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        REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos.670-671 OF 2011

C. Venkata Swamy        ….Appellant(s)

VERSUS

H.N. Shivanna(D) by L.R. & Anr. Etc.           …Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

1. These appeals are filed by the plaintiff against

the  final  judgment  and  order  dated  02.11.2006

passed by the High Court of Karnataka at Bangalore

in Regular First Appeal Nos.158 and 159 of 2005

whereby the High Court dismissed the appeals filed

by the appellant herein  

2. The facts of the case lie in a narrow compass.

Even the issue arising in these appeals is a short

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one.   It  would  be  clear  from the  facts  mentioned

hereinbelow.

3. The  appellant  is  plaintiff  in  O.S.  No.

6640/1996 and defendant in O.S. No. 2150 of 1992

whereas the respondents are defendants in O.S. No.

6640/1996 and plaintiffs in O.S. No. 2150 of 1992

in the suits  out of which these appeals arise.

4. The  appellant  filed  a  suit  being  O.S.  No.

6640/1996  in  the  Court  of  City  Civil  Judge,

Bangalore against the respondents for a declaration

and  permanent  injunction in  relation  to  the  land

described in detail in the plaint (hereinafter referred

to as "suit land") whereas original respondent No.1

also filed a cross suit being O.S. No. 2150 of 1992

against the appellant in relation to the suit land.  

5. Both the suits were clubbed together for their

disposal  because  both  were  between  the  same

parties and pertained to same subject matter.  

6. Parties  contested  the  suits  and  adduced

evidence.  The  Trial  Court,  by  common

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judgment/decree  dated  04.12.2004  dismissed  the

suit filed by the appellant, i.e., O.S. No. 6640/1996

and decreed the suit filed by respondent No.1, i.e.,

O.S. No. 2150/1992.  

7. The plaintiff in O.S. 6640/1996 felt aggrieved

and filed two first appeals under Section 96 of the

Code of Civil  Procedure, 1908 (hereinafter referred

to  as  “the  Code”)  before  the  High  Court  of

Karnataka.  By  impugned  judgment/decree,  the

Single Judge dismissed both the first appeals and

affirmed  the  judgment/decree  of  the  Trial  Court,

which has given rise to filing of the present appeals

by  special  leave  by  the  plaintiff  in  O.S.  No.

6640/1996 in this Court.

8. Heard Ms. Kiran Suri, learned senior counsel

for  the appellant  and Mr.  Rajesh Mahale,  learned

counsel for the respondents.

9. Having  heard  the  learned  counsel  for  the

parties and on perusal of the record of the case, we

are constrained to allow the appeals, set aside the

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impugned  judgment  and  remand  the  case  to  the

High Court for deciding both the first appeals afresh

on merits in accordance with law.

10.    The need to remand the case to the High

Court has occasioned for the reason that the Single

Judge  dismissed  the  appeals  very  cursorily  and

without undertaking any appreciation of  evidence,

dealing with various issues arising in the case and

discussing the arguments raised by the parties in

support of their case. In other words, the disposal of

the  two  first  appeals  could  not  be  said  to  be  in

conformity with the requirements of Section 96 read

with Order 41 Rule 31 of the Code.   

11. 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

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duty of  the first Appellate Court to appreciate the

entire  evidence and arrive  at  its  own independent

conclusion,  for  reasons  assigned,  either  of

affirmance or difference.

12. Similarly,  the  powers  of  the  first  Appellate

Court while deciding the first appeal are indeed well

defined by various judicial pronouncements of this

Court and are, therefore, no more res integra.   It is

apposite to take note of the law on this issue.

13. As far back in 1969, the learned Judge – V.R.

Krishna Iyer, J (as His Lordship then was the judge

of Kerala High Court) while deciding the first appeal

under Section 96 of the Code in Kurian Chacko vs.

Varkey Ouseph,  AIR  1969 Kerala 316, reminded

the first  Appellate  Court  of  its  duty to decide the

first appeal. In his distinctive style of writing with

subtle power of expression, the learned judge held

as under:  

“1.  The  plaintiff,  unsuccessful  in  two Courts,  has come up here aggrieved by the dismissal  of  his  suit  which  was  one  for declaration  of  title  and  recovery  of

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possession.  The  defendant  disputed  the plaintiff's  title  to  the  property  as  also  his possession and claimed both in himself. The learned Munsif, who tried the suit, recorded findings against the plaintiff both on title and possession.  But,  in  appeal,  the  learned Subordinate  Judge  disposed  of  the  whole matter glibly and briefly, in a few sentences. 2. An appellate court is the final Court of fact ordinarily and therefore a litigant is entitled to  a  full  and  fair  and  independent consideration of the evidence at the appellate stage.  Anything  less  than  this  is  unjust  to him and I have no doubt that in the present case the learned Subordinate Judge has fallen far short  of  what  is  expected of  him as an appellate  Court.  Although  there  is  furious contest between the counsel for the appellant and for the respondent, they appear to agree with me in this observation…..”

   (Emphasis supplied)

14. This Court also in various cases reiterated the

aforesaid principle and laid down the powers of the

Appellate Court under Section 96 of the Code while

deciding the first appeal.

15. We consider it apposite to refer to some of the

decisions.   

16. In  Santosh Hazari  vs.  Purushottam Tiwari

(Deceased) by L.Rs. (2001) 3 SCC 179, this Court

held (at pages 188-189) as under:

“.……..the appellate court has jurisdiction to reverse  or  affirm  the  findings  of  the  trial court. First appeal is a valuable right of the

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parties  and  unless  restricted  by  law,  the whole case is therein open for rehearing 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……while  reversing  a finding of fact the appellate court must come into  close  quarters  with  the  reasoning assigned by the trial court and then assign its own  reasons  for  arriving  at  a  different finding. This would satisfy the court hearing a further appeal that the first appellate court had  discharged  the  duty  expected  of it…………”  

17. The above view was followed by a three-Judge

Bench decision of this Court in Madhukar & Ors.

v.  Sangram & Ors.,(2001) 4 SCC 756, wherein it

was reiterated that sitting as a Court of first appeal,

it is the duty of the High Court to deal with all the

issues and the  evidence  led by the  parties  before

recording its findings.

18. In  H.K.N. Swami v.  Irshad Basith,(2005) 10

SCC 243, this  Court  (at  p.  244)  stated as under:

(SCC para 3)

“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

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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.”

19. Again  in  Jagannath v.  Arulappa  &  Anr.,

(2005) 12 SCC 303,  while considering the scope of

Section 96 of the Code, this Court (at pp. 303-04)

observed as follows:  

“2. A court of first appeal can reappreciate the  entire  evidence  and  come  to  a different conclusion……...”

20. Again  in  B.V  Nagesh  &  Anr. vs.  H.V.

Sreenivasa Murthy, (2010) 13 SCC 530, this Court

taking note of all the earlier judgments of this Court

reiterated the  aforementioned principle  with these

words:

“3. How the regular first  appeal  is  to be disposed of by the appellate court/High Court has been considered by this Court in various decisions.  Order 41 CPC 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;

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(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.

4. 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 is therein open for rehearing 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 first 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 v. Purushottam Tiwari, (2001) 3 SCC 179 at p. 188,  para  15  and  Madhukar v.  Sangram, (2001) 4 SCC 756 at p. 758, para 5.)

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

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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.”

21. The aforementioned cases were relied upon by

this  Court  while  reiterating  the  same principle  in

State  Bank  of  India  &  Anr. vs.  Emmsons

International Ltd. & Anr., (2011) 12 SCC 174 and

Union of India vs. K.V. Lakshman & Ors. (2016)

13 SCC 124.

22. In the light of foregoing discussion, we have no

option  but  to  allow  these  appeals,  set  aside  the

impugned  judgment  and  remand  the  case  to  the

High Court for deciding the appeals afresh on merits

in  accordance  with  law  keeping  in  view  our

observations made supra.  

23. We,  however,  make  it  clear  that  we  have

refrained from making any observation on merits of

the controversy having formed an opinion to remand

the case to the High Court. The High Court would,

therefore, decide the appeals uninfluenced by any of

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the observations in accordance with law. Since the

appeals are quite old, we request the High Court to

ensure expeditious disposal of the appeals.   

24. The appeals are accordingly allowed. Impugned

judgment is set aside with the aforesaid directions.

               ………...................................J.   [ABHAY MANOHAR SAPRE]

                             …... ……..................................J.             [NAVIN SINHA]

New Delhi; December 04, 2017