Dilip s/o Vishnuji Kolte v. Dattatraya s/o Babuji Peche
2008-07-22
VASANTI A.NAIK
body2008
DigiLaw.ai
ORAL JUDGMENT : 1. Since common questions arise for consideration in these Second Appeals, they are heard together and are decided by this common judgment. 2. The Second Appeals were admitted by the orders dated 13th April, 1999, but no substantial question of law was framed while admitting the same. 3. By the Second Appeals, the appellants challenge the judgment passed by the 3rd Joint Civil Judge Senior Division, Amravati, in Special Civil Suit No. 57/1980 on 10.12.1987 and that of the Joint District Judge, Amravati dated 10.2.1997 in Regular Civil Appeal No. 17/1998. By the judgment and decree passed by the trial Court, the suit of the plaintiffs was decreed and permanent injunction was granted against the defendants from publishing, printing and circulating Leela Charitra in any form with the objectionable contents of the mischievous statements, incidents and episodes. The defendant Nos. 1 and 2 were directed to recall the books which were already circulated and stop further circulation of the book Leela Charitra. The plaintiffs were held to be entitled to receive damages of Rs. 25,000/- from the defendant no.3. Since the judgment passed by the trial Court was confirmed in appeal by the first Appellate Court, these Second Appeals have been preferred. 4. Few facts giving rise to the controversy are stated thus: Plaintiffs claimed to be the ardent advocates of Mahanubhav panth and had pleaded that they had full faith in the principles of the sect and held those principles in high esteem. According to the plaintiffs, Chakradharswami was the founder of Mahanubhav sect and great literary material is scattered in various spics in different scripts about the life and philosophy of Shri Chakradharswami. Though Leela Charitra was written and completed by Shri Mahim Bhatt in or about the year 1196, the manuscript was lost in the invasion by alien rulers. In about 600 to 650 years, there came into existence 40 to 45 manuscripts and those were preserved and placed in various Maths, Ashrams and temples of Mahanubhav sect scattered in various parts of the country. It is pleaded by the plaintiffs that the compiling and editing of Leela charitra in the present days could be done only after referring to the various scriptures, writings and with the aid of the persons who are acquainted with various scripts which enumerate the details. 5.
It is pleaded by the plaintiffs that the compiling and editing of Leela charitra in the present days could be done only after referring to the various scriptures, writings and with the aid of the persons who are acquainted with various scripts which enumerate the details. 5. It was pleaded by the plaintiffs that the defendant no.2, Maharashtra Rajya Sahitya Sanskritik Mandal is an organ of defendant no.1 - the State of Maharashtra. It is pleaded that the defendant no.1 entrusted the work of editing Leela Charitra to the defendant no.3 The Leela Chartira was released on or about 22.11.1978 and the said edition of Leela Charitra had a number of glaring omissions, wrong statements, misleading references which injured the reputation of the great saints of Mahanubhav sect. According to the plaintiffs, the real image of the saints had been placed before the readers and followers in a perspective which was contrary to the fundamental and basic reference books or ancient literature. It was pleaded that the defendant no.3 had no personal experience about the ways of life and values of Mahanubhav sect, as they were preached and practiced in actual life. The plaintiffs, in the plaint schedule gave the instances of glaring omissions, wrong statements and the misleading references as contained in the edition of Leela Charitra brought out by the defendants. 6. Plaintiffs, therefore, sought a mandatory injunction directing the defendants to take notice of the glaring omissions, wrong statements, misleading references and injurious submissions contained in the edition of Leela Charitra released by the defendants on or about the month of September/ November 1978. The plaintiffs also sought a prohibitory injunction against the defendants restraining them from further publishing, re-printing, selling and circulating Leela Charitra which was not authentic, recognised and in conformity with the great epics and literature of Mahanubhav sect. The plaintiffs also sought damages to the tune of Rs. 25,000/- from the defendants, along with interest at the rate of 12 per cent per annum, from the date of institution of the suit till its realization. 7. Defendant Nos. 1 and 2 denied the case of the plaintiffs and pleaded that they had entrusted the work of editing of Leela Charitra to defendant no.3. It was denied that the publication and circulation of Leela Charitra had hurt the feelings of the plaintiffs and staunch followers of Mahanubhav sect. Defendant nos.
7. Defendant Nos. 1 and 2 denied the case of the plaintiffs and pleaded that they had entrusted the work of editing of Leela Charitra to defendant no.3. It was denied that the publication and circulation of Leela Charitra had hurt the feelings of the plaintiffs and staunch followers of Mahanubhav sect. Defendant nos. 1 and 2 pleaded about the achievements of the defendant no.3 and further pointed out that the work of preparing the edition was entrusted to Respondent No.3 as he was a veteran scholar and a former Vice-Chancellor of the Nagpur University. It was further pleaded that he was an authority on Mahanubhav philosophy and literature. It was denied by the defendant nos. 1 and 2 that the cumulative effect of the publication in question, contained glaring omissions, wrong statements, misleading references and observations contrary to the basic fundamental literature. It was further denied that the religious feelings and sentiments of the plaintiffs were hurt on account of publication and circulation of the Leela Charitra. The defendants sought for the dismissal of the suit. 8. Defendant No. 3 filed his written statement and denied the claim of the plaintiffs. He denied that Leela Charitra was not authentic and did not properly reflect the moral values, philosophy and principles of Mahanubhav sect. Defendant No.3, further, denied that the book had any omissions, wrong statements and misleading references and they were injurious to the reputation of the great saints and sages of Mahanubhav sect. It was pleaded that the defendant visited many Ashrams and Maths in Riddhpur, Aurangabad, Samvatsar, Bhusawal, Hyderabad etc. and secured many manuscripts of different versions of Leela Charitra from the Mahants and pundits during the process of editing the Leela Charitra. He also consulted and deliberated with the scholars of Mahanubhav panth mentioned in the written statement. It was, then, pleaded that there were various versions of Leela Charitra in the manuscripts and there was difference of opinion and diversion of material in the manuscripts. According to defendant no.3 some of the manuscripts omitted certain instances in the life of Shri Chakradharswami while others included them. Under these circumstances, it was necessary for the defendant no.3 to screen and sift the material with an objective mind and then reject some material and accept the other. It was pleaded that there was nothing in the book which was not found in Mahanubhav manuscript.
Under these circumstances, it was necessary for the defendant no.3 to screen and sift the material with an objective mind and then reject some material and accept the other. It was pleaded that there was nothing in the book which was not found in Mahanubhav manuscript. It was then pleaded that though the book was circulated for a period of two years, nothing untoward happened which pointed out that the book had any evil or injurious effect on the minds of readers. It was also pleaded by the Defendant No.3 that the plaintiffs were not spokesmen of all the followers of Mahanubhav sect and there existed an all-India body known as 'Akhil Bhartiya Mahanubhav Parishad' since 50- years. It was pleaded by the defendant no.3 that this body had hailed the publication of the edition of Leela Charitra. It was then pleaded by the defendant no.3 that the said edition of 'Leela Charitra' was put in a palanquin in Riddhpur which was the most important religious centre of Mahanubhav sect and was taken in procession from the temple of Gajeshwara where the original book was written to the temple of Shri Govind Prabhu. In the additional statement, it was pleaded by the defendant no.3 that he had the right to select the material and decide upon the authenticity of each 'Leela.' Defendant no.3 pleaded that he held Shri Chakradharswami, his philosophy and teachings in very high esteem. Defendant No.3 also sought for the dismissal of the suit. 9. On the aforesaid pleadings of the parties, the trial Court framed the necessary issues. On an appreciation of the material evidence on record, the trial Court held that the plaintiffs had succeeded in proving that the Leela Charitra had glaring omissions, wrong statements and misleading references which hurt the feelings of the plaintiffs. After having held so, the trial Court granted the relief of mandatory and prohibitory injunction against the defendants and also imposed costs of Rs. 25,000/- on defendant no.3. 10. The judgment passed by the trial Court on 10th Dec. 1997 was challenged by the defendant no.3 in an appeal, which was numbered as Regular Civil Appeal No.17/ 1998. 11.
After having held so, the trial Court granted the relief of mandatory and prohibitory injunction against the defendants and also imposed costs of Rs. 25,000/- on defendant no.3. 10. The judgment passed by the trial Court on 10th Dec. 1997 was challenged by the defendant no.3 in an appeal, which was numbered as Regular Civil Appeal No.17/ 1998. 11. During the pendency of the First Appeal, the appellants in S.A. No.134/ 1999 and 136/1999 had filed applications under the provisions of Order 1 Rule 8 & 8A of the Civil Procedure Code for joining them as party appellants to the appeal. The application filed by the appellants was allowed by the first Appellate Court. It can be seen from the record that the applicants were joined in the memorandum of Regular Civil Appeal No. 17/1998 as appellants but were referred to as intervenors in the judgment dated 16th February, 1999. The applicants - intervenors prayed at the time of hearing of the appeal that the matter be remanded to the trial Court in the interest of justice. It was the case of the applicants/ intervenors that the trial Court had wrongly decided the issues and the Leela Charitra edited by defendant no.3 gave a correct picture of Shri Chakradharswami and the principles of Mahanubhav sect. The first Appellate Court by the judgment dated 16th February, 1999 partly allowed the appeal filed by the defendant no.3 and modified the decree passed by the trial Court to the extent that it directed the defendant no.3 to pay costs to the defendant nos.1 and 2. The first Appellate Court confirmed all the findings recorded by the trial Court. The judgments passed by both the Courts are challenged in the instant appeal. 11. It is submitted on behalf of the appellants by the learned counsel that both the Courts were not justified in holding that the feelings and religious sentiments of the plaintiffs were injured and hurt in view of the publication and circulation of Leela Charitra. It was submitted on behalf of the appellants that the first Appellate Court committed a serious error in not recording a single reason, while confirming the findings of the trial Court. According to the learned counsel for the appellants, the first Appellate Court being a final fact-finding court, was duty-bound to record, at least, a few reasons while affirming the findings recorded by the trial Court.
According to the learned counsel for the appellants, the first Appellate Court being a final fact-finding court, was duty-bound to record, at least, a few reasons while affirming the findings recorded by the trial Court. It was, then, submitted on behalf of the appellants that in view of the provisions of Order 41 Rule 31 of the Civil Procedure Code (hereinafter referred to as the Code. for the purpose of brevity), the judgment of the Appellate Court is vitiated as no reason has been recorded by the first Appellate Court while affirming the findings of the trial Court. It is submitted that there is total non-application of mind and failure to decide the First Appeal. It is submitted on behalf of the appellants that since no reasons are recorded by the first Appellate Court and the judgment does not reveal that the points canvassed on behalf of the parties were considered by the first Appellate Court, it is necessary to remand the matter to the first Appellate Court to decide the first appeal in accordance with law. Learned Counsel for the appellants relied on the decisions reported in 2008 (3) SCC Page 89 and AIR 1943 Privy Council page 24, to substantiate the aforesaid submission. It is submitted on behalf of the appellants that considering the nature of the controversy involved in the present litigation and the public interest involved therein, it would be just and proper that the first Appellate Court, which is the final fact-finding Court, decides the appeal on merits and passes the judgment in view of the provisions of Order 41 Rule 31 of the Code According to the counsel for appellants there is no other alternative in the facts and circumstances of the case but to remand the matter to the first Appellate Court to decide the same on merits in accordance with law. 12. It is submitted by Shri M.G.Bhangde, the learned senior counsel that the judgment passed by the first Appellate Court is not a reversing judgment and is a judgment of affirmation and when the Appellate Court affirms the judgment of the trial Court, it is not necessary to give reasons for the same.
12. It is submitted by Shri M.G.Bhangde, the learned senior counsel that the judgment passed by the first Appellate Court is not a reversing judgment and is a judgment of affirmation and when the Appellate Court affirms the judgment of the trial Court, it is not necessary to give reasons for the same. It is submitted by the learned senior counsel that after recording the submission made on behalf of all the parties, the Appellate Court had in paragraphs 15 and 16 of the judgment observed that the trial Court had after considering the material placed before it, rightly granted permanent injunction in favour of the plaintiffs and against the defendants. According to the learned senior counsel, the observation made by the first Appellate Court clearly shows that the first Appellate Court had applied its mind to the facts of the case and had affirmed the findings of the trial Court. The learned senior counsel, then, submitted that even if this Court comes to a conclusion that the points for determination before the first Appellate Court were not properly considered and were not decided in accordance with law, this Court is also empowered under the provisions of Section 103 of the Code to determine the issues necessary for the disposal of the appeal. The learned senior counsel relied on Section 103 (a) of the Code to submit that this Court can very well exercise its discretion in determining the issues necessary for the disposal of the appeal when they are not determined by the first Appellate Court. According to the learned senior counsel, the evidence on record is sufficient for deciding the issues which have not been decided by the first Appellate Court by recording sufficient reasons. It is submitted on behalf of the respondents that in the facts and circumstances of the case, it would not be proper to remand the matter to the first appellate Court to decide the appeal afresh as this Court can exercise the powers u/s 103 of the Code and decide the issues which were not decided by the first appellate Court, specially because the suit was instituted in the year 1980 and almost 28 years have lapsed since the institution of the suit.
According to learned senior counsel, the order of remand would further delay the matter and hence this Court should exercise its discretion for deciding the issues u/s 103 of the Code. It is submitted on behalf of the respondents that it is not only the time of the litigation that needs to be considered, but it is the type of litigation which also needs to be considered for invoking the powers under section 103. It is submitted on behalf of the respondents that the issue involved in this lis is of public importance and it would not be just and proper to remand the matter to the first Appellate Court for deciding the appeal. The learned senior counsel relied on the judgments reported in AIR 1967 SC 1124 ; 1984(2) SCC page 324 ; 1987 (1) Bom C. R. page 434 ; 2001 (7) SCC Page 494 and 2004 (12) SCC page 368, to substantiate the aforesaid submissions. The learned senior counsel also submitted that the judgment reported in 2008 (3) SCC page 78 and relied on by the counsel for the appellants cannot be made applicable to the facts of this case as in the case before the Hon'ble Supreme Court, the High Court had reversed the findings recorded by the trial Court in First Appeal and had not recorded any reasons for doing so. 13. After considering the submissions made on behalf of the parties and after perusal of the judgments passed by the trial and the first Appellate Court, it appears that the following substantial question of law arises for consideration in this Second Appeal:- . Whether the First Appellate Court is duty-bound to apply its mind to the points raised by the parties and record some reasons even while upholding the judgment of the trial Court?. 14. To answer the aforesaid substantial question of law, it is necessary to peruse the judgments passed by the trial as well as the Appellate Court. In this case, the parties had tendered voluminous evidence on record. The trial Court had minutely considered the evidence tendered by the parties on record and decreed the suit of the plaintiffs. Though there was voluminous evidence on record, the first Appellate Court had not considered a single piece of evidence while affirming the findings of the trial Court.
In this case, the parties had tendered voluminous evidence on record. The trial Court had minutely considered the evidence tendered by the parties on record and decreed the suit of the plaintiffs. Though there was voluminous evidence on record, the first Appellate Court had not considered a single piece of evidence while affirming the findings of the trial Court. The first Appellate Court had also not recorded any reason for affirming the findings of the trial Court. The first Appellate Court had dismissed the appeal of the defendant no.3, to which the other intervenors were joined as appellants, by merely recording the submissions made on behalf of all the parties. No reason was recorded to show as to why the submissions were accepted or rejected. 15. The pleadings of the parties showed that the question and issuers involved in the lis were of great importance to the followers of Mahanubhav sect. The appellants in Second Appeal Nos. 134 and 136 of 1999 were permitted to be joined as party appellants/ intervenors before the first Appellate Court. They had sought for the reversal of the findings recorded by the trial Court. They had also sought a remand of the matter to the trial Court for recording of evidence as they were impleaded as parties at the appellate stage under the provisions of Order 1 Rule 8 & 8A of the Code. It was necessary for the first Appellate Court to consider the submissions made on behalf of the appellants in Second Appeal Nos. 134 and 136 of 1999 on the questions involved in the matter especially in public interest. The first Appellate Court had, however, not considered the submissions made on behalf of appellants/ intervenors. A perusal of the judgment of the first Appellate Court reveals that the first Appellate Court had merely recorded the submissions made on behalf of all the respective parties in paragraphs 8 to 14 of the judgment. In paragraph 15 and 16, the first Appellate Court, without considering any evidence tendered by the parties on record and without adverting its mind to the various submissions made on behalf of the parties, abruptly recorded a finding that the trial Court had rightly granted a permanent injunction in favour of the plaintiffs and against the defendants and that the defendant no.3 had failed to consult the respected Mahants of Mahanubhav Maths before writing .Leela Charitra..
The Court merely observed in paragraph 16 that the defendant no.3 had acted high- handedly in writing the book .Leela Charitra''. Thus, this is a case where the Appellate Court merely jumped to the conclusions without recording any reasons for the same. The judgment does not disclose that the first Appellate Court had applied its mind to the facts of the case and the evidence on record before abruptly drawing the conclusions in paragraphs 15 and 16 of the judgment. A perusal of paragraphs 8 to 14 clearly shows that various questions of facts and law were raised on behalf of the parties before the first Appellate Court but the first Appellate Court had considered none of them. 16. The judgment relied on by the appellants and reported in 2008 (3) SCC page 78 and especially the principles laid down therein, would clearly apply to the facts of the case. It has been observed by the Supreme Court in the aforesaid reported decision that when various contentions and pleas were raised in the First Appeal, the High Court ought to have analysed the factual position in the background of principles of law involved, and then to decide the appeal. The Hon'ble Supreme Court, further, observed that after making detailed reference to the arguments and contentions raised, abrupt conclusions were arrived at by the High Court and that was not a proper way to dispose of the First Appeal. The Hon'ble Supreme Court, therefore, without expressing any opinion on the merits of the case, set aside the judgment passed by the High Court and remitted the matter to the High Court for a fresh consideration on merits, in accordance with law. The principles laid down in the aforesaid reported decision clearly apply to the facts of this case though in the case before the Hon'ble Supreme Court, the High Court, had reversed the findings recorded by the trial Court. The submission made by the learned senior counsel that the principles laid down in the aforesaid decision would apply only in the case of a judgment of reversal and would not apply in a judgment of affirmation is liable to be rejected.
The submission made by the learned senior counsel that the principles laid down in the aforesaid decision would apply only in the case of a judgment of reversal and would not apply in a judgment of affirmation is liable to be rejected. Though the Hon'ble Supreme Court was considering a case where the High Court had reversed the judgment passed by the trial Court, a perusal of the judgment clearly shows that as a general principle, it was laid down that arriving at abrupt conclusions by making a detailed reference to the arguments is not a proper way to dispose of a first appeal. The judgment before the Hon'ble Supreme Court was practically non-reasoned and cryptic. Same is the case here. The judgment passed by the first Appellate Court is practically non-reasoned. It was necessary for the first Appellate Court as a final fact-finding Court to record the reasons before recording the findings on the points for determination as reasons are helpful in disclosing the mind of the Judge. A perusal of the provisions of Order 41 Rule 31 of the Code reveal that it is necessary for the Appellate Court to make a judgment in writing, state the points for determination, the decision thereon, the reasons for the decision and the relief to which the appellant is entitled. It is also useful to make a reference to the observations made by the Hon'ble Supreme Court in the case of Jagtamba Devi vs. Hem Ram and others reported in 2008(2) Scale 180 . In Para 7 of the judgment, by making a reference to the judgments in Breen vs. Amalgamated Engineering Union : 1971(1) All.E.R . 1148 and Alexandar Machinery (Dudley) Ltd. vs. Crabtree 1974 LCR 120, the Court observed thus:- . 7. Even in respect of administrative orders Lord Denning M.R. In Breen v. Amalgamated Engineering Union (1971 (1) All E.R. 1148) observed, The giving of reasons is one of the fundamentals of good administration. In Alexander Machinery Dudley) Ltd. v. Crabtree (1974 LCR 120) it was observed: Failure to give reasons amounts to denial of justice.. Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at. Reasons substitute subjectivity by objectivity.
In Alexander Machinery Dudley) Ltd. v. Crabtree (1974 LCR 120) it was observed: Failure to give reasons amounts to denial of justice.. Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at. Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the inscrutable face of the sphinx, it can, by its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The inscrutable face of a sphinx is ordinarily incongruous with a judicial or quasi-judicial performance.. 17. in the factual background involved in this case, the judgment reported in AIR 1967 SC page 1124 would not be of much assistance to the case of the respondents as in the aforesaid reported decision, the High Court had not entered upon re-appraisal of the evidence but had generally approved all the reasons adduced by the trial Court in support of its conclusion. In that background, the Hon'ble Supreme Court had observed that it is not the duty of the Appellate Court when it agrees with the view of the trial Court, on the evidence, either to re-state the effect of the evidence or to reiterate the reasons given by the trial Court and an expression of the general agreement with reasons given by the Court decision which is under appeal would ordinarily suffice. Thus, according to the Hon'ble Supreme Court, the expression of general agreement with reasons given by the trial Court would ordinarily suffice but, in the instant case, there is no expression of general agreement with reasons given by the trial Court in the judgment passed by the appellate court.
Thus, according to the Hon'ble Supreme Court, the expression of general agreement with reasons given by the trial Court would ordinarily suffice but, in the instant case, there is no expression of general agreement with reasons given by the trial Court in the judgment passed by the appellate court. As stated hereinabove, the principles of law laid down in the judgment reported in 2008 (3) SCC page 78 refers to the duty cast upon the first Appellate Court and it is in that context that the Hon'ble Supreme Court has held in the recent reported decision that merely recording the arguments and contentions and then abruptly arriving at the conclusion is not a proper way to dispose of the First Appeal. Moreover, it is necessary to note that in the instant case, the appellants in Second Appeal Nos.134 and 136 of 1999 were permitted to be joined as party-intervenors to present their opinion in the matter of public interest and the contentions of the intervenors / appellants were not considered by the first Appellate Court. 18. It is observed in the judgment reported in AIR 1975 BOM 278 that the provisions of Order 41 Rule 31 are mandatory. The judgment of the first Appellate Court has to state the points for determination, record the decision thereon by giving its own reasons for the said decision. According to this Court, looking to the plain language of the rule, it cannot be said that failure to comply with this provision is a mere irregularity. Though it was a case where the decree passed by the trial Court was affirmed by the first Appellate Court, it was observed by this Court in the reported decision, that the first Appellate Court cannot run away from his onerous duty of recording the finding of fact and/ or discussing the evidence. Similar view is reiterated in the decision of this Court reported in 1992 (1) Mah.L.R. 131. Though in yet another case reported in 1992 (2) Mah.L.R . 660, this Court was considering the matter under the Hyderabad Rent Act, it was observed by this Court that the District Judge who was acting as a last court of fact was duty bound to consider the questions of facts and give sufficient indication in its judgment that he had applied his mind to the facts and evidence.
660, this Court was considering the matter under the Hyderabad Rent Act, it was observed by this Court that the District Judge who was acting as a last court of fact was duty bound to consider the questions of facts and give sufficient indication in its judgment that he had applied his mind to the facts and evidence. It was further observed that as to whether the Judge had applied its mind could be verified from the judgment and, therefore the judgment must contain something to indicate such an application of mind. It was then recorded in the reported decision that a mere statement that after considering all the facts, circumstances and the evidence, the conclusion is reached, will not be sufficient to hold that the appellate Judge had complied with the provisions of Order 41 Rule 31 of the Code It is observed by this Court in the decision reported in 2003 (1) Mh.L.J 371 that reason is known to be the soul of law. In this case, the judgment rendered by the first Appellate Court does not reveal that the first Appellate Court had applied its mind to the submissions made on behalf of the parties to the Appeal. No reason as contemplated under Order 41 Rule 31 of the Code was recorded. It appears to be a case of total non-application of mind. 19. In this background, it would be necessary to consider as to whether this Court should exercise its discretion in deciding the issues or points which arise for determination before the first Appellate Court by exercising its discretionary power u/s 103 of the Code. Though I have not perused and considered the entire oral and documentary evidence on record, it appears that the record consists of more than two dozen books of literature and more than four dozen items which are published in the newspapers. All these documents are exhibited documents. The record runs into more than 350 exhibits and it would not be fair on the part of this Court to virtually decide the First Appeal which the first Appellate Court has failed to decide in accordance with law. The manner in which the abrupt conclusions are arrived at, clearly shows that there is total failure in deciding the First Appeal.
The manner in which the abrupt conclusions are arrived at, clearly shows that there is total failure in deciding the First Appeal. This is not a case where the first Appellate Court has failed to consider and decide a couple of issues which it ought to have decided but failed to decide. This is a case where extensive submissions on the points of law and facts were made by the counsel for all the parties, but the first Appellate Court had not dealt with any of the submissions of law or facts. Only abrupt conclusions are recorded in paragraph 16 and 17 of the judgment. It would not be proper for this Court to exercise the discretion and decide all the issues of facts and law in a litigation which is of immense importance to the followers of Mahanubhav sect merely because the suit is an old one and the Second Appeal was pending before this Court for long. The judgment reported in 1984 (2) SCC Page 324 is also not of any assistance to the respondents as in the reported decision the Hon'ble Supreme Court had held that the second remand was neither in the interest of the parties nor in the public interest, for the reasons recorded in paragraph 8 of the judgment. In the peculiar facts of that case, the Hon'ble Supreme Court had decided the appeals on merits, instead of remanding the matter to the High Court. Similarly, the decision reported in 1987 (1) BOM C.R. 434 and relied on by the learned counsel for the respondents deals with a case where the first Appellate Court had not recorded a finding on a question relating to the existence of nucleus correctly and, according to the High Court, the finding on the issue was perverse and, therefore, the High Court interfered with the finding in the Second Appeal after re-appreciating the evidence by exercising jurisdiction u/s 103 of the Code. The Court had held that the first Appellate Court had failed to appreciate the evidence and failed to record a judicial finding on one of the issues relating to the existence of nucleus. In the instant case, the Appellate Court has not only failed to record a judicial finding on one of the issues involved in the case but has failed to record a judicial finding on all the issues.
In the instant case, the Appellate Court has not only failed to record a judicial finding on one of the issues involved in the case but has failed to record a judicial finding on all the issues. The findings recorded by the first appellate Court on all the issues were sans reasons and such a judgment cannot be said to be a judgment in the eye of law. Also, in the case reported in 2001 (7) SCC 494 , the High Court had re-appreciated the evidence in a Second Appeal and recorded findings of facts on the issues which had been decided by the first Appellate Court by misreading the provisions of law and by wrongly placing the burden of proof on a particular party. The Hon'ble Supreme Court, therefore, observed in the reported decision that the High Court was well within its jurisdiction in Second Appeal, in recording the findings of facts on such issues as the evidence on record was sufficient. 20. The question before this Court is not whether this Court would be within its jurisdiction in re-appreciating the evidence u/s 103 of the Code, but the question is whether this Court in its discretion should exercise the jurisdiction u/s 103 of the Code. There is voluminous evidence tendered by the parties on record. It is not a case where only one or few of the issues are not decided by the first appellate Court in a judicious manner. This is a case where reasons are totally absent. Sufficiency or insufficiency of the reasons, would be yet another aspect with which this Court is not dealing in the present case, as in this case, the first appellate Court has not recorded a single reason for arriving at the findings. The judgment reported in 2004 (12) SCC 368 and relied on by the learned senior counsel would not persuade this Court to decide the issues involved in the First Appeal as in the reported decision the first Appellate Court had failed to adjudicate upon the core issue as to whether the agreement was one of license or tenancy and the High Court had decided that question at the second Appellate stage by invoking the provisions of Sec. 103 of the Code.
This Court, however, would not like to exercise its discretion for invoking the provisions of Sec. 103 of the Code as the judgment passed by the first appellate court is not a judgment in the eye of law. The first Appellate Court had not decided the appeal as required under the provisions of O.41 R.31 of the Code. It could be said that this is a case of failure to decide the appeal. This is a deserving case for remand. In the fitness of things and in the interest of justice it is necessary to exercise the power to remand rather than deciding the entire First Appeal at the second appellate stage. This Court respectfully follows the latest judgment of the Hon'ble Supreme Court reported in 2008 (3) SCC page 78 to remit the matter to the first Appellate Court for fresh consideration of the appeal on merits and in accordance with law. 21. For the reasons aforesaid, the substantial question of law involved in this Second Appeal is answered in the affirmative and in favour of appellants. The first Appellate Court is duty-bound to apply its mind to the points raised by the parties and record some reasons even while upholding the judgment of the trial Court. 22. Appeals are partly allowed. The judgment passed by the Joint District Judge, Amravati on 16th February 1999 in Regular Civil Appeal No. 17/1998 is hereby set aside. The matter is remanded to the first appellate Court to decide the same afresh in accordance with law. Both the parties undertake to appear before the first appellate Court on 26th of August 2008, so that individual notices to the parties, by the first appellate Court, could be dispensed with. Since the matter is an old one, the first appellate Court is hereby directed to decide the Appeals positively within a period of eight months from the date of the first appearance of the parties before the Appellate Court. In the facts and circumstances of the case, there would be no order as to costs.