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2012 DIGILAW 682 (MP)

Kalawati v. Mohini Devi

2012-07-06

ALOK ARADHE

body2012
JUDGMENT : This appeal has been preferred by the plaintiff. This court vide order dated 16-02-1996, while admitting the appeal had formulated the following substantial question of law :- "Whether in view of the fact that appellant allowed the respondent to grow certain fruit bearing as well as flower bearing trees for the land in dispute, it could be said that the respondents had perfected their title to the suit land by adverse possession ?" Thereafter, today the following additional substantial question of law was framed. "Whether the first appellate Court, which is the final court of facts, was justified in dismissing the appeal preferred by the appellant summarily without issuing any notice to the respondents ?" 2. The facts leading to filling of this appeal briefly stated are that the plaintiff had filed the suit seeking a relief of declaration and possession. The suit filed by the plaintiff was dismissed by the trial Court vide the judgment and decree dated 03-08-1994. Being aggrieved by the aforesaid decree, the appellant preferred an appeal. The appellate court vide order dated 19-09-1994 summarily dismissed the appeal preferred by the appellant without issuing notice to the respondents. 3. Learned counsel for the appellant submitted that lower appellate Court grossly erred in dismissed the appeal preferred by the appellant summarily without even issuing notice to the respondents. On the other hand, learned counsel for the respondents submitted that the order passed by lower appellate Court is perfectly justified and does not call for any interference. 4. I have considered the submissions made on both the sides and have perused the order passed by the appellate Court. It has been held by the Supreme Court in the case of Madhukar and Others Vs. Sangram and others (2001) 4 SCC 756 , that first appeal is a valuable right. The parties have the right to be heard on the question of law as well as the fact. The first appellate court therefore, must record its findings only after dealing with the issue of law and fact as well as oral and documentary evidence. The appellate Court must give reasons in support of its conclusions. In Bolin Chetia Vs. The parties have the right to be heard on the question of law as well as the fact. The first appellate court therefore, must record its findings only after dealing with the issue of law and fact as well as oral and documentary evidence. The appellate Court must give reasons in support of its conclusions. In Bolin Chetia Vs. Jogadish Bhuyan and others AIR 2005 SC 1872 , it has been held that power to dismiss the appeal summarily has to be exercised by way of exception only when the court is satisfied that the appeal is worthless and no arguable question of law or fact arise for consideration. The court is required to pass a speaking order and has to come to conclusion that calling the party to appear would be an exercise in futility. 5. In the backdrop of the well settled legal position, if the order passed by the lower appellate Court is examined, it is apparent that the lower appellate Court has nowhere recorded the finding that the appeal filed by the appellant is either worthless or no arguable question of law arises for consideration. The appellate Court in a cryptic and cavalier manner has dismissed the appeal preferred by the appellant summarily without issuing even notice to the respondents which is impermissible in law. For the aforementioned reasons, the additional substantial question of law which is framed by this court is answered in the negative. 6. In the result, the appeal succeeds. The order passed by the lower appellate Court on 19-09-1994 is set aside. The matter is remanded to the lower appellate Court to decide the same afresh after affording an opportunity of hearing to the parties. Since, the matter has been remanded to the lower appellate Court for deciding the appeal afresh, therefore, it is not necessary to answer the substantial question of law which was framed by this Court on 16.2.96. In order to cut short the delay, the counsel for the parties state that the parties shall appear before the lower appellate Court along with copy of the order passed today on 1st August, 2012. The appellate Court thereafter, shall proceed to decide the appeal in accordance with law, expeditiously. 7. Let the records of the Courts below be sent back immediately. Accordingly, the appeal is disposed of.