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2018 DIGILAW 653 (HP)

Ajay Kuthiala v. Maria Enterprises

2018-04-16

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J —Looking to the nature of the order I propose to pass, it is not necessary to delve in detail the facts of the case. 2. Suffice it to state that the plaintiff-appellant filed a suit for recovery of Rs. 64, 200/- against the defendants on the ground that the same was advanced as friendly loan to defendant No.1 through defendant No.2 as defendant No.1 was in dire need of money. The defendants contested this claim by filing written statement wherein they denied the averments made in the plaint. 3. Learned trial court framed the following issues on 19.8.2014: 1. "Whether plaintiff has given friendly loan of Rs. 54, 000 to the defendant, as alleged? OPP 2. Whether the plaintiff is entitled for the recovery of Rs. 64, 200/- alongwith interest from the defendant as prayed for ? OPP 3. Whether the suit is not maintainable, as alleged? OPD 4. Whether suit is bad for non-joinder of necessary parties, as alleged? OPD 5. Whether suit is barred by limitation, as alleged? OPD 6. Whether this court has no jurisdiction to try and decide the present suit, as alleged? OPD 7. Relief." 4. After recording the evidence and evaluating the same, learned trial court decreed the suit. However, the said judgment and decree was reversed by the Additional District Judge in an appeal having been preferred by the respondents herein. 5. Aggrieved by the judgment and decree passed by the learned first appellate court, the plaintiffappellant has filed the instant appeal on the various grounds taken in the memo of parties. 6. I have heard the learned counsel for the parties and have gone through the material placed on record. 7. A bare perusal of the judgment passed by the learned first appellate court goes to indicate that it has not at all adverted to the findings recorded by the trial court much less discussed the same. Therefore, it cannot be said that the judgment so passed has been passed with due application of mind. 8. It is more than settled that while reversing a finding of fact the appellate court must come into close quarter with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. It is only then that it can be said that the first appellate court has discharged the duty expected of it. It is only then that it can be said that the first appellate court has discharged the duty expected of it. 9. The scope, ambit and power of the first appellate court while deciding the first appeal has been subject matter of various judicial pronouncements and only I need to refer to the judgment of the Hon''ble Supreme Court in C. Venkata Swamy vs H.N Shivanna (dead) by LR and another , (2018) 1 SCC 604 , wherein it was held as under: "[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(Kerala) 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: "1. In his distinctive style of writing with subtle power of expression, the learned judge held as under: "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 .." [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 of the decisions. [15] In Santosh Hazari vs. Purushottam Tiwari (Deceased) by L.Rs. , (2001) 3 SCC 179 , this Court held (at pages 188-189) as under: "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 (at p. 244) stated as under: (SCC 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 (at pp. 303-04) observed as follows: "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: "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. Sangram , (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. 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] 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 . 10. Reverting back to the findings of the first appellate court, noticeably, the findings of the trial court have been reversed only on the basis of the reasoning as contained in paras 31 and 32, which read thus: "31. In the case in hand, the plaintiff has not presented the cheque Ex.PW-1/B for encashment to be drawn in the Vijaya Bank, The Mall, Shimla within a period of limitation as required under the Negotiable Instruments Act and has also failed to establish that the said cheque was issued by the defendants for discharge of any debt or other liability. The plaintiff has also not established on record by adducing any cogent and convincing evidence that any amount of Rs. 54, 000/- was lend to the defendants. In view of such evidence, I am of the view that the plaintiff is not entitle to recover said alleged loan amount from the defendants. The learned trial court has wrongly proceeded to decide the matter merely on the basis of issuing of said cheque by the defendants without appreciating the fact that as to whether the same was issued towards any discharge of any debut or any enforceable legal liability. 32. For the foregoing reasons and findings as mentioned above, this court arrives at an inescapable conclusion that the learned trial court has not appreciated the pleadings, evidence and law in its right and proper perspective. 32. For the foregoing reasons and findings as mentioned above, this court arrives at an inescapable conclusion that the learned trial court has not appreciated the pleadings, evidence and law in its right and proper perspective. The impugned judgment and decree dated 30.11.2015, are based on incorrect appreciation of facts and law and deserves to be set aside and the same is set aside. The impugned judgment and decree call for interference from this court. Consequently, both these points are answered in affirmative." 11. It would be evident from the above extract that the learned first appellate court has not at all come into close quarter with the reasoning assigned by the trial court but has simply chosen to write a separate judgment. 12. Having failed to do so, the judgment and decree passed by the learned first appellate court cannot be countenanced and sustained. Therefore, this Court is left with no other option but to set aside the said judgment and decree and remand the matter for decision afresh. Ordered accordingly. 13. The parties, through their counsel(s) , are directed to appear before the learned first appellate court on 1.5.2018. The first appellate court is requested to decide the case as expeditiously as possible and in no event later than 30th June, 2018. The appeal is disposed of in the aforesaid terms.