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2018 DIGILAW 1530 (HP)

Secretary (pwd) v. Keshav Ram

2018-08-20

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J.(Oral) - It is not in dispute that the suit filed by the respondent/plaintiff for recovery was partly decreed by the learned trial Court for recovery of Rs.7,02,120/- in favour of the plaintiff. 2. The defendant-State preferred an appeal before the learned first appellate court whereby it affirmed the decree so passed by the learned trial Court in favour of the plaintiff. However, the manner in which the decree has been affirmed, leads much to be desired. 3. One of the main questions to be determined in the appeal was with respect to the quantum of damages, if any, the plaintiff was entitled to. The learned trial Court had on the basis of the reasonings as recorded in paras 29 and 30 of its judgment passed the aforesaid decree. It shall be apposite to refer to the aforesaid paragraphs 29 and 30, which read thus: "29. Now, it has to be seen that what amount the plaintiff is entitled for. To this, I am of the view that plaintiff is entitled for the loss shown in Ex.PW-1/B in column No. 1,4,6,8,9 and 10 for amount Rs. 3,00,000/- for the damages shown in the column No. 5. Accordingly, the plaintiff is entitled for damages in sum of Rs. 6,17,347/-. The damages shown in column No.2, 3 and 7 is not possible due to blasting work. It is note worthy that plaintiff is not entitled for any loss occurred to the apple trees, for the want of necessary evidence about such loss. 30. On culling the entire evidence, I am of the view that the plaintiff has sufficiently proved his cause of action. The plaintiff is entitled for damages in the sum of Rs.592.50/- (column No.1), Rs.46,762/-(in column No.4), Rs.3,00,000/- (in column No.5), Rs.7304/- (in column No.6), Rs.36,857/- (in column No.8) Rs. 6740/- (in column No.9) and Rs. 3,03,865/-(in column No.10). The total comes to Rs.7,02,120/-. Hence,the plaintiff is entitled for Rs.7,02,120.50 paise, as damages. However, the plaintiff has failed to prove the damages in column No. 2, 3 and 7 of Ex.PW-1/B. Thus, issue No.1 is accordingly partly decided in favour of the plaintiff." 4. 6740/- (in column No.9) and Rs. 3,03,865/-(in column No.10). The total comes to Rs.7,02,120/-. Hence,the plaintiff is entitled for Rs.7,02,120.50 paise, as damages. However, the plaintiff has failed to prove the damages in column No. 2, 3 and 7 of Ex.PW-1/B. Thus, issue No.1 is accordingly partly decided in favour of the plaintiff." 4. Evidently, the appellants had specifically challenged and assailed the technical report Ex.PW-1/A and estimate Ex.PW-1/B apart from other grounds as is evident from paragraph 4 of the appeal which reads thus: "a) That the judgment/decree dated 15.12.2017 passed by learned Additional District Judge-1, Shimla is illegal, wrong and contrary to facts of the case and law. The judgment is liable to be set-aside. b) That the learned Appellate Court has not rightly appreciated the pleading proofs and the material placed on record by the parties. As a result thereof erroneous judgment and decree has been passed by the Courts below which has caused injustice to the appellants. c) That the trial Court below has erred while deciding issue No. 1 & 2 in favour of the respondent/plaintiff. The plaintiff/respondent has failed to establish that the damage was caused to any acts of the appellants. That the respondent/plaintiff could not prove and probabilise the damage as alleged the judgment is not legal and correct and calls for interference by this Honble Court. d) That the learned trial Court as well as 1 st appellate court have wrongly based their finding solely on the report of so called expert Sh. B.C. Sharma, which was exhibited as Ext.PW- 1/A. The learned trial Court as well as 1 st appellate court has not properly appreciated the report of the expert and have come to wrong conclusion on issue w.r.t. alleged damage of the house of the plaintiff. The perusal of report clearly shows that there is no mention in the report of PW-1 about the damage caused to any part of house of the plaintiff by blasting material. The report reveals that the roof and wooden planks sealing etc. were found to have been damaged but no damage have been found to have been caused due to blasting material. However, both the courts below without carefully examining the report of expert have come to erroneous conclusion that the damage to the house of plaintiff has been caused due to blasting by defendant. were found to have been damaged but no damage have been found to have been caused due to blasting material. However, both the courts below without carefully examining the report of expert have come to erroneous conclusion that the damage to the house of plaintiff has been caused due to blasting by defendant. The finding of both the courts are erroneous and deserves to be set-aside. e) That both the learned courts below also did not take into consideration the fact that the expert in his report Ex.PW-1/A has estimated the cost of construction of new house and has not assessed the actual damage caused to the house of the plaintiff. The report clearly shows that the value assessed is in respect of new house and not about the alleged damage caused to the house. In such circumstances, the report was of no value to assess the alleged damage caused to the house. The courts below however, appears to have been swayed away by the hypothetical estimation made in the report. The court below have miserably failed to apply the minds while appreciating the report. In result erroneous findings have been returned by both the courts and the judgments of court below are liable to be set aside by this Honble Court. f) That both the courts below have not appreciated the evidence in its entirety and has ignored the depositions made by the defendant witnesses. DW-3 Rajinder Singh Negi who was the contractor has no where deposed that any blasting was done during the execution of the work. Similarly, DW-2 and DW-4 have also probabilised the defense taken by the defendants through their deposition while stepping in the witness box. The courts below however, ignored these convincing facts." 5. However, the learned first Appellate Court upheld and affirmed the judgment and decree of the learned trial Court on the question of quantum by simply observing as under: "26. As per estimate Ex.PW-1/B, PW-1 has assessed total loss to the tune of Rs.14,64,318/-, the learned trial Court in para 29 and 30 has elaborately dealt with estimate report Ex. PW-1/B and made deduction in this report especially when the same has not been rebutted. The conclusion arrived at by the learned trial Court with regard to damages does not require any interference. Moreover, the plaintiff has also not filed any cross-appeal or cross-objections to this effect. " 6. PW-1/B and made deduction in this report especially when the same has not been rebutted. The conclusion arrived at by the learned trial Court with regard to damages does not require any interference. Moreover, the plaintiff has also not filed any cross-appeal or cross-objections to this effect. " 6. It is more than settled that the first appellate Court is the final court of facts and hence its judgment must reflect application of mind. In its judgment, first appellate court must state points for determination, decision thereon and reasons for decision. Where the appellate court agrees with the views of the trial court on evidence, it need not restate effect of evidence or reiterate reasons given by the trial court and expression of general agreement with reasons given by trial court would ordinarily suffice in such a case. However, where the appellate court reverses the findings of the trial court, it required to record the findings in clear terms explaining how the reasonings of the trial court are erroneous. Reference in this regard can conveniently be made to the judgment of the Honble Supreme Court in Laliteshwar Prasad Singh and others vs. S.P. Srivastava (dead) through Legal Representatives (2017) 2 SCC 415 wherein it was observed as under: "13. An appellate court is the final court of facts. The judgment of the appellate court must therefore reflect courts application of mind and record its findings supported by reasons. The law relating to powers and duties of the first appellate court is well fortified by the legal provisions and judicial pronouncements. Considering the nature and scope of duty of first appellate court, in Vinod Kumar v. Gangadhar (2015) 1 SCC 391 , it was held as under: (SCC pp.394-96, paras 12- 15) "12. In Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179 , this Court held as under: (SCC pp. 188-89, para 15) "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. 188-89, para 15) "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." The above view has been followed by a three-Judge Bench decision of this Court in Madhukar v. Sangram (2001) 4 SCC 756 , wherein it was reiterated that sitting as a court of first appeal, it is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. 13. In H.K.N. Swami v. Irshad Basith (2005) 10 SCC 243 , this Court stated as under: (SCC p. 244, para 3) "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 to 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 recording the finding regarding title." 14. Again in Jagannath v. Arulappa (2005) 12 SCC 303 , while considering the scope of Section 96 of the Code of Civil Procedure, 1908, this Court observed as follows: (SCC p. 303, para 2) 2. A court of first appeal can reappreciate the entire evidence and come to a different conclusion. 15. Again in Jagannath v. Arulappa (2005) 12 SCC 303 , while considering the scope of Section 96 of the Code of Civil Procedure, 1908, this Court observed as follows: (SCC p. 303, para 2) 2. A court of first appeal can reappreciate the entire evidence and come to a different conclusion. 15. Again in B.V. Naaesh v. H.V. Sreenivasa Murthy, (2010) 13 SCC 530 , this Court taking note of all the earlier judgments of this Court reiterated the aforementioned principle with these words: (SCC pp. 530-31, paras 3-5) 3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court 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. 4. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The 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. 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. The 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. ( Vide Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179 , SCC p. 188, para 15 and Madhukar v. Sangram (2001) 4 SCC 756 SCC p. 758 , para 5.) 5. ( Vide Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179 , SCC p. 188, para 15 and Madhukar v. Sangram (2001) 4 SCC 756 SCC p. 758 , para 5.) 5. In view of the above salutary principles, on going through the impugned judgment, we feel that the High Court has failed to discharge the obligation placed on it as a first appellate court. In our view, the judgment under appeal is cryptic and none of the relevant aspects have even been noticed. The appeal has been decided in an unsatisfactory manner. Our careful perusal of the judgment in the regular first appeal shows that it falls short of considerations which are expected from the court of first appeal. Accordingly, without going into the merits of the claim of both parties, we set aside the impugned judgment and decree of the High Court and remand the regular first appeal to the High Court for its fresh disposal in accordance with law. " 14. The points which arise for determination by a court of first appeal must cover all important questions involved in the case and they should not be general and vague. Even though the appellate court would be justified in taking a different view on question of fact that should be done after adverting to the reasons given by the trial judge in arriving at the finding in question. When appellate court agrees with the views of the trial court on evidence, it need not restate effect of evidence or reiterate reasons given by trial court; expression of general agreement with reasons given by trial court would ordinarily suffice. However, when the first appellate court reverses the findings of the trial court, it must record the findings in clear terms explaining how the reasonings of the trial court is erroneous. " 7. Likewise, what would be the proper mode for disposal of first appeal was considered in a fairly recent judgment of the Honble Supreme Court in C. Venkata Swamy versus H.N. Shivanna (dead) by legal representatives and another (2018) 1 SCC 604 , wherein it was observed as undergo. 10. " 7. Likewise, what would be the proper mode for disposal of first appeal was considered in a fairly recent judgment of the Honble Supreme Court in C. Venkata Swamy versus H.N. Shivanna (dead) by legal representatives and another (2018) 1 SCC 604 , wherein it was observed as undergo. 10. The need to remand the case to the High Court has occasioned for the reason that the Single Judge dismissed the appeals very cursorily and without undertaking any appreciation of evidence, dealing with various issues arising in the case and discussing the arguments raised by the parties in support of their case. In other words, the disposal of the two first appeals could not be said to be in conformity with the requirements of Section 96 read with Order 41 Rule 31 of the Code. 11. It is a settled principle of law that a right to file first appeal against the decree under Section 96 of the Code is a valuable legal right of the litigant. The jurisdiction of the first Appellate Court while hearing the first appeal is very wide like that of the Trial Court and it is open to the appellant to attack all findings of fact or/and of law in first appeal. It is the duty of the first Appellate Court to appreciate the entire evidence and arrive at its own independent conclusion, for reasons assigned, either of affirmance or difference. 12. Similarly, the powers of the first Appellate Court while deciding the first appeal are indeed well defined by various judicial pronouncements of this Court and are, therefore, no more res integra . It is apposite to take note of the law on this issue. 13. As far back in 1969, the learned Judge V.R. Krishna Iyer, J (as His Lordship then was the judge of Kerala High Court) while deciding the first appeal under Section 96 of the Code in Kurian Chacko vs. Varkey Ouseph, 1969 AIR(Ker) 316 , reminded the first Appellate Court of its duty to decide the first appeal. In his distinctive style of writing with subtle power of expression, the learned judge held as under: (SCC OnLine Ker paras 1-3) "1. The plaintiff, unsuccessful in two Courts, has come up here aggrieved by the dismissal of his suit which was one for declaration of title and recovery of possession. In his distinctive style of writing with subtle power of expression, the learned judge held as under: (SCC OnLine Ker paras 1-3) "1. The plaintiff, unsuccessful in two Courts, has come up here aggrieved by the dismissal of his suit which was one for declaration of title and recovery of possession. The defendant disputed the plaintiff''s title to the property as also his possession and claimed both in himself. The learned Munsif, who tried the suit, recorded findings against the plaintiff both on title and possession. But, in appeal, the learned Subordinate Judge disposed of the whole matter glibly and briefly, in a few sentences. 2. An appellate court is the final Court of fact ordinarily and therefore a litigant is entitled to a full and fair and independent consideration of the evidence at the appellate stage. Anything less than this is unjust to him and I have no doubt that in the present case the learned Subordinate Judge has fallen far short of what is expected of him as an appellate Court. 3. Although there is furious contest between the counsel for the appellant and for the respondent, they appear to agree with me in this observation " (emphasis supplied) 14. This Court also in various cases reiterated the aforesaid principle and laid down the powers of the Appellate Court under Section 96 of the Code while deciding the first appeal. We consider it apposite to refer to some ofthe decisions. 15. In Santosh Hazari vs. Purushottam Tiwari (Deceased) by L.Rs., (2001) 3 SCC 179 ,this Court held as under ( SCC pp. Pages 188- 189 para 15: "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...." 16. The above view was followed by a three-Judge Bench decision of this Court in Madhukar & Ors. v. Sangram & Ors., (2001) 4 SCC 756 , wherein it was reiterated that sitting as a Court of first appeal, it is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. 17. In H.K.N. Swami v. Irshad Basith, (2005) 10 SCC 243 , this Court stated as under: (SCC p.244, para 3) "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 to 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 recording the finding regarding title." 18. Again in Jagannath v. Arulappa & Anr., (2005) 12 SCC 303 , while considering the scope of Section 96 of the Code, this Court observed as follows (SCC p. 303, para 2): "2. A court of first appeal can reappreciate the entire evidence and come to a different conclusion ..." 19. Again in B. V Nagesh & Anr. vs. H. V. Sreenivasa Murthy, (2010) 13 SCC 530 , this Court taking note of all the earlier judgments of this Court reiterated the aforementioned principle with these words: (SCC pp. 530-31, paras 3-5) "3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court 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. 4. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court 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. 4. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The 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. 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. The 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. (Vide Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179 at p. 188, para 15 and Madhukar v. Sang ram, (2001) 4 SCC 756 at p. 758, para 5.) 5. In view of the above salutary principles, on going through the impugned judgment, we feel that the High Court has failed to discharge the obligation placed on it as a first appellate court. In our view, the judgment under appeal is cryptic and none of the relevant aspects have even been noticed. The appeal has been decided in an unsatisfactory manner. Our careful perusal of the judgment in the regular first appeal shows that it falls short of considerations which are expected from the court of first appeal. Accordingly, without going into the merits of the claim of both parties, we set aside the impugned judgment and decree of the High Court and remand the regular first appeal to the High Court for its fresh disposal in accordance with law." 20. Accordingly, without going into the merits of the claim of both parties, we set aside the impugned judgment and decree of the High Court and remand the regular first appeal to the High Court for its fresh disposal in accordance with law." 20. The aforementioned cases were relied upon by this Court while reiterating the same principle in State Bank of India & Anr. vs. Emmsons International Ltd. & Anr., (2011) 12 SCC 174 and Union of India vs. K. V. Lakshman & Ors., (2016) 13 SCC 124 ." 8. In light of the aforesaid discussion, I have no option, but to allow this appeal and set aside the impugned judgment and decree passed by the learned first appellate Court and remand the case to the Court of learned Additional District Judge (I), Shimla, for deciding the appeal afresh on merits in accordance with law keeping in view the observations made (supra). 9. However, it is made clear that this Court has not made any observation on the merits of the case having formed an opinion to remand the case to the learned first appellate Court. Therefore, the learned first appellate Court shall proceed to decide the appeal uninfluenced by any of the observations in accordance with law. Since, the suit out of which the present appeal arises was filed as far back on 9 th May, 2008, it is requested that the learned first appellate Court shall decide the appeal as expeditiously as possible and in no event later than 31 st December, 2018. 10. The parties, through their counsel(s), are directed to appear before the learned first appellate Court on 10.09.2018. 11. The appeal is allowed in the aforesaid terms, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.