REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.   1485      OF 2020 [Arising out of SLP(C) No.18092 of 2014]

MALLURU MALLAPPA(D) THR. LRS. … APPELLANT(S)  

VERSUS

KURUVATHAPPA & ORS.         … RESPONDENTS

J U D G M E N T

 S. ABDUL NAZEER, J.

1. Delay condoned.  Leave granted.

2. This is the plaintiff’s appeal challenging the judgment and decree in RFA

No.1731 of 2006 dated 09.02.2012 passed by the High Court of Karnataka at

Bangalore,  whereby the High Court  has confirmed the judgment and decree

passed by the trial court in O.S. No. 32 of 2005 dated 09.06.2006.  

3. The plaintiff filed the above suit against the respondents/defendants for

specific performance of the agreement to sell dated 30.3.2000.  The agreement

provided that the sale was to be executed within three years from the date of the

agreement, subject to the defendants fulfilling certain obligations.

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4. Defendant No.1 filed the written statement and the other defendants filed

a memo adopting the same as their written statement.  Defendant No.1 admitted

the execution of the agreement to sell in favour of the plaintiff.  However, the

defendant  pleaded  that  the  suit  was  barred  by  limitation.   It  was  further

contended that plaintiff was not ready and willing to perform his part of the

contract.   

5. Based upon the rival pleadings of the parties, the trial court framed the

following issues: -   “1.Whether the plaintiff proves that, the defendants 1 and 2 their father  have  executed  an  agreement  to  sell  on  30.3.2000  for Rs.2,00,000/-  in  favour  of  the  plaintiff  after  receiving Rs.1,50,000/- as earnest money?

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

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

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 examined as DW1 and

three other witnesses were examined as DW-2 to 4.  On appreciation of the

evidence on record, the trial court held that the suit was barred by time.  It was

also held that the plaintiff was not ready and willing to perform his part of the

contract. The suit was accordingly dismissed.

7. As noticed above, the High Court has confirmed the said decree of the

trial court.

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8. We have heard Shri S.N. Bhat, learned counsel for the appellant/plaintiff.

Though notice was served on the respondents, no one has entered appearance on

their behalf.

9. Shri Bhat, learned counsel, has made two-fold submissions.  Firstly, he

submits  that  the  High  Court  has  passed  a  cryptic  judgment  without

reappreciating the evidence on record.  It was argued that the first appeal filed

by the plaintiff under Section 96 of the Code of Civil Procedure, 1908 (for short

‘the CPC’) was a continuation of the suit and it was incumbent upon the High

Court to reassess the entire evidence on record.  It was argued that the High

Court as an appellate court has failed to follow the guidelines provided under

Order XLI Rule 31 of the CPC while deciding the appeal.  Secondly, it was

argued that  the agreement  to  sell  was  dated 30.03.2000,  providing for  three

years’ time from the date of the agreement to complete the execution of the sale

deed.  The suit was filed on 28.01.2005 which was well within time.   Referring

to  Article  54  of  the  Schedule  to  the  Limitation  Act,  1963,  (for  short  ‘the

Limitation Act’) it was submitted that when a date is fixed for performance of

the contract, the period of limitation for filing the suit is three years from the

date fixed for the performance.  It was further argued that there is no finding by

the High Court as to the readiness and willingness of the plaintiff to perform his

part of the contract.

10. We have carefully considered the submission of the learned counsel made

at the Bar and perused the materials placed on record.

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11.   Section 96 of the CPC provides for filing of an appeal from the decree

passed by any court exercising original jurisdiction to the court 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 lies to the High Court.  The

expression ‘appeal’ has not been defined in the CPC.  Black’s Law Dictionary

(7th Edn.)  defines an appeal  as  “a proceeding undertaken to have a decision

reconsidered by bringing it to a higher authority.”  It is a judicial examination of

the decision by a higher court of the decision of a subordinate court to rectify

any possible error in the order under appeal.  The law provides the remedy of an

appeal  because  of  the  recognition  that  those  manning  the  judicial  tiers  too

commit errors.  

12. In  Hari Shankar v. Rao Girdhari Lal Chowdhury1 it was held that a

right of appeal carries with it a right of re-hearing on law as well as on fact,

unless the statute conferring a right of appeal limits the re-hearing in some way

as has been done in second appeal arising under the CPC.  

13. In  Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat2

it was held thus:

5. ………..  In  the  well  known  work  of  Story  on Constitution (of United States),  Vol.  2, Article 1761, it  is stated that the essential criterion of appellate jurisdiction is that  it  revises  and  corrects  the  proceedings  in  a  cause already  instituted  and  does  not  create  that  cause.  The appellate jurisdiction may be exercised in a variety of forms and,  indeed,  in  any  form  in  which  the  Legislature  may

1 AIR 1963 SC 698 2  1969 (2) SCC 74

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choose  to  prescribe.  According  to  Article  1762  the  most usual  modes  of  exercising  appellate  jurisdiction,  at  least those which are most known 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,  entirely subjecting the fact  as well  as  the law,  to  a review and a retrial…….”

14. It  is  a  settled  position  of  law that  an  appeal  is  a  continuation  of  the

proceedings of the original court.  Ordinarily, the appellate jurisdiction involves

a re-hearing on law as well as on fact and is invoked by an aggrieved person.

The first appeal is a valuable right of the appellant and therein all questions of

fact and law decided by the trial court are open for re-consideration. Therefore,

the first appellate court is required to 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 all issues of law as well as fact and with the evidence,

oral  as  well  as  documentary,  led  by  the  parties.  The  judgment  of  the  first

appellate court must display conscious application of mind and record findings

supported by reasons on all  issues and contentions [see:  Santosh Hazari  v.

Purushottam Tiwari (Deceased) By Lrs.3, Madhukar and others v. Sangram

and Others4, B. M. Narayana Gowda v. Shanthamma (Dead) By Lrs. and

Another5,  H. K. N. Swami  v. Irshad Basith (Dead) By Lrs.6 and M/s. Sri

Raja Lakshmi Dyeing Works v. Rangaswamy Chettiar7].

3 (2001) 3 SCC 179 4 (2001) 4 SCC 756 5 (2011) 15 SCC 476 6 (2005) 10 SCC 243 7 (1980) 4 SCC 259

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15.    A first appeal under Section 96 of the CPC is entirely different from a

second appeal under Section 100.  Section 100 expressly bars second appeal

unless  a  question  of  law is  involved  in  a  case  and  the  question  of  law so

involved is substantial in nature.

16. Order XLI Rule 31 of the CPC provides the guidelines for the appellate

court to decide the matter.  For ready reference Order XLI Rule 31 of the CPC

is as under: -

“31.  Contents,  date  and  signature  of  judgment.- The judgment of 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 the Judge or by the Judges concurring therein.”

17. In Vinod Kumar v.  Gangadhar8 this Court has reiterated the principles

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

“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;

(b) the decision thereon;

8 (2015) 1 SCC 391

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(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 : (2001) 1 SCR 948] , SCC p.  188,  para  15  and Madhukar v. Sangram [(2001)  4 SCC 756] SCC p. 758, para 5.)”

18.   In Shasidhar and Ors. v. Ashwani Uma Mathad and Anr.9, it was held

as under:-  “21. Being the  first  appellate  court,  it  was,  therefore,  the duty of the High Court to decide the first appeal keeping in view the scope and powers conferred on it under Section 96 read with Order 41 Rule 31 of the Code mentioned above. It was unfortunately not  done,  thereby,  causing prejudice to the  appellants  whose valuable  right  to  prosecute  the  first appeal on facts and law was adversely affected which, in turn, deprived them of a hearing in the appeal in accordance with law.”

19. It is clear from the above provisions and the decisions of this Court that

the judgment of the first appellate court has to set out points for determination,

record the  decision  thereon and give  its  own reasons.   Even when the first

appellate court affirms the judgment of the trial court, it is required to comply 9 (2015) 11 SCC 269

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with  the  requirement  of  Order  XLI  Rule  31  and  non-observance  of  this

requirement leads to infirmity in the judgment of the first appellate court.  No

doubt,  when the  appellate  court  agrees  with  the  views  of  the  trial  court  on

evidence, it need not restate effect of evidence or reiterate reasons given by trial

court. Expression of a general agreement with the reasons given by the trial

court would ordinarily suffice.

20.     Keeping in mind the above principles, let us examine the present case.  As

stated above, the issue relating to readiness and willingness of the plaintiff to

perform his part of the contract and issue relating to limitation were held against

the plaintiff and the suit was accordingly dismissed.  The appeal before the High

Court  involved  both  disputed  questions  of  law  and  fact.   The  High  Court

without  examination  of  any  of  these  aspects  has  dismissed  the  appeal  by  a

cryptic order.  The court below has neither reappreciated the evidence of the

parties, nor it has passed a reasoned order.  The High Court has failed to follow

the provisions of Order XLI Rule 31 of the CPC while deciding the appeal.  Mr.

Bhat  has  argued that  the suit  was  well  within time under  Article  54 of  the

Schedule to the Limitation Act.  Even this question has not been examined in its

proper perspective.

21.     In the result, the appeal succeeds and is accordingly allowed in part.  The

judgment  and  decree  of  the  High  Court  in  RFA No.1731  of  2006  dated

09.02.2012, is set aside and the matter is remanded to the High Court for fresh

disposal in accordance with law.

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22.     All the contentions of the parties are left open.  There will be no order as

to costs.

  …………………………J.    (S. ABDUL NAZEER)

                                                     .…………………………J.   (SANJIV KHANNA)

New Delhi; February 12, 2020.

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