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2018 DIGILAW 679 (ORI)

Sukadev Sahoo v. Benga Dibya

2018-07-20

A.K.RATH

body2018
JUDGMENT Dr. A.K. Rath, J. - Defendant no.1 is the appellant against a reversing judgment. 2. Since the appeal is to be disposed of on a short point, the facts need not be recounted in detail. Suffice it to say that the plaintiff respondent no.1 instituted T.S. No.203 of 1998 in the court of the learned Additional Munsif, Jajpur for declaration that the sale deed dated 21.2.1972 executed by her in favour of the father of the defendant no.1 is a fraudulent one and confirmation of possession over the suit land. The defendants filed a written statement denying the assertions made in the plaint. Parties led evidence, oral and documentary. Learned trial court dismissed the suit holding inter alia that the sale deed is legal and valid. Felt aggrieved, the plaintiff filed T.A. No.44 of 1998 before the learned Additional District Judge, Jajpur, which was allowed. 3. The second appeal was admitted on the substantial question of law enumerated in ground no.C(iv) of the memorandum of appeal. The same is: "(iv) Whether the grounds of reversal assigned by the learned lower appellate court are sustainable in the facts and circumstances of the case and in view of settled position of law ?" 4. Heard Mr. R.K. Kar, learned Advocate for the appellant and Mr. D.P. Mohanty, learned Advocate for the respondents. 5. Mr. Kar, learned Advocate for the appellant, argued with vehemence that the learned lower appellate court has not dealt with all issues. The finding of the learned lower appellate court that the plaintiff is a pardanashin lady and without understanding the contents of the document, she put her L.T.I. in the sale deed is perverse. The sale deed, Ext.A, shows that the contents of the sale deed was read over and explained to the vendor. Thus the matter may be remitted back to the learned lower appellate court. 6. Per contra, Mr. Mohanty, learned Advocate for the respondents, submitted that the learned lower appellate court has passed a reasoned judgment. There is no perversity in the findings of the learned lower appellate court. 7. The scope of interference in an appeal under Section 96 C.P.C. is well known. In Santosh Hazari v. Purushottam Tiwari (deceased) by LRs, , (2001) 3 SCC 179 , the apex Court reminded the duty of the first appellate court. There is no perversity in the findings of the learned lower appellate court. 7. The scope of interference in an appeal under Section 96 C.P.C. is well known. In Santosh Hazari v. Purushottam Tiwari (deceased) by LRs, , (2001) 3 SCC 179 , the apex Court reminded the duty of the first appellate court. The apex Court held: " 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. 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 v. Bijendra Narain Choudhary ). 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. " (Emphasis laid) 8. The apex Court in the case of B.V.Nagesh and another v. H.V. Sreenivasa Murthy, 2010 (13) SCC 530 held: "3. How 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. 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 therein is 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 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 = JT (2001) 2 SC 407 and Madhukar and others v. Sangram and others, (2001) 4 SCC 756 ) 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." 9. First appeal is valuable right of the parties. The whole case is 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. The whole case is 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. It is the duty of the first appellate court to deal with all the issues and the evidence led by the parties before recording the finding regarding title. 10. On the bare reading of the judgment, it reveals that the learned lower appellate court has not dealt with all issues. Learned lower appellate court has not discussed the evidence on record while upsetting the judgment of the learned trial court. 11. A priori, the judgment and decree of the learned lower appellate court are set aside. The matter is remitted back to the learned lower appellate court for de novo hearing. For the said purpose, parties shall appear before the learned lower appellate court on 10.8.2018. Learned lower appellate court shall conclude the hearing of the appeal by end of December, 2018. Since the matter is remitted back to the learned lower appellate court, this Court refrains from answering the substantial questions of law. The appeal is allowed. No costs.