B.V.Nagesh & ANR.
Vs. H.V.Sreenivasa Murthy [2010] INSC 775 (24 September 2010)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 8259 OF 2010 (@ SPECIAL
LEAVE PETITION (CIVIL) NO. 20146 OF 2009) B.V. Nagesh & Anr. .... Appellant
(s) Versus H.V. Sreenivasa Murthy .... Respondent(s) ORDER
1.
Leave
granted.
2.
Heard
learned senior counsel for the appellants and respondent appearing in person.
3.
The
impugned judgment passed by the High Court arose out of regular first appeal
filed under Section 96 CPC. It is the grievance of the appellants that the High
Court, without adverting to all the factual details and various grounds raised,
disposed of the appeal in a cryptic manner. In the light of the above
assertion, we verified the impugned judgment of the High Court. The High Court,
after narrating the pleadings of both parties, without framing points for
determination and considering both facts and law set aside the judgment and
decree of the trial Court and modified the same without proper discussion and
assigning adequate reasons.
4.
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 XLI of C.P.C. 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. reasons for the
decision; and - d) where the decree appealed from is reversed or varied, the
relief to which the appellant is entitled.
1.
2.
3.
4.
5.
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 re-hearing 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] 5) 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.
6.
Inasmuch
as the first appeal is pending from 2003, we request the High Court to dispose
of the same as expeditiously as possible. The civil appeal is disposed of
accordingly.
..........................................J.
(P. SATHASIVAM)
..........................................J.
(DR. B.S.CHAUHAN)
NEW
DELHI;
SEPTEMBER
24, 2010.
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