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2008 DIGILAW 47 (HP)

Ramji v. State of H. P.

2008-02-27

DEV DARSHAN SUD

body2008
JUDGMENT (Dev Darshan Sud, J.) (Oral) - Both these appeals are being decided by a common judgment as the matter is being remanded to the learned trial Court for decision afresh in accordance with law. Appellant Ramji is the plaintiff who instituted the suit in Court of learned Sub Judge, Ist Class, Ghumarwin praying for a decree of declaration and permanent injunction and in the alternative for possession of the suit land. Learned trial Court decreed the suit accepting the prayer made by he appellant-plaintiff. The state appealed against the judgment and decree of the learned trial Court which was reversed by the learned District Judge. The plaintiff is now in appeal. 2.My attention has been drawn to the questions of law which have been formulated and on the basis of which the appellant seeks intervention of this Court. At the time of hearing of the appeals, considering the entire record, the following question was allowed to be urged in terms of the proviso to Section 100 of the Code of Civil Procedure : “Whether the judgment and decree of the learned District Judge reversing the judgment and decree of the learned trial Court can be sustained as it does not assign reasons for reversal of the decree and does not contain a discussion of the entire points of fact and law urged before it?” 3.Before adverting to the questions urged for determination, one fact needs to be noticed and that is that the judgment of the learned District Judge, to say the least, is perfunctory. It needs no reiteration that the appeals preferred by the State against the judgment and decree of which the State sought reversal raised a number of valid points for determination. It is an admitted fact that the Court of the learned District Judge being the first appellate Court was the final court of fact and questions of fact determined by that Court are ordinarily not open to challenge under Section 100 of the Code of Civil Procedure (hereinafter referred to as ‘the Code’) before this Court. In the circumstances, it was the duty of the learned appellate Court to have discussed the entire evidence, the points of law and the submissions urged by the parties in support of their contentions. In the circumstances, it was the duty of the learned appellate Court to have discussed the entire evidence, the points of law and the submissions urged by the parties in support of their contentions. A reading of the judgment shows that there is no analytical examination of the evidence on record nor any sound or cogent reason for reversal of the reasoning of the learned trial Court. The judgment does not show the grounds factual or legal on the basis of which the appellate Court has come to a different conclusion than that arrived at by the learned trial Court. This can hardly be a judgment in terms of Section 96 of the Code. The Supreme Court has time and again held that it is the bounden duty of the appellate Court to discuss the evidence on record and to pass a reasoned judgment. Summary dismissal or mere expression of concurrence with the conclusion of the trial Court is not contemplated by the Code. 4.In State of Rajasthan v. Harphool Singh (dead) through his LRs., 2000(5) SCC 652 : 2002(2) Cur.L.J. (C.C.R.) S.C. 163 the Hon’ble Supreme Court held : “Aggrieved, the State pursued the matter in appeal before the first appellate Court but we find on a close scrutiny of the judgment that there was no due or proper application of mind or any critical analysis or objective consideration of the matter made, despite the same being the first appellate Court. On the other hand, by merely reproducing the findings of the nature adverted to by us, a mechanical affirmation seems to have been made of them without any reference to the principles of law or the criteria to be satisfied before the claim of the plaintiff of perfection of title by adverse possession could be sustained, involving correspondingly destruction of title of the State in respect of a public property. The first appellate Court further chose to reject the appeal on the ground that the same has not been presented within time even without properly noticing the details as to when the Court closed for summer vacation and when the same was reopened, on some strange method of reasoning.” 5.In Madhukar and others v. Sangram and others, 2001(4) SCC 756, the Supreme Court held : “6. In Santosh Hazari v. Purushottam Tiwari, 2001(3) SCC 179, this Court opined : (SCC pp. In Santosh Hazari v. Purushottam Tiwari, 2001(3) SCC 179, this Court opined : (SCC pp. 188-189, para 15) “The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. 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. .....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.” 7. The salutary principles referred to above in Santosh Hazari case have been respected in their breach. 8. Our careful perusal of the judgment in the first appeal shows that it hopelessly falls short of consideration which are expected from the court of first appeal. We, accordingly set aside the impugned judgment and decree of the High Court and remand the first appeal to the High Court for its fresh disposal in accordance with law.” (Emphasis supplied) 6.Precedent on this point need not be multiplied as the law is now well settled. (See Madan Lal (dead) by LRs. and others v. Yoga Bai (dead) by LRs., 2003(5) SCC 89. Again in H.K.N. Swami v. Irshad Basith (dead) by LRs., 2005(10) SCC 243, the Supreme Court held : “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 questions of law as also on facts and the first appellate Court is required to address itself told 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 recoding the finding regarding title. 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 recoding the finding regarding title. The order of the High Court is cryptic and the same is without assigning any reason. 4. For the aforesaid reasons, we accept this appeal, set aside the judgment of the High Court and remit the matter back to the High Court to decide it afresh keeping in view the observations made by this Court in Madhukar v. Sangram, 2001(4) SCC 756 while dealing with the first appeal.” (Emphasis supplied). 7.In these circumstances, both these appeals are allowed. The judgment and decree of the learned District Judge is quashed and set aside. The parties are directed to appear before the learned District Judge on 4.4.2008. A further direction is issued to the learned District Judge that considering the age of the cases, they shall be disposed of on or before 31.12.2008. The Registry is directed to send record to the Court of the learned District Judge forthwith. There shall be no order as to costs. M.R.B. ———————