court''s

judgment does not follow the requirement of Section 96 CPC and,

therefore, agreed that the matter may be remanded back to the

lower appellate court to decide the regular first appeal afresh in

accordance with law.

I have considered the rival submissions made by the learned

counsel for the parties.

In the case of Santosh Hazari vs. Purushottam Tiwari

(Deceased) By Lrs . {(2001) 3 SCC 179), it was held by the

Supreme Court that the judgment of first appellate court must

display conscious application of mind and record finding supported

by reasons on all issues and contentions and that the first

appellate court while reversing a finding of fact must assign its

own reasons for the different finding. It was further held that

where conflicting oral evidence has been adduced before trial

court and trial court has decided the issue concerned on the basis

of credibility of witness, the appellate court ought not to interfere

with the findings of trial judge on a question of fact unless the

latter has overlooked some peculiar feature connected with

evidence of a witness or such evidence on balance is sufficiently

improbable so as to invite displacement by appellate court.

Considering the nature and scope of first appeal filed under

Section 96 read with Order 41 Rule 31 CPC and the duty of the

first appellate court, the Supreme Court in Vinod Kumar vs.

Gangadhar { (2015) 1 SCC 391} held that it is the duty of the

first appellate court to deal with all issues and evidence led by

parties before recording its findings. In this case the appellant

plaintiff filed a suit for specific performance of contract against the

defendant which was dismissed by the trial court. The appellant

filed first appeal before the High Court which was dismissed by the

learned Single Judge against which the appellant approached the

Supreme Court by way of filing civil appeal. It was argued 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. It was also submitted that 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 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. The High Court being the first appellate

court and exercising its appellate powers under Section 96 read

with Order 41 Rule 31 CPC to have dealt with the submissions

which were urged by the appellant after appreciating the entire

evidence on facts, independent of the findings of the trial court

and should have come to its own conclusion keeping in view the

legal principles governing the issues.

Considering various earlier pronouncements, the appeal was

allowed and the case was remanded back to the High Court for

deciding the first appeal afresh keeping in view the principles of

law laid down by the Supreme Court.

The Apex Court in Union of India vs. K.V. Lakshman &

Others {(2016) 13 SCC 124) held as under:

"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."

Holding as above, the case was remanded back to the trial

court for deciding the civil suit in accordance with law on the basis

of pleadings and evidence adduced by the parties.

Since, in the instant case learned counsel for both the

parties have fairly admitted that the learned first appellate court

has not followed the requirement of Section 96 CPC and that the

matter may be remanded back to the first appellate court for

deciding the first appeal afresh, the instant civil second appeal is

allowed. The impugned judgment and decree dated 11.9.2002

passed by the first appellate court is, set aside and the matter is

remanded back to the first appellate court for deciding the first

appeal afresh in accordance with law after giving opportunity of

hearing to both the parties.

In view of remand of the case to the first appellate court, the

substantial questions of law framed in the appeal, need not to be

answered.

Both the parties are directed to remain present before the

first appellate court on 1st June, 2017. The first appellate court is

directed to decide the first appeal expeditiously but not later than

five months from the receipt copy of this order.

Office is directed to remit the case file along with the record

of both the courts below along with a copy of this order to the

first appellate court forthwith.