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2017 DIGILAW 465 (UTT)

Rajendra Singh v. Kumar alias Kukki

2017-08-28

LOK PAL SINGH

body2017
JUDGMENT : 1. Present second appeal has been preferred by the plaintiff/appellant against the judgment and decree dated 10.06.2009 passed by District Judge, Tehri Garhwal, New Tehri in Civil Appeal No.4 of 2007, whereby said court dismissed the plaintiff’s appeal. 2. In brief, facts of the case are that plaintiff/appellant filed a suit being Original Suit No.16 of 2002 before Civil Judge (Sr. Div.), Tehri Garhwal, stating therein that on 06.11.1995 a contract was given by him to the defendant for constructing two shops for an amount of Rs. 45,000/-. A written agreement to this effect was also executed between the plaintiff and the defendnat. The defendant did not complete the work inspite of receiving additional amount and after his leaving the construction, the work was got completed by the plaintiff from some other person. After constructing these two shops, one was given on rent to Gulab Singh @ Rs.800/- per month and the other shop was encroached upon by the defendant. When the dispute arose, then both the shops mentioned in the schedule were attached by the Executive Magistrate on 07.03.2002, but on 09.05.2002, both the shops were released from attachment and possession of shop shown by letter ‘A’ was given to the plaintiff whereas possession of shop shown by letter ‘B’ was wrongly given to the defendant. Hence, the original suit was filed by plaintiff against the defendant for possession of the said shop and for grant of mesne profit @ Rs.500 per month until its vacation. 3. The defendant contested the suit and filed his written statement. He admitted the fact of giving contract for construction of shops and that shop shown by letter ‘A’ was given to Gulab Singh by the plaintiff but denied ownership of the plaintiff over the shop in dispute. He contended that this shop shown by letter ‘B’ is actually two shops which are in the joint ownership of the defendant and his brothers. He also contended that the suit is bad for non-joinder of necessary party as the plaintiff has not impleaded brothers of the defendant. 4. On the pleadings of the parties, the trial court framed the following issues: (i) Whether the disputed shop shown with letter ‘B’ in Schedule-A of plaint was constructed by plaintiff and he is the owner of said shop? If so, its effect? (ii) Whether the suit is bad for non-joinder of necessary party? 4. On the pleadings of the parties, the trial court framed the following issues: (i) Whether the disputed shop shown with letter ‘B’ in Schedule-A of plaint was constructed by plaintiff and he is the owner of said shop? If so, its effect? (ii) Whether the suit is bad for non-joinder of necessary party? (iii) Whether the suit is undervalued? (iv) Whether the defendant is entitled to special costs from the plaintiff? (v) To what relief, if any, is the plaintiff entitled? (vi) Whether the disputed shop shown by letter ‘B’ is actually two shops and whether the plaintiff is having any right on the said shops? 5. Both the parties led their oral and documentary evidence. After hearing the learned counsel for parties and upon perusal of the evidence led by the parties, the trial court, vide judgment and decree dated 17.03.2007, dismissed the suit of the plaintiff. 6. Against the judgment of the trial court and the decree drawn on its basis, plaintiff filed civil appeal no.4 of 2007 in the court of District Judge, Tehri Garhwal. The first appellate court, vide judgment and decree dated 10.06.2009, dismissed the plaintiff’s appeal. Hence, present second appeal has been filed by the plaintiff/appellant. 7. This second appeal was admitted on the following substantial question of law:- “Whether the finding by the courts of fact is vitiated by non-consideration of relevant evidence or by an essentially erroneous approach to the matter?” 8. Learned Senior Counsel appearing for the plaintiff/appellant urged that the first appellate court has not assigned any reason in its judgment and has dismissed the appeal in a very cryptic manner. Learned Senior Counsel invited attention of this Court towards the provisions of Order 41 Rule 31 of The Code of Civil Procedure, 1908 and submitted that the first appellate court has neither recorded its own and independent findings on the issues framed by the trial court, nor has formulated any points for determination to adjudicate the case. 9. Per contra, learned counsel for the respondent/defendant supported the impugned judgment and decree and contended that the trial court has recorded the findings on all the issues and it was not obligatory for the first appellate court to record its own independent findings on all the issues or to frame any point for determination while affirming the judgment and decree of the trial court. He further submitted that in fact no substantial question of law arises for consideration in this appeal and the appeal deserves to be dismissed. 10. I have heard learned counsel for the parties and perused the entire material available on record. 11. Before any further discussion, it would be relevant to mention Order XLI Rule 31 of The Code of Civil Procedure, 1908, which is reproduced hereunder: “Order XLI. Appeals from Original Decrees 31. Contents, date and signature of judgment.-The judgment of the Appellate Court shall be in writing and shall state.- (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled, and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.” 12. From the perusal of the impugned judgment and decree, it transpires that the first appellate court has decided the appeal in a very cryptic manner without assigning any reason in its judgment and framing any points for determination. 13. It is well settled in law that the reason is the life of law. The Hon’ble Apex Court in its recent judgment dated 04.08.2017 rendered in the case of u. Manjunath Rao vs. U. Chandrashekhar, has held as follows: “12. On a perusal of the said Rule, it is quite clear that the judgment of the appellate court has to state the reasons for the decision. It is necessary to make it clear that the approach of the first appellate court while affirming the judgment of the trial Court and reversing the same is founded on different parameters as per the judgments of this Court. In Girijanandini Devi (supra), the Court ruled that while agreeing with the view of the trial court on the evidence, it is not necessary to restate the effect of the evidence or reiterate the reasons given by the trial court. Expression of general agreement with reasons given in the trial court judgment which is under appeal should ordinarily suffice. The same has been accepted by another three-Judge Bench in Santosh Hazari (supra). Expression of general agreement with reasons given in the trial court judgment which is under appeal should ordinarily suffice. The same has been accepted by another three-Judge Bench in Santosh Hazari (supra). However, while stating the law, the Court has opined that expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage to be adopted by the appellate court for shirking the duty cast on it. We are disposed to think, the expression of the said opinion has to be understood in proper perspective. By no stretch of imagination it can be stated that the first appellate court can quote passages from the trial court judgment and thereafter pen few lines and express the view that there is no reason to differ with the trial Court judgment. That is not the statement of law expressed by the Court. The statement of law made in Santosh Hazari (supra) has to be borne in mind. 13. In this regard, a three-Judge Bench decision in Asha Devi v. Dukhi Sao and another, AIR 1974 SC 2048 is worthy of noticing, although the context was different. In the said case, the question arose with regard to power of the Division Bench hearing a Letters Patent appeal from the judgment of the single Judge in a first appeal. The Court held that the Letters Patent appeal lies both on questions of fact and law. The purpose of referring to the said decision is only to show that when the Letters Patent appeal did lie, it was not restricted to the questions of law. The appellant could raise issues pertaining to facts and appreciation of evidence. This is indicative of the fact that the first appellate court has a defined role and its judgment should show application of mind and reflect the reasons on the basis of which it agrees with the trial Court. There has to be an “expression of opinion” in the proper sense of the said phrase. It cannot be said that mere concurrence meets the requirement of law. Needless to say, it is one thing to state that the appeal is without any substance and it is another thing to elucidate, analyse and arrive at the conclusion that the appeal is devoid of merit. 14. It cannot be said that mere concurrence meets the requirement of law. Needless to say, it is one thing to state that the appeal is without any substance and it is another thing to elucidate, analyse and arrive at the conclusion that the appeal is devoid of merit. 14. In the case at hand, as we have noted earlier, the learned Judge has really not ascribed any reason. There has been no analysis of facts or law. There is no discussion with regard to the points urged. While agreeing with the general approval of reasons to support the conclusions of the judgment in appeal, the High Court has to keep in view the language employed in Order XLI Rule 31 CPC and the view expressed in Santosh Hazari (supra). Analysis and reason are to be manifest. When that is not done, needless to say, the judgment of the High Court becomes indefensible.” 14. The Hon’ble Apex Court in the case of Santosh Hazari vs. Purshotam Tewari, (2001) 3 SCC 179 has held that the first appellate court while exercising jurisdiction under Section 96 of the C.P.C. has to record its finding on every issues or frame points for determination to arrive at a particular conclusion and if the first appellate court has failed to discharge its legal obligation as mandated u/s 96 read with Order XLI Rule 31 CPC, the judgment of the appellate court cannot be sustained. Para-15 and 16 are relevant, which are reproduced hereunder: “15. ……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 (See Girijanandini Devi & Ors. Vs. Bijendra Narain Choudhary, AIR 1967 SC 1124 ). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate Court for shirking the duty cast on it. While writing a judgment of reversal the appellate Court must remain conscious of two principles. We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate Court for shirking the duty cast on it. While writing a 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 certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a 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 (See Madhusudan Das Vs. Smt. Narayani Bai). The rule is - and it is nothing more than a rule of practice - that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judges notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the finding of the trial Judge on a question of fact.(See Sarju Pershad Ramdeo Sahu Vs. Jwaleshwari Pratap Narain Singh & Ors.). Secondly, 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. We need only remind the first appellate Courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate Court continues, as before, to be a final Court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. We need only remind the first appellate Courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate Court continues, as before, to be a final Court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate Court is also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate Court even on questions of law unless such question of law be a substantial one. 16. Reverting back to the facts of the case at hand, prima facie we find the first appellate Court did not discharge the duty cast on it as a Court of first appeal. The High Court having noticed failure on the part of the appellant in not discharging the statutory obligation cast on him by sub-section (3) of Section 100 of the Code, on account of the substantial question of law involved in the appeal having not been stated, much less precisely, in the memorandum of second appeal, ordinarily an opportunity to frame such question should have been afforded to the appellant unless the deficiency was brought to the notice of the appellant previously by the High Court Registry or the court and yet the appellant had persisted in his default. That was not done. In our opinion, the following substantial question of law does arise as involved in the case and worth being heard by the High Court:- Whether on the pleadings and the material brought on record by the defendant, the first appellate Court was right in holding that the case of adverse possession was made out by the defendant and the suit filed by the plaintiff was liable to be dismissed as barred by time under Article 65 of the Limitation Act, 1963, more so when such finding was arrived at in reversal of the findings of the trial Court?” 15. In view of the well settled proposition of law, I am of the firm opinion that the first appellate court has not decided the appeal in consonance with the provisions of Order XLI Rule 31 CPC and has not taken care of the judgments of Hon’ble Apex Court. The first appellant court was the final court of facts and being the first appellate court it was duty of the court to record its own findings on all the issues or to frame points for determination. The judgment and decree of the first appellate court is cryptic and is therefore unsustainable in the eyes of law and deserves to be set aside. 16. As discussed above, since the first appellate court has failed to discharge its legal obligation as mandated u/s 96 read with Order XLI Rule 31 CPC, it would not be just and proper on the part of this Court to decide the present second appeal on its merits. In the fitness of things and in the interest of justice, it would be appropriate to remand the matter to the first appellate court to decide the first appeal in view of the observations made hereinabove, after affording opportunity of hearing to the parties. 17. Accordingly, this second appeal is allowed. Impugned judgment and decree dated 10.06.2009 passed by District Judge, Tehri Garhwal, New Tehri in Civil Appeal No.4 of 2007, is set aside. Matter is remanded to the first appellate court for deciding the civil appeal afresh in accordance with law. As the matter is quite old, the first appellate court shall make every endeavour to decide the appeal at the earliest. Both the parties shall appear before the first appellate court on 20.09.2017. 18. There will no order as to costs.