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2001 DIGILAW 476 (MP)

Banshidhar v. Dayashankar

2001-07-06

A.M.SAPRE, J.G.CHITRE

body2001
Chitre, J. (Oral) -- 1. The appellant is taking exception to the judgments and decrees passed in First Appeals No. 173 and 174 of 1998 by which the learned Single Judge of this Court dismissed both the appeals by passing the order which needs to be quoted for the purpose of better unfolding of the matter: "Ku. Jyoti Yewatikar, counsel for the appellant. Shri Sharma, Counsel for the respondent. After hearing the learned counsel for the parties, the appeal is dismissed under Order 41 Rule 11(4) of Civil Procedure Code." 2. We need not go to the facts of the appeal because we are dealing with the first important point of law which has been agitated between the parties very keenly in a keen context and according to us that goes to the root of the matter and if there is an adjudication of the said controversial point, it would resolve not only the difficulties arising out of these two LPAs, but would be a guideline for other LPAs also travelling on the same ground and on the same challenge put to the judgment and decree. In view of that, both these LP As are being decided finally with the concurrence of the counsel appearing for the parties by this common judgment and order. 3. Shri V.M. Rege, counsel appearing for the appellant in both the appeals, submitted that the Single Bench of this High Court being the last Court of facts is obliged to pass the judgment and order giving good cogent reasoning for the purpose of justifying the findings to be recorded by it and failure in doing it results in miscarriage of justice and frustrates the cause of appellants. He submitted that in view of the correct reading of Order 41 Rule 11 (4) of the Code of Civil Procedure, 1973 (hereinafter referred to as the Code) and understanding the spirit behind it, both the LP As deserves to be allowed and the judgments and the decrees assailed need to be setaside. While substantiating his submissions on this point, he made reference to Clause 10 of the Letters Patent by which the Nagpur High Court was created He submitted further that though Letters Patent is an intra-Court appeal, that does not mean that this Court is without any jurisdiction and power to have the reappraisal of the facts and the resultant controversy involved. He submitted that in view of that also, the impugned judgment and decree needs to be setaside and the appeals need to be allowed. In the alternative, he submitted that if this Court is pleased to do so, the matter can be remanded to the learned Single Bench for the purpose of hearing it on merit and for requesting the first appellate Court to pass a judgment and decree after taking into consideration entire facts, legal principle applicable to the controversy involved and appraisal of oral documentary evidence and then record its reasoned finding on all issues so framed. 4. On this point, Shri Sharma submitted that the provisions of Order' 41 Rule 11 (4) of the Code are not applicable to the High Court and, therefore, the High Court is not expected to provide elaborate reasoning for the purpose of justifying its conclusion and resulting judgment and decree passed by it. He submitted that the objections raised on behalf of the appellants need to be dismissed and the LP As need to be heard on merit completely and fully. 5. We find it necessary to deal with this first aspect and, therefore, it is being adjudicated fully for the purpose of resolving the controversy and putting the debate to rest. 6. In view of the submissions it is necessary to quote provisions of Order 41 Rule 11 of the Code as hereunder: ORDER XLI APPEALS FROM ORIGINAL DECREES 11. Power to dismiss appeal without sending notice to lower Court. (1). ...................... (2)....................... (3)....................... (4) Where an appellate Court, not being the High Court, dismisses an appeal under sub-rule(1), it shall deliver a judgment, recording in brief its grounds for doing so, and a decree shall be drawn up in accordance with the judgment. 7. Sub-rule (4) of Rule 11 provides that where an appellate Court, not being the High Court, dismisses and appeal under sub-rule (1), it shall deliver a judgment, recording in brief its grounds in doing so, and a decree shall be drawn up in accordance with the judgment. 8. At this Juncture, it is necessary to quote clause 10 of the Letters Patent by which Nagpur High Court was created and the same was being inherited by this High Court: 10. Appeal to the High Court from Judges of the Courts. 8. At this Juncture, it is necessary to quote clause 10 of the Letters Patent by which Nagpur High Court was created and the same was being inherited by this High Court: 10. Appeal to the High Court from Judges of the Courts. -- And we do further ordain that an appeal shall lie to the said High Court of Judicature at Nagpur from the judgment not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of the appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction and not being a sentence or order passed or made in the exercise of the powers of superintendence under the provision of section one hundred and seven of the Government of India Act, or in the exercise of Criminal jurisdiction of one Judge of the said High Court or one Judge of any Division Court, pursuant to section one hundred and eight of the Government of India Act, and that notwithstanding anything herein before provided, an appeal shall lie to the said High Court from a Judgment of one Judge of the said High Court or one' Judge of any Division Court pursuant to section one hundred and eight of the Government of India Act, made in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, where the Judge who passed the judgment declares that the case is a fit one for appeal; but that the right of appeal from other judgment of Judge of the said High Court or of such Division Court shall be to Us, Our Heirs and Successors in Our or Their Privy Council, as hereinafter provided." 9. A question often arises whether such short order is permissible to be passed by learned Single Bench of the High Court while deciding the first appeal filed under section 96 of C.P. Code and whether being faced with a challenge to such a judgment and decree when a Division Court of tile High Court while deciding the LP A should go for reappraisal of the facts and the law and decide the appeal by itself or if it finds fit whether it should remand the matter to the learned Single Bench who had decided the said first appeal by making a request in that context for giving elaborate reasoning and recording the findings categorically, independently and issue-wise, both on facts and law. In view of that we are deciding this question in the light of views expressed by different High Courts as well as by the Supreme Court. 10. Firstly, it is necessary to mention as to what a Single Bench should do while deciding the first appeal and for that we quote the observations of Justice Shri V.R. Krishna Iyer (as his Lordship then was) from the Single Bench of Kerala High Court in the matter of Kurian Chacko v. Varkey Quseph; reported in AIR 1969 Kerala 316. Justice Krishna Iyer observed in the judgment: "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. No supplementing of appreciation is contemplated at the appellate stage. But, an independent appraisal of the evidence is the duty of the Court at that level. Failure to do that is an abdication of appellate power. It is the appellate Court's function not to find out whether there is perversity in the trial Court's judgment but whether it is wrong. There is very wide difference between a wrong conclusion and a perverse conclusion. Failure to do that is an abdication of appellate power. It is the appellate Court's function not to find out whether there is perversity in the trial Court's judgment but whether it is wrong. There is very wide difference between a wrong conclusion and a perverse conclusion. A restricted revisional jurisdiction may be invoked under certain statutes only where there is perversity in the findings but the wider appellate jurisdiction conferred under section 96 of the Civil P.C. demands a little more effort on the part of the appellate Court in going into the evidence to come to its own conclusion and reversing the trial Courts decision if it is found to be wrong." On many occasions, star arguments are being put for the purpose of justifying the order passed in revision or in other such similar matters that the Court has exercised the jurisdiction rightly and, therefore, no interference is called for or is permissible." 11. At this juncture, it is necessary in this context to quote provisions of section 96 of the Code for proper reference. Section 96. Appeal from original decree,: (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court. (2) An appeal may lie from all original decree passed ex parte. (3) No appeal shall lie from a decree passed by the Court with the consent of parties. (4) No appeal shall lie, except on a question of law; from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed three thousand rupees" 11. In this context, it is necessary to mention the provisions of section 107 of the Code also. It deals with the powers of the appellate Court: 107 "Powers of Appellate Court. (1) Subject to such conditions and limitations as may be prescribed, an appellate Court shall have power – (a) to determine a case finally; (b) to remand a case; (c) to frame issues and refer them for trial; (d) to take additional evidence or to require such evidence. to be taken. (1) Subject to such conditions and limitations as may be prescribed, an appellate Court shall have power – (a) to determine a case finally; (b) to remand a case; (c) to frame issues and refer them for trial; (d) to take additional evidence or to require such evidence. to be taken. (2) Subject as aforesaid, the appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein. 12. This High Court has inherited• the jurisdiction, authority and powers from Nagpur High Court constituted by virtue of Letters Patent. It is necessary to quote relevant judgments of Nagpur High Court in context with the subject with which we are dealing in this appeal. In the matter of Madhukar Trimbaklal v. Shri Sati Godawari Upasani Maharaj of Sakori and others; reported in AIR 1940 Nagpur 39, the Full Bench of Nagpur High Court held that the right of appeal from a decree of a Single Judge to the High Court is not governed by S. 96 or S.100 or S. 104, Civil P.C. but by Cl. 10 of the Letters Patent. The Civil Procedure Code makes no provision for an appeal within the High Court that is to say from a Single Judge of the High Court. It is necessary to mention that those observations were passed by the Full Bench of Nagpur High Court when the Full Bench was deciding other issue namely one which was revolving around the leave to file an appeal under the Letters Patent. It observed further while dealing that appeal that the leave to file an appeal under the Letters Patent is necessary only for an appeal from a Judgment passed by a Single Judge in the exercise of his appellate powers in second appeal but not for those which are passed by him in the exercise of his original or first appellate jurisdiction. Therefore, in that context those observations will have to be read and this Court can proceed further in its discussion to the observations made in some other cases which are being quoted for the reference. 13. In the matter of National Sewing Thread Co. Ltd. Chidambaram v. James Chadwick and Bros. Therefore, in that context those observations will have to be read and this Court can proceed further in its discussion to the observations made in some other cases which are being quoted for the reference. 13. In the matter of National Sewing Thread Co. Ltd. Chidambaram v. James Chadwick and Bros. Ltd.; reported in AIR 1953 SC 357 , Supreme Court held that "Ordinarily after an appeal reaches the High Court, it has to be determined according to the rules of practice and procedure of that Court and in accordance with the provisions of the Charter under which that Court is constituted and which confers on it power in respect to the method and manner of exercising that jurisdiction. Thus, S. 76 Trade Marks Act, confers a right of appeal to the High Court and says nothing more about it. That being so, the High Court being seized as such of the appellate jurisdiction conferred by S. 76, it has to exercise that jurisdiction in the same manner as it exercises its other appellate jurisdiction and when such jurisdiction is exercised by a Single judge, his judgment becomes subject to appeal under Cl. 15 of the Letters Patent, there being nothing to the contrary in the Trade Marks Act." (emphasis supplied) Though that was a matter which was revolving around the provisions of section 76 of the Trade Marks Act, the observations of the Supreme Court can be relied on for the purpose of adjudicating the controversy which is before us by the principle of ejusdem generis. It is important to note that Supreme Court has said in that matter that such power of appellate Court is to be used keeping in view of the practice prevalent in the concerned High Court. This is being specifically mentioned because this Court would be quoting the judgment of the Nagpur High Court dealing with the subject but later on with discussion. 14. In this context it is necessary to quote the observations of the Supreme Court in the matter of Smt. Asha Devi v. Kukhi Sao and another; reported in AIR 1974 SC 2048 . While dealing with the jurisdictional authority and power conferred on the High Court by Cl. 14. In this context it is necessary to quote the observations of the Supreme Court in the matter of Smt. Asha Devi v. Kukhi Sao and another; reported in AIR 1974 SC 2048 . While dealing with the jurisdictional authority and power conferred on the High Court by Cl. 10 of Letters Patent, in context with an appeal connected with provisions of section 100 of the Code, the Supreme Court observed: "The power of a Division Bench hearing a Letters Patent appeal under Cl. 10 from the judgment of a Single Judge in First appeal is not limited only to a question of law under section 100. Civil P.C. but it has the. same power which the Single Judge has as a first Appellate Court in respect of both questions 'of fact and of law. The limitation on the power of .the Court imposed by Ss. 100 and 101, Civil P.C. cannot be made applicable to an Appellate Court hearing a Letters Patent Appeal for the simple reason that Single Judge of the High Court is not a Court subordinate to the High Court." (emphasis supplied). It is pertinent to note that while dealing with the point revolving around the provisions of section 100 of the Code, the Supreme Court held that the power of the Division Bench hearing the appeal in view of Clause 10 of the Letters Patent for adjudicating over the judgment and decree passed by the Single Bench is not limited but the powers are broad enough to allow the Division Bench to have a correct adjudication of the matter. According to us, it permits the Division Bench to exercise the wider powers for the purpose of keeping the flow of administration of justice unimpeded, undented and unpolluted. 15. When a Single Bench is hearing the first appeal, the litigant has the opportunity of criticising the evidence adduced by the parties in the trial. It can point out reasonably and in a broad spectrum as to how the trial Judge has committed the error of appreciation of evidence. It can demonstrate that the trial Judge committed the error of appreciation in using the improper scale and committed a mistake or gross-mistake in appreciating it in one way or other way, it can demonstrate that the findings reached by the trial Court in context with are either erroneous or perverse. It can demonstrate that the trial Judge committed the error of appreciation in using the improper scale and committed a mistake or gross-mistake in appreciating it in one way or other way, it can demonstrate that the findings reached by the trial Court in context with are either erroneous or perverse. The parties can have the opportunity of putting a reasonable and permissible criticism on the strength of the judgment and decree for the purpose of assailing it. It is the first but higher forum available to the party for the purpose of putting all points before the Court of Single Bench for the purpose of getting reappraisal of the evidence in context with the facts embedded in the evidence and surfaced in view of the averments made in pleading. Therefore, it is expected of a Single Bench that it should point out the submissions advanced, objections levelled, criticism made, category-wise and should formulate as soon as possible, the points of determination which would be revolving around every question brought in controversy by the litigants. That would indicate a process of adjudication as expected by the administration of justice. The justice is not to be done but it is to be shown to have done. Therefore, the conclusion reached by the Single Bench should reflect the process which laid it to formulate its own conclusion which would be the findings recorded by it in view of the submissions advanced before it either to challenge the judgment and decree assailed or supported. That would give the opportunity of understanding the arguments advanced, the points debated and the points adjudicated. It has been submitted by Shri Rege counsel appearing for the appellant that he was finding a difficulty to demonstrate the strength of the case in favour of the appellant only on account of non-mentioning of the point-wise submissions advanced and the point-wise adjudication made by the Single Bench. Therefore, the question arose before us whether we should go for deciding the appeal by ourselves or should follow the process of remanding the matter to the learned Single Bench which decided the first appeals. 16. Therefore, the question arose before us whether we should go for deciding the appeal by ourselves or should follow the process of remanding the matter to the learned Single Bench which decided the first appeals. 16. In the matter of Balai Chandra Hazra v. Shewdhari Jadav; reported in AIR 1978 SC 1062 : the Supreme Court held that the Court hearing the second appeal after granting amendment could not take over the function of the trial Court or the first appellate Court and undertake appreciation of evidence and record findings of facts. That is not the function envisaged by the Code of the Court hearing second appeal under S. 100. This becomes crystal clear from the provision contained in section 103 which defines the power of the High Court to determine a question of fact while hearing second appeal. But this power of the Court is limited to evidence on record which again is sufficient to determine an issue of fact necessary for disposal of the appeal and which has not been determined by the lower appellate Court or which has been wrongly determined by such Court. When pleadings are amended at the stage of the appeal under Cl. 15 of the Letters Patent and fresh allegations of facts are thus introduced in the controversy which necessitate additional evidence being permitted, it would not be open to the Court to proceed to record evidence and to appreciate the evidence and record findings of fact, a function which even ordinarily is not undertaken by the High Court hearing the second appeal, much less can it be done while hearing an appeal under Cl. 15 of the Letters Patent. When on account of a subsequent change in law, amendment of the pleadings is granted which raises disputed questions of fact, the situation would not be one governed by 0.41, R. 27. Nor would the situation be one which could be covered under the expression "other substantial cause". 17. The Supreme Court further observed "It would, therefore, appear that when a Bench of a High Court is hearing an appeal preferred upon a certificate granted under Cl. Nor would the situation be one which could be covered under the expression "other substantial cause". 17. The Supreme Court further observed "It would, therefore, appear that when a Bench of a High Court is hearing an appeal preferred upon a certificate granted under Cl. 15 of the Letters Patent by a Single Judge of the High Court who by his judgment has disposed of the second appeal, the appellate bench would be subject to the limitation on its power and jurisdiction to appreciate or reappreciate evidence and to record findings of fact which were never raised before the trial Court or the first appellate Court as the pleadings were permitted to be amended by it and the question as raised for the first time before it, to the same extent as the High Court hearing second appeal with constraints of Ss. 100 and 103 of the Code. Further the fact that a party did not object to the appellate Bench examining witnesses and recording finding of facts on. appreciation of evidence cannot estop him from raising the point in Supreme Court since the Court lacked inherent jurisdiction and no amount of consent could. confer jurisdiction. Considerable prejudice was caused to the appellant by the procedure followed by the Court and the Supreme Court will be amply justified interfering with the same. The remand, therefore, is inevitable." 18. Though Shri Shanna, counsel appearing for the respondent, made a prayer to this Court to decide the appeals on merit by reappraisal 'of the evidence, we do not wish to do so. Because as indicated by the observations of the Supreme Court quoted supra and as a rule of prudence, it is always desirable to afford the opportunity to the litigants to agitate the points before the possible lower ladder. As a matter of prudence, keeping in view the arrears of the pending litigation, this Court has to in form itself of the reality of the present affairs. Therefore, this Court will have to think whether this matter is to be remanded back to the trial Court and to ask the litigant to go again there right from the bottom ladder of the staircase. On account of the short order which has been passed by the Single Bench, this Court is at loss to understand as to which points were agitated before it ? On account of the short order which has been passed by the Single Bench, this Court is at loss to understand as to which points were agitated before it ? If a party agitates some points, the adversary gets a vested right in contending that those points were not agitated. We are of the opinion that no party should be put to prejudice. Therefore, we do not come to a conclusion that we should decide these two appeals on merit as if they are being decided by the Single Bench dealing with first appeals. According to us that would a rob off either of the party from agitating those points before the Single Judge and putting a reiterated challenge to it in the letters patent appeal arising out of it before a Division Bench. The Justice is to be administered to its last word and to its highest tone. Therefore, we dismiss the submission advanced by Shri Sharma counsel for the respondent praying us to decide it on merits as if this Court is deciding these two appeals as first appeals. 19. Therefore, we come to the conclusion that though it is an intra-Court appeal but in view of the jurisdictional authority and power conferred on us by Cl. 10 of the Letters Patent, this Court is empowered to pass a judgment and order as we are doing by the present one dealing with an exception put to the judgment and decree passed by the Single Bench. We come to the conclusion that provisions of O. 41 and O. 42 of the Code do apply to the present matters and do apply to all Letters Patent appeals which are being heard by Division Court of this Court and the Division Court of this Court is having jurisdiction, authority and power to apply the provisions of the Code while deciding the Letters Patent appeals rule-wise, sub-rule-wise and exercising the inherent powers of the Court as invisaged by the provisions of section 151 of the Code. It need not be meant being restricted or fettered by the various objections raised by the parties or counsel appearing for them indicating the process of eclipse to its powers. We declare that the Division Court is entitled to decide all facets of the matter arising out of the judgment, order and decree passed by the Single Bench dealing in first appeal. We declare that the Division Court is entitled to decide all facets of the matter arising out of the judgment, order and decree passed by the Single Bench dealing in first appeal. We clarify that the approach, attitude and the angle would be different while dealing with the writs because in that context Art. 226 of the Constitution of India comes in play. 20. We are amply supported by the judgments of this Court revolving around the similar points in the matter of Smt. Satyabhamadevi Choubey v. Ramkishore Pandey; reported in 1975 JLJ 57 = AIR 1975 M.P. 115 ; the Division Court of this Court held that Order 41 applies to Letters Patent appeals and in appeals from the decisions of a Single Judge in original matters or in first appeals which lie to the High Court as of right under Cl. 10. Cross-objection can be filed under R. 22 as of right. "We are also supported by another judgment of the Division Bench of this Court in the matter of Jawaharlal Nehru Krishi Vishwavidyalaya Jabalpur and another v. Satyaveer Sharma; reported in 1996 JLJ 29 = 1996 LAB.I.C. 803; wherein the Division Bench of this Court held that the Division Bench while upholding decision of single Bench can remand the matter to Single Bench for its decision on merits. We point out that this is the practice prevalent in this Court and as indicated by the judgment of the Supreme Court quoted supra, the practice prevalent in the Court is to be followed while dealing with such matters and, therefore, we find ourselves satisfactorily supported by the two judgments of the Division Bench of this Court which is prevalent practice in this Court. 21. We are of the opinion that whenever the matter is remanded before the Single Bench the Division Bench should always remember that it is not a subordinate Court to it and therefore, appropriate language be used while remanding the matter to the Single Bench which show that it is being requested. After all the judicial decorum has to be maintained 22. After all the judicial decorum has to be maintained 22. Therefore, we do not go further to adjudicate over the other points touching the merits of the matter before us because we are remanding the matter to the Single Bench which decided those two first appeals with the request to hear the parties appropriately by affording them the opportunity of being heard on all relevant points of facts and law. We request the Single Bench to record the findings category-wise which would enable the litigants to put better submissions if the occasion arises and if any of the parties feel to have been aggrieved. 23. Thus, consequently the judgments and decrees passed by the learned Single Bench in first appeals Nos. 173 and 174 of 1998 stand set-aside. Those appeals are hereby remanded to the learned Single Bench with a request to decide those appeals on merits after affording the parties to advance their submissions on all relevant facets of facts and law. No order as to cost keeping in view the facts and circumstances of the case.