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2015 DIGILAW 289 (UTT)

PRABHA RANI SISODIA v. RAJEEV BANSAL

2015-05-29

SERVESH KUMAR GUPTA

body2015
JUDGMENT : Hon’ble Servesh Kumar Gupta, J. 1. Having heard learned Counsel for the parties on the review application, it transpires that Original Suit No. 13/2003, preferred by Smt. Prabha Rani Sisodia in the Court of Civil Judge (Sr. Div.) seeking prohibitory injunction and the mandatory injunction to recover the possession of a portion of the land ad measuring 30 x 50 ft. (1500 sq. ft.), which is adjacent to the plot owned by the plaintiff ad measuring 50 x 40 ft. (2000 sq. ft.), was dismissed by the Court below because she was not found in the possession of such plot and the mandatory injunction was denied on the premise that the land belonged to some Ganga Saran Tandon, who granted the perpetual lease to Smt. Bhagyawati on 17.2.1965, from whom the land came ultimately in the ownership and possession of respondents no. 4 to 8 by way of 2-3 subsequent transfers of the said land. 2. Since Prabha Rani lost in the Trial Court, she preferred First Appeal No. 129/2011 before this Court on 1.11.2011. No interim relief was granted to the appellant either at the time of filing of the appeal or subsequently at the time of its admission on 3.9.2013. So, the appellant 2 moved an urgency application no. 1987/2015. On hearing such application, the entire merits of the controversy was revealed by the learned Counsel for the respective parties and, this Court, after having been stated in the different paragraphs of the impugned judgment dated 27.4.2015, expressed its view that it has not been persuaded to differ from the findings of the Trial Court. So, the appeal was dismissed. 3. Learned Sr. Counsel on behalf of the review applicant has relied upon a number of precedents, which are as under: (i) Madhukar and others Vs. Sangram and others (2001) 4 SCC 756 , (ii) Shasidhar and others Vs. Smt. Ashwini Uma Mathad & Anr.* [2015 (1) ARC 400], (iii) M/s. United Engineers & Contractors Vs. Secretary to Govt, A.P. & others AIR 2013 Supreme Court 2239, (iv) Jayanmti De and another Vs. Abani Kanta Barat and others, AIR 2000 Supreme Court 3578 (2), (v) Uttar Pradesh Avas Evam Vikas Parishad Vs. Sheo Narain Kushwaha and others, (2011) 6 SCC 456 , 4. Learned Sr. Secretary to Govt, A.P. & others AIR 2013 Supreme Court 2239, (iv) Jayanmti De and another Vs. Abani Kanta Barat and others, AIR 2000 Supreme Court 3578 (2), (v) Uttar Pradesh Avas Evam Vikas Parishad Vs. Sheo Narain Kushwaha and others, (2011) 6 SCC 456 , 4. Learned Sr. Counsel for the review applicant drew attention towards the observation of the Hon’ble Apex Court, made in its Constitution Bench judgment in Madhukar & Others v. Sangram & Others case (supra), and the same reads as sunder: “Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. It has failed to discharge the obligation placed on a first appellate court. The judgment under appeal is so cryptic that none of the relevant aspects have even been noticed. The appeal has been decided in a very unsatisfactory manner. First appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings.” 5. Relying upon the aforesaid observation, learned Sr. Counsel argued that this first Appellate Court should have stated all the reasons of its agreement with the Trial Court judgment. Since such reasons have not been disclosed in the impugned judgment, therefore, it should be reviewed, recalled and, as a consequence, be set aside. 6. Per contra, learned Counsel for the respondents has relied upon another Constitution Bench judgment of the Hon’ble Apex Court, rendered in the case of Girijanandini Devi & Others v. Bijendra Narain Choudhary, AIR 1967 SC 1124 , wherein it has been held as under: “It is true that the High Court did not enter upon a reappraisal of the evidence, but it generally approved of the reasons adduced by the Trial Court in support of its conclusion. We are unable to hold that the learned Judges of the High Court did not, as is contended before us, consider the evidence. We are unable to hold that the learned Judges of the High Court did not, as is contended before us, consider the evidence. It is not the duty of the Appellate Court when it agrees with the view of the Trial Court on the evidence either to restate the effect of the evidence or to reiterate the reasons given by the Trial Court. Expression of general agreement with reasons given by the Court decision of which is under appeal would ordinarily suffice.” 7. At this juncture, it was urged by the learned Sr. Counsel for the review applicant that it is well settled principal that any authority which has been laid down at later point of time should prevail over the earlier one. I do agree with this submission, but at the same time, it should also be seen that whether in the authority laid down by any Constitution Bench has considered the law laid down by the same Constitution Bench at some earlier point of time. If the authority laid down at some earlier point of time has not been taken into consideration for any reason whatsoever, then, to my mind, it is not always acceptable that such subsequent authority must prevail because in such an eventuality, the later authority has obviously been laid down per incuriam. 8. In the case of G. Amalorpavam & Others v. R.C. Diocese of Madurai & Others, (2006) 3 SCC 224 , Hon’ble Apex Court has placed reliance in paragraph 10 on the law cited in the Girja Nandini Devi case in the following words:- “It is not the duty of the appellate court when it agrees with the view of the trial court on the evidence either to restate the effect of the evidence or to reiterate the reasons given by the trial court. Expression of general agreement with reasons given by the Court decision of which is under appeal would ordinarily suffice.” 9. This view of Girja Nandini Devi case was further reiterated in Santosh Hazari v. Purushottam Tiwari , (2001) 3 SCC 179 , by observing as under: “………..the task of an appellate court affirming the findings of the trial court is an easier one. This view of Girja Nandini Devi case was further reiterated in Santosh Hazari v. Purushottam Tiwari , (2001) 3 SCC 179 , by observing as under: “………..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 reasons given by the court, decision of which is under appeal, would ordinarily suffice.” 10. That apart, Order XLI Rule 11 (sub-rule 4) of the Civil Procedure Code, which was inserted in the Code by way of Act No. 104 of 1976 w.e.f. 1.2.1977, contemplates that “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.” Meaning thereby that if the first Appellate Court is of the district level, then, too, while delivering a judgment, recording, reproducing and restating the same reasons is not envisaged under the law if the first Appellate Court does agree with the findings of the Trial Court. In that situation, recording its grounds in brief is sufficient for doing so. 11. The provisions of Order XLI Rule 31 has been harped on by the learned Sr. Counsel vehemently, supported on the strength of the precedents cited above, but to my mind, the precedents are the interpretation of the bare law. Here in the present controversy, the precedent, as laid down in Girija Nandini Devi case, relied upon by the Hon’ble Apex Court in Santosh Hazari case (supra), makes it abundantly clear that if the first Appellate Court, particularly a High Court, having heard the arguments and after considering the evidence and judgment in question, does agree with the findings of the Trial Court, then it would be a completely futile exercise to reproduce and restate the same evidence at the cost of wasting its precious time. 12. Undoubtedly, it is the duty of any Court to meticulously safeguard the interests of the parties and ensure that the justice is delivered. The length of the judgment does not matter, what matters is that whether the controversy has been correctly dealt with or not. 12. Undoubtedly, it is the duty of any Court to meticulously safeguard the interests of the parties and ensure that the justice is delivered. The length of the judgment does not matter, what matters is that whether the controversy has been correctly dealt with or not. It is hardly necessary to restate the same reasons, which the lower court has already recorded. However, it should always be accepted that if the Appellate Court after having considered the evidence and hearing the respective arguments differs from the findings of the judgment under appeal, then it is indispensable to state elaborately the reasons which are the basis of the changed findings and view taken by such Appellate Court. 13. In view of what has been stated above, I feel that there is no merit in this review application. It is hereby dismissed.