Short Note : 1. In the suit instituted by the revision petitioners, April 2, 1968, was fixed for evidence of both the parties. On that date, the defendant's counsel applied for adjournment on the ground that Shantibai and Ganpatrao were not able to attend the Court because of illness. The trial Court rejected the application for adjournment and at that stage counsel for the defendants reported no instructions and retired. The trial Court forthwith recorded evidence on the plaintiffs' witnesses including the plaintiff himself and closed the case. On April 6, 1968 the trial Court passed a decree in favour of the plaintiffs against the defendants. The defendants made an application under Order 9, rule 13, CPC for setting aside the ex parte decree. The trial Court rejected it. The defendants appealed. The learned Additional District Judge, allowed the appeal and set aside the ex parte decree. 2. Held : A preliminary question was raised by the learned counsel for the petitioners that the application under Order 9, rule 13 CPC was not competent inasmuch as the defendant's counsel appeared on April 2, 1968 when the case was called on for hearing. The ex parte decree was therefore not under Order 17, rule 2 CPC but it was under Order 7, rule 3 of the Code. In view of this Court, the opinion of the Full Bench reported in Rama Rao v. Shantibai 1977 JLJ 147 the preliminary question must be decided against the petitioners. 3. On perusal of the order passed by the trial Court, this Court finds that it gave the reasons elaborately why it did not believe the defendant applicant's evidence. But what the learned Additional District Judge did was just to indicate briefly the points deposed to by Shantibai, Dr. Ramkrishan and Ganpat Rao and also by Ram Rao. However, it does not at all appear from its order that it considered the reasons given by the trial Court for disbelieving the applicant's evidence. It does not appear from the appellate order whether the learned Additional District Judge even perused the order of the trial Court at all or not. The question that arises is whether the appellate Court can in the matter of appreciating oral evidence completely shut its eyes as to what, the trial Court said and arrive at a contrary finding.
It does not appear from the appellate order whether the learned Additional District Judge even perused the order of the trial Court at all or not. The question that arises is whether the appellate Court can in the matter of appreciating oral evidence completely shut its eyes as to what, the trial Court said and arrive at a contrary finding. It is a proposition well settled that the appellate Court is bound to consider the reasons on which the trial Court arrived at the findings of fact. And in case, after appreciating the oral evidence produced by the parties, the appellate Court comes to a different conclusion though bearing in mind that it has not enjoyed the opportunity of seeing and hearing the witnesses, it certainly record its own findings holding that those reached by the trial Court were erroneous. In such a case, three things must appear from the judgment of the appellate Court : (i) that it applied its mind to the reasons given by the trial Court, (ii) that it was present to its mind that the trial Court had the advantage of seeing and hearing the witnesses, and (iii) that the appellate Court must give cogent reasons for disagreeing with the trial Court. If this is not done, it must be said that the order of the appellate Court is contrary to law. Sarju Prasad v. Jwaleshwari, AIR 1951 SC 120 , Radhaprasad v. Gajadhar Singh, AIR 1960 SC 115 , M. C. Mc. Donald v. Fred Litimar, AIR 1929 PC 15 at page 18, Watt v. Thomas 1947 AC 484 (486); Veeraswami Talleori Narayya 5 IA 252= AIR 1949 PC 32 , T.C. Gopalan v. Commissioner of Religious and Charitable Endowments AIR 1972 SC 1716 , Tulsi Ram v. Shyamlal 1960 JLJ 348 , Mangamma v. Paidayya AIR 1941 Mad. 393 , Keluni Dei v. Kanhai Sahu AIR 1972 Orissa 28, Sarjug Rai v. Maheshwari Devi, AIR 1975 Patna 192, relied on. 4. The learned counsel for the plaintiffs strenuously contended that this Court has no jurisdiction to interfere in revision however erroneous a finding of fact may be and in the present case, since the appellate Court has reached a finding of fact, even though it be grossly erroneous this Court cannot interfere.
4. The learned counsel for the plaintiffs strenuously contended that this Court has no jurisdiction to interfere in revision however erroneous a finding of fact may be and in the present case, since the appellate Court has reached a finding of fact, even though it be grossly erroneous this Court cannot interfere. It is one thing to say that this Court cannot re-appreciate the evidence and substitute its findings of fact, while exercising revisional jurisdiction but it is quite another to say that this Court has no jurisdiction to interfere in revision even when a subordinate Court has acted in contravention of the law. Under section 115 of the Code of Civil Procedure, this Court has jurisdiction to set aside an order of subordinate Court, it exercised its jurisdiction illegally or with material irregularity. These words do not refer to the decision arrived at by the subordinate Court but they refer to the manner in which it is reached. This Court cannot interfere in revision merely because this Court would have felt inclined to arrive at a different conclusion, if it had dealt with the matter initially. In the present case, this Court finds that the manner in which the learned Additional District Judge reached his conclusion was wholly erroneous inasmuch as he completely ignored the reasoning contained in the order of the trial Court, which it reversed. D. L. F. Housing etc. Co. v. Sarup Singh, AIR 1971 SC 2324 relied on. Ratilal v. Ranchhodbhai, AIR 1966 SC 439 , Pandurang v. Maruti AIR 1966 SC 153 , M.L. Seth v. R.P. Kapur, AIR 1972 SC 2379 , Hiragawri v. A.K. Mamadji, AIR 1973 SC 1336 , Shaik Jaffar v. Mohd. Pasha AIR 1975 SC 794 , M. L. and B. Corporation v. Bhutnath AIR 1964 SC 1336 . Abbasbhai Gulamnabi, AIR 1964 SC 1341 , R.P. Mehta v. I.A. Seth, AIR 1965 SC 1976 referred to. Case remanded to lower appellate Court. Revision allowed.