B.M.Narayana Gowda Vs
Shanthamma (D) By LRS and ANR.
O R D E R
We have heard learned
counsel for the parties.
The High Court, in
the instant appeal, while deciding the First Appeal under Section 96 of the
Code of Civil Procedure has allowed the appeal and set aside the judgment and decree
of the trial Court without properly examining the facts and law. This Court has
observed in a number of cases that the first appeal is a valuable right of the appellant
and therein all questions of fact and law decided by trial court are open for reconsideration.
In a case where the High Court found the trial court judgment is unsatisfactory
and wanted to set aside the judgment, the High Court ought to have carefully
examined the facts and the law and given cogent reasons for setting aside the trial
court judgment. The legal position in law is no longer res integra. This Court
had repeatedly said that in first appeal the High Court needs to decide
questions of fact and law comprehensively by giving full-dressed hearing. Learned
counsel for the appellant has drawn our attention to a judgment of this Court in
Sanjay Singh Rawat and Others Vs. National Small Industries Corpn. Ltd. and Others,
(2005) 12 SCC p.146, the relevant portion of the judgment i.e. paras 3 and 4, reads
as under : "
3. Having heard the
learned counsel for the parties, we are satisfied that the first appeal filed in
the High Court did raise questions of fact and law which called for a
full-dressed hearing. First appeal is a valuable right of the appellant and
therein all the questions of fact and law decided by the trial court are open for
reconsideration. In our opinion, the disposal of the appeal by the High Court, in
the manner in which it has been done, is not satisfactory.
4. The appeal is allowed.
The impugned order of the High Court dismissing the appeal summarily is set aside.
The appeal is remanded to the High Court for hearing and decision afresh and in
accordance with law." Learned counsel for the appellant also placed
reliance on another judgment of this Court in H.K.N.Swami Vs. Irshad Basith (Dead)
by Lrs., (2005) 10 SCC p.243, relevant portion of the judgment i.e. para 3,
reads as under : "
3. The first appeal
has to be decided on facts as well as on law. In the first appeal parties have
the right to be heard both on questions of law as also on facts and the first
appellate court is required to address itself to all issues and decide the case
by giving reasons. Unfortunately, the High Court, in the present case has not recorded
any finding either on facts or on law. Sitting as the first appellate court it
was the duty of the High Court to deal with all the issues and the evidence led
by the parties before recording the finding regarding title. The order of the High
Court is cryptic and the same is without assigning any reason." Learned
counsel for the appellant also placed reliance on yet another judgment of this
Court in Rama Pulp & Papers Ltd. Vs. Maruti N.Dhotre, (2005) 12 SCC p.186.
In this judgment, this
Court observed that in first appeal the High Court has to properly consider the
evidence on record or for that matter even the arguments and the grounds raised
in support of their case. We are constrained to observe that in the impugned
judgment the High Court has not followed the settled legal position
crystallized by a number of judgments of this Court. Consequently, we set aside
the impugned judgment and remit the matter to the Division Bench of the High Court
for fresh consideration in accordance with law. We request the High Court to dispose
of the appeal as expeditiously as possible. We direct the parties to maintain
status quo, as of today, till the disposal of the appeal by the High Court. With
these observations, the appeal is disposed of, leaving the parties to bear
their own costs.
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