MALLURU MALLAPPA (D) THR. LRS. versus KURUVATHAPPA & ORS. on 12 February 2020

1. Delay condoned. Leave granted.

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2. This is the plaintiff’s appeal challenging the judgment and decreein RFA No.1731 of 2006 dated 09.02.2012 passed by the High Court ofKarnataka at Bangalore, whereby the High Court has confirmed thejudgment and decree passed by the trial court in O.S. No. 32 of 2005dated 09.06.2006.

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3. The plaintiff filed the above suit against the respondents/defendants for specific performance of the agreement to sell dated30.3.2000. The agreement provided that the sale was to be executedwithin three years from the date of the agreement, subject to thedefendants fulfilling certain obligations.

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4. Defendant No.1 filed the written statement and the otherdefendants filed a memo adopting the same as their written statement.Defendant No.1 admitted the execution of the agreement to sell in favourof the plaintiff. However, the defendant pleaded that the suit was barredby limitation. It was further contended that plaintiff was not ready andFwilling to perform his part of the contract.

5. Based upon the rival pleadings of the parties, the trial courtframed the following issues: - “1. Whether the plaintiff proves that, the defendants 1 and 2 theirfather have executed an agreement to sell on 30.3.2000 forGRs.2,00,000/- in favour of the plaintiff after receivingRs.1,50,000/- as earnest money?

2. Whether the plaintiff proves that, he is always ready and willingto perform his part of contract?

3. Whether the suit of the plaintiff is barred by limitation?

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4. What order or decree?”

6. The plaintiff got himself examined as PW-1 and Ex. P-1, P1(a)to (c) were marked in his evidence. The defendant No.1 was examinedas DW1 and three other witnesses were examined as DW-2 to 4. Onappreciation of the evidence on record, the trial court held that the suitwas barred by time. It was also held that the plaintiff was not ready andwilling to perform his part of the contract. The suit was accordinglydismissed.

7. As noticed above, the High Court has confirmed the said decreeof the trial court.

8. We have heard Shri S.N. Bhat, learned counsel for the appellant/plaintiff. Though notice was served on the respondents, no one has enteredappearance on their behalf.

9. Shri Bhat, learned counsel, has made two-fold submissions.Firstly, he submits that the High Court has passed a cryptic judgmentwithout reappreciating the evidence on record. It was argued that thefirst appeal filed by the plaintiff under Section 96 of the Code of CivilProcedure, 1908 (for short ‘the CPC’) was a continuation of the suitand it was incumbent upon the High Court to reassess the entire evidenceon record. It was argued that the High Court as an appellate court hasfailed to follow the guidelines provided under Order XLI Rule 31 of theCPC while deciding the appeal. Secondly, it was argued that the agreementto sell was dated 30.03.2000, providing for three years’ time from thedate of the agreement to complete the execution of the sale deed. Thesuit was filed on 28.01.2005 which was well within time. Referring toArticle 54 of the Schedule to the Limitation Act, 1963, (for short ‘theLimitation Act’) it was submitted that when a date is fixed for performanceof the contract, the period of limitation for filing the suit is three yearsfrom the date fixed for the performance. It was further argued thatthere is no finding by the High Court as to the readiness and willingnessof the plaintiff to perform his part of the contract.

10. We have carefully considered the submission of the learnedcounsel made at the Bar and perused the materials placed on record.

11. Section 96 of the CPC provides for filing of an appeal fromthe decree passed by any court exercising original jurisdiction to thecourt authorized to hear the appeals from the decisions of such courts.In the instant case, the appeal from the decree passed by the trial court A

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Alies to the High Court. The expression ‘appeal’ has not been defined inthe CPC. Black’s Law Dictionary (7[th] Edn.) defines an appeal as “aproceeding undertaken to have a decision reconsidered by bringing it toa higher authority.” It is a judicial examination of the decision by ahigher court of the decision of a subordinate court to rectify any possibleerror in the order under appeal. The law provides the remedy of anBappeal because of the recognition that those manning the judicial tierstoo commit errors.

12. In Hari Shankar v. Rao Girdhari Lal Chowdhury[1]it washeld that a right of appeal carries with it a right of re-hearing on law aswell as on fact, unless the statute conferring a right of appeal limits theCre-hearing in some way as has been done in second appeal arising underthe CPC.

13. In Shankar Ramchandra Abhyankar v. KrishnajiDattatreya Bapat[2] it was held thus:

D5. ……….. In the well known work of Story on Constitution (ofUnited States), Vol. 2, Article 1761, it is stated that the essentialcriterion of appellate jurisdiction is that it revises and corrects theproceedings in a cause already instituted and does not create thatcause. The appellate jurisdiction may be exercised in a variety offorms and, indeed, in any form in which the Legislature may chooseEto prescribe. According to Article 1762 the most usual modes ofexercising appellate jurisdiction, at least those which are mostknown in the United States, are by a writ of error, or by an appeal,or by some process of removal of a suit from an inferior tribunal.An appeal is a process of civil law origin and removes a cause,Fentirely subjecting the fact as well as the law, to a review and aretrial…….”

14. It is a settled position of law that an appeal is a continuation ofthe proceedings of the original court. Ordinarily, the appellate jurisdictioninvolves a re-hearing on law as well as on fact and is invoked by anGaggrieved person. The first appeal is a valuable right of the appellantand therein all questions of fact and law decided by the trial court areopen for re-consideration. Therefore, the first appellate court is requiredto address itself to all the issues and decide the case by giving reasons.The court of first appeal must record its findings only after dealing with 1 AIR 1963 SC 698H2 1969 (2) SCC 74

all issues of law as well as fact and with the evidence, oral as well asdocumentary, led by the parties. The judgment of the first appellate courtmust display conscious application of mind and record findings supportedby reasons on all issues and contentions [see: Santosh Hazari v.Purushottam Tiwari (Deceased) By Lrs.[3], Madhukar and othersv. Sangram and Others[4], B. M. Narayana Gowda v. Shanthamma(Dead) By Lrs. and Another[5], H. K. N. Swami v. Irshad Basith(Dead) By Lrs.[6]and M/s. Sri Raja Lakshmi Dyeing Works v.Rangaswamy Chettiar[7]].

15. A first appeal under Section 96 of the CPC is entirely differentfrom a second appeal under Section 100. Section 100 expressly barssecond appeal unless a question of law is involved in a case and thequestion of law so involved is substantial in nature.

16. Order XLI Rule 31 of the CPC provides the guidelines for theappellate court to decide the matter. For ready reference Order XLIRule 31 of the CPC is as under: - “31. Contents, date and signature of judgment.- The judgmentof the Appellate Court shall be in writing and 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; and shall at the time it is pronounced be signed and dated by theJudge or by the Judges concurring therein.”

17. In Vinod Kumar v. Gangadhar[8] this Court has reiterated theprinciples to be borne in mind while disposing of a first appeal, as under:- “15. Again in B.V. Nagesh v. H.V. Sreenivasa Murthy [(2010)13 SCC 530 : (2010) 4 SCC (Civ) 808] , this Court taking note of 3 (2001) 3 SCC 1794 (2001) 4 SCC 756

5 (2011) 15 SCC 476

6 (2005) 10 SCC 243

7 (1980) 4 SCC 2598 (2015) 1 SCC 391

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all the earlier judgments of this Court reiterated the aforementionedprinciple with these words: (SCC pp. 530-31, paras 3-5)

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“3. How the regular first appeal is to be disposed of by theappellate court/High Court has been considered by this Courtin various decisions. Order 41 CPC deals with appeals fromoriginal decrees. Among the various rules, Rule 31 mandatesthat the judgment of the appellate court shall state:

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(a) the points for determination;

(b) the decision thereon;

(c) the reasons for the decision; and

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(d) where the decree appealed from is reversed or varied, therelief to which the appellant is entitled.

4. The appellate court has jurisdiction to reverse or affirm thefindings of the trial court. The first appeal is a valuable right ofDthe parties and unless restricted by law, the whole case is thereinopen for rehearing both on questions of fact and law. Thejudgment of the appellate court must, therefore, reflect itsconscious application of mind and record findings supportedby reasons, on all the issues arising along with the contentionsput forth, and pressed by the parties for decision of the appellateEcourt. Sitting as a court of first appeal, it was the duty of theHigh Court to deal with all the issues and the evidence led bythe parties before recording its findings. The first appeal is avaluable right and the parties have a right to be heard both onquestions of law and on facts and the judgment in the firstappeal must address itself to all the issues of law and fact andFdecide it by giving reasons in support of the findings. (VideSantosh Hazari v. Purushottam Tiwari [(2001) 3 SCC 179 :(2001) 1 SCR 948] , SCC p. 188, para 15 and Madhukar v.Sangram [(2001) 4 SCC 756] SCC p. 758, para 5.)”

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18. In Shasidhar and Ors. v. Ashwani Uma Mathad and Anr.[9],Git was held as under:- “21. Being the first appellate court, it was, therefore, the duty ofthe High Court to decide the first appeal keeping in view the scopeand powers conferred on it under Section 96 read with Order 41

H9 (2015) 11 SCC 269

Rule 31 of the Code mentioned above. It was unfortunately notdone, thereby, causing prejudice to the appellants whose valuableright to prosecute the first appeal on facts and law was adverselyaffected which, in turn, deprived them of a hearing in the appealin accordance with law.”

19. It is clear from the above provisions and the decisions of thisCourt that the judgment of the first appellate court has to set out pointsfor determination, record the decision thereon and give its own reasons.Even when the first appellate court affirms the judgment of the trialcourt, it is required to comply with the requirement of Order XLI Rule31 and non-observance of this requirement leads to infirmity in thejudgment of the first appellate court. No doubt, when the appellate courtagrees with the views of the trial court on evidence, it need not restateeffect of evidence or reiterate reasons given by trial court. Expressionof a general agreement with the reasons given by the trial court wouldordinarily suffice.

20. Keeping in mind the above principles, let us examine the presentcase. As stated above, the issue relating to readiness and willingness ofthe plaintiff to perform his part of the contract and issue relating tolimitation were held against the plaintiff and the suit was accordinglydismissed. The appeal before the High Court involved both disputedquestions of law and fact. The High Court without examination of anyof these aspects has dismissed the appeal by a cryptic order. The courtbelow has neither reappreciated the evidence of the parties, nor it haspassed a reasoned order. The High Court has failed to follow the provisionsof Order XLI Rule 31 of the CPC while deciding the appeal. Mr. Bhathas argued that the suit was well within time under Article 54 of theSchedule to the Limitation Act. Even this question has not been examinedin its proper perspective.

21. In the result, the appeal succeeds and is accordingly allowedin part. The judgment and decree of the High Court in RFA No.1731 of2006 dated 09.02.2012, is set aside and the matter is remanded to theHigh Court for fresh disposal in accordance with law.

22. All the contentions of the parties are left open. There will beno order as to costs.

Divya Pandey

Appeal partly allowed and remanded to High Court.

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