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2012 DIGILAW 2197 (BOM)

Sunny S. K. Panjikar v. Sarita S. K. Panjikar

2012-11-23

A.P.LAVANDE

body2012
JUDGMENT Per A.P. Lavande. J. - Heard Mr. Shirodkar, learned Counsel for the appellants and Mr. Bhobe, learned Counsel for the respondent. 2. By this appeal, the appellants take exception to the judgment and decree dated 05/06/2004 passed by IInd ad hoc Additional District Judge, Panaji in Regular Civil Appeal No. 73/2004 by which the lower appellate Court set aside the decree dated 16/04/2004 passed by Civil Judge, Junior Division, Ponda in Regular Civil Suit No. 90/1999/D. 3. The appellants are the plaintiffs and the respondent is the defendant in the above suit filed primarily seeking relief of permanent injunction in respect of the residential flat admeasuring 170 square metres situated on the ground floor in the building known as 'Panjikar Apartments' at village Veling, Mardol, Goa in Survery No. 16/3. 4. The parties shall hereinafter be referred to as per their status before the trial Court. 5. The suit filed by the plaintiffs was contested by the defendant and the defendant filed counterclaim seeking declaration that gift deed dated 09/12/1998 executed by Shahi Panjikar, the father of the plaintiffs and husband of the defendant on his behalf and as constituted attorney of the defendant in terms of power of attorney dated 15/06/1998, be declared null and void. In the suit, the plaintiffs examined their father Shri Shashi Panajikar whereas the defendant examined herself and her sister DW 2-Nima Narendra Naik. 6. The trial Court framed the following issues : (1) Does the plaintiff proves that they are absolute owners of a residential flat of 170 sq. metres situated on the ground floor in the building known as "Panjikar Apartments" at Veling. Mardol? (ii) Does the plaintiff proves that the defendant interfered With plaintiffs possession in the flat? (iii) Does the plaintiff proves that they are entitled for relief of permanent injunction? (iv) Does the defendant proves that the Deed of Gift dated 09/12/98 registered under No. 1122 at Sub-Registrar, Ponda is null and void? 7. The trial Court recorded findings in favour of the plaintiffs and dismissed the counterclaim filed by the defendant and consequently, decreed the suit. 8. The defendant preferred above appeal to District Judge, North Goa, Panaji which was made over to IInd ad hoc Additional District Judge, Panaji who by the impugned judgment and decree set aside the decree passed by the trial Court. 9. 8. The defendant preferred above appeal to District Judge, North Goa, Panaji which was made over to IInd ad hoc Additional District Judge, Panaji who by the impugned judgment and decree set aside the decree passed by the trial Court. 9. The appeal was admitted on the following substantial question of law : (i) Whether on the pleadings and the material on record by the appellant the First Appellate Court was right in holding that the evidence in totality prima facie shows that Sashi Panjikar had knowledge of the revocation of power of attorney and more so when the findings are arrived at in reversal of findings of the trial Court, having regard to the provisions of Section 208 of the Indian Contract Act. 10. Mr. Shirodkar, learned Counsel appearing for the appellants submitted that in addition to the substantial question of law, following additional substantial question of law be formulated : "Whether the decree passed by the lower appellate Court deserves to be quashed and set aside for non-compliance of Order XLI, Rule 31 of C.P.C.?" 11. Although the prayer has been opposed by Mr. Bhobe, learned Counsel for respondent/defendant, having regard to the judgment of the lower appellate Court. I am of the opinion that additional substantial question of law deserves to be formulated and I do so in exercise of power vested in me under Section 100 of C.P.C. 12. Learned Counsel for the respondent is given an opportunity to address arguments on the additional substantial question of law formulated. Learned Counsel for the respondent has no objection if the matter is heard today. 13. Mr. Shirodkar, learned Counsel appearing for the appellants/plaintiffs submitted that the lower appellate Court has not exercised jurisdiction as an appellate Court and has reversed the decree without even adverting to the findings of the trial Court. Learned Counsel further submitted that the lower appellate Court has not even formulated points for determination in accordance with Order XLI. Rule 31 of C.P.C. and. therefore, the impugned decree is liable to be set aside. Learned Counsel further submitted that the impugned judgment is cryptic and the lower appellate Court has not dealt with the findings given by the trial Court which was required to be done by the lower appellate Court while exercising appellate jurisdiction against the decree passed by the trial Court. In support of his submission Mr. Learned Counsel further submitted that the impugned judgment is cryptic and the lower appellate Court has not dealt with the findings given by the trial Court which was required to be done by the lower appellate Court while exercising appellate jurisdiction against the decree passed by the trial Court. In support of his submission Mr. Shirodkar placed reliance upon the judgment of the Apex Court in the case of Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179 . Mr. Shirodkar, therefore, submitted that it would be just and proper to set aside the impugned judgment and decree and remand the matter to the lower appellate Court for fresh consideration. 14. Mr. Bhobe, learned Counsel for the respondent/defendant fairly conceded that the judgment is cryptic, but further submitted that this is not a fit case in which the decree deserves to be set aside and the matter remanded to lower appellate Court for fresh consideration. 15. Having considered the rival submissions and having perused the record. I am of the considered opinion that this is a fit case in which the impugned judgment and decree passed by the lower appellate Court deserves to be quashed and set aside. 16. No doubt in every case in which the lower appellate Court has not formulated points for determination in terms of Order XLI, Rule 31 of C.P.C., it is not necessary for this Court to set aside the judgment and decree on this sole ground. However, perusal of the impugned judgment discloses that the lower appellate Court has not even adverted to the findings recorded by learned trial Court which has been done upon appreciation of evidence led by both the parties. 17. In the case of Santosh Hazari (supra), in paragraph 15, the Apex Court has observed that first appeal is 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 the reasons, on all the issues arising along with the contentions put forth and pressed by the parties for decision of the appellate Court. The task of an appellate Court affirming the findings of the trial Court is an easier one. The judgment of the appellate Court must, therefore, reflect its conscious application of mind and record findings supported by the reasons, on all the issues arising along with the contentions put forth and pressed by the parties for decision of the appellate Court. The task of an appellate Court affirming the findings of the trial Court is an easier one. The appellate Court agreeing with the view of the trial Court need not restate the effect of the evidence or reiterate the reasons given by the trial Court. Expression of general agreement with the reasons given by the Court, the decision of which under appeal, would ordinarily suffice. The Apex Court further observed that while writing judgment of reversal, the appellate Court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial Court must weigh with the appellate Court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This does not mean that when the appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Court and as a matter of law, if the appraisal of the evidence by the trial Court suffers from material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate Court is entitled to interfere with the finding of fact. The Apex Court further observed that while reversing the finding of fact, the appellate Court must come into close quarters with the reasoning assigned by the trial Court and 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. The Apex Court reminded the first appellate Court of the additional obligations cast on it by the scheme of present Section 100 substituted in the Code. The Apex Court further observed that the first appellate Court continues to be a final Court of facts and pure findings of fact remain immune from challenge before the High Court in Second Appeal. 18. Having regard to the ratio laid down by the Apex Court in the case of Santosh Hazari (supra) and having regard to the impugned judgment, in my view, the submission made by Mr. 18. Having regard to the ratio laid down by the Apex Court in the case of Santosh Hazari (supra) and having regard to the impugned judgment, in my view, the submission made by Mr. Shirodkar that the impugned judgment passed by the lower appellate Court is in clear breach of the ratio laid down by the Apex Court, has to be accepted. It is now well settled that jurisdiction of this Court to interfere in Second Appeal under Section 100 is very limited and ordinarily, this Court would not reappreciate the evidence led by the parties. This being the position, in my view, the fact that the lower appellate Court has not formulated points for determination coupled with the fact that the lower appellate Court has not even adverted to the findings given by the trial Court must necessarily result in setting aside the impugned judgment and decree and further remand of the matter to the lower appellate Court. 19. In view of the above facts, the second substantial question of law is answered in favour of the appellants. 20. Since the matter is remanded to the lower appellate Court it is not necessary for me to give finding on the first substantial question of law. 21. In the result therefore, the impugned decree dated 05/06/2004 passed by IInd ad hoc Additional District Judge, Panaji in Regular Civil Appeal No. 73/2004 is quashed and set aside and the matter remanded to the lower appellate Court for fresh decision. The lower appellate Court is expected to dispose of the appeal keeping in mind the principles governing interference laid down by the Apex Court in the case of Santosh Hazari (supra). 22. It is made clear that I have not expressed any opinion on the merits of the rival contentions and the lower appellate Court to dispose of the appeal after giving an opportunity of being heard to both sides, in accordance with law keeping in mind the principles governing interference by the appellate Court against the decree passed by the trial Court. 23. The parties shall appear before the lower appellate Court on 17/12/2012 at 10.00 a.m. Considering that the appeal is of the year 2004, the lower appellate Court shall dispose of the appeal expeditiously. 24. Mr. 23. The parties shall appear before the lower appellate Court on 17/12/2012 at 10.00 a.m. Considering that the appeal is of the year 2004, the lower appellate Court shall dispose of the appeal expeditiously. 24. Mr. Bhobe, learned Counsel appearing for the respondent submitted that during the pendency of this appeal, the appellants were injuncted from creating third party rights. alienating or transferring the suit flat and this order be continued. The prayer has been opposed by Mr. Shirodkar, learned Counsel for the appellants. 25. In my view, it would be just and proper to continue the interim order granted by this Court till disposal of Regular Civil Appeal No. 73/2004. Accordingly, interim order granted by this Court to continue till disposal of Regular Civil Appeal No. 73/2004. 26. The appeal stands disposed of in aforesaid terms. No order as to costs. Appeal disposed of.