Ajay Bhanot, J.:— Heard Sri. Bipin Bihari, learned counsel for the appellant and Sri. Sudhir Kumar Shukla, learned counsel for the respondent.
2. Sri. Bipin Bihari, learned counsel for the appellant submits that the appellant does not press the appeal against the defendant respondent nos. 1 and 2 and their legal heirs/legal representatives. It was informed at the Bar that the defendant-respondent nos. 1 and 2 have expired.
3. This second appeal arises out of the judgment and decree dated 29.11.1995 entered by the learned Additional District Judge-V, Ballia in Civil Appeal No. 363 of 1988, which has affirmed the judgment and decree dated 30.09.1988 rendered by the learned Munsif-VI, Ballia in Original Suit No. 622 of 1985, Bhagirathi v. Ram Chandra.
4. The sole appellant Bhagirathi expired during the pendency of the appeal and was substituted by his legal heirs/legal representatives arrayed as A1/1 Basant Ram, A1/2 Ganesh Ram, A1/3 Ganpati Ram and A1/4 Yadunandan Ram. The appellant was the plaintiff in Original Suit No. 622 of 1985 before the learned Additional Musnsil VI, Ballia.
5. The plaintiff-appellant had instituted a civil suit for permanent injunction against the defendant-respondent. The plaint stated that the plaintiff-appellant was in settled possession and had an undisputed title over the property in dispute. The property in dispute devolved upon the plaintiff-appellant by inheritance from his ancestors.
6. A written statement was filed on behalf of defendants respondents no. 4, 6 and 8 who resisted the claim of the plaintiff-appellant.
7. The trial court determined all the issues framed and dismissed the suit of the plaintiff-appellant by judgement and decree rendered on 30.09.1988.
8. The plaintiff-appellant took the judgment and decree of the trial court dated 30.09.1988 in appeal.
9. The appeal was instituted as Civil Appeal No. 363 of 1988, Bhagirathi v. Ramchander. The judgement of the appellate court dated 29.11.1995, records the issues framed by the trial court for determination. The appellate court judgement only catalogues the nomenclature of the documentary evidences tendered by the rival parties and then mentions the names of the witnesses of both the parties. The appellate court notices the fact that the trial court had found issue nos. 1, 2 and 3 against the appellant. Thereon, after merely referencing the results of the findings of the trial court on issue nos. 1, 2 & 8, the appellate court records its agreement with the judgment of the trial court.
10. The judgment of the appellate court fails to advert to grounds in the memo of appeal and is deviod of any consideration of arguments raised by the counsels. With such cryptic conclusions and without independent findings on any issue, the appellate court affirmed the judgement and decree entered by the learned trial court.
11. In light of the established position of facts and with consent of the learned counsels, the substantial question of law is being framed.
12. The substantial question of law which arises for consideration is ‘Whether the judgment of the learned appellate court was consistent with the provisions of Order 41 Rule 31 of Code of Civil Procedure, and if not, the consequences thereof?’
13. To interpret the provisions of Order 41 Rule 31 CPC, first the scope and purpose of an appeal and the powers of an appellate court have to be understood. Appeal is a proceeding where the lis is removed from the court of earlier instance (the trial court) and placed before the appellate court. The appellate court rehears the entire lis. The appellate court can affirm the findings, modify the findings or interdict the findings of the trial court. Appeal is a continuation of the suit. The appellate court can interfere with the findings of fact or intervene on questions of law. The appellate court is the last court of facts. Appeal is a creature of the statute. The right of appeal is a statutory right.
14. The scope and purpose of appeals as well as the powers of the appellate courts have been defined with clarity by good judicial authority. Reference to such authorities at the later stage would fortify the narrative.
15. With the scope of the appeal and the powers of an appellate court, thus settled, let us move to Order 41 Rule 31 C.P.C. The provisions of Order 41 Rule 31 C.P.C. is extracted hereunder for ease of reference.
31. Contents, date and signature of Judgement
The judgement 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.
16. Order 41 Rule 31 provides for structuring of the judgment of the appellate court. The purpose of the provision is not for to seek.
17. Defining the points for determination in the appeal, prior to entering the judgment, assists the appellate court to achieve its purpose. The provision ensures that the appellate court is seized of all the relevant issues in dispute.
18. The identification of points for determination serves many purposes. Identification of issues relevant to the appeal, permits the parties to address the appellate court on the same. The appellate court can identify with ease, the faultlines in the judgment of the learned trial court as perceived by an aggrieved party. It also enables the appellate court to return independent findings on all matters which are germane to the controversy.
19. Cumulatively, the structuring of the judgment in the manner contemplated under Order 41 Rule 31 C.P.C., prevents miscarriage of justice, by ensuring full and conscious application of mind and appropriate findings on all relevant issues in controversy. This precludes the possibility of judicial oversight or “non application of mind”, on any issue relevant to the controversy by which the appellant is aggrieved.
20. The obligation of the appellate court, to clearly identify the issues which are posed for determination and return independent findings thereon, is imperative. Though the form in which the points for determination are framed not of material significance.
21. The provisions of Order 41 Rule 31 fell for consideration before the Hon'ble Supreme Court on more than one occasion. The authority in point is long but largely consistent.
22. It would be apposite to support the narrative with reference to some case law in point.
23. The Hon'ble Supreme Court in the case of Santosh Hazari v. Purushottam Tiwari (Dead), reported at (2001) 3 SCC 179, considered the amplitude of jurisdiction and the scope of powers of the court of first appeal under Section 96 C.P.C. by holding thus:
“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.”
24. The Hon'ble Supreme Court in the case of Santosh Hazari (supra), also delineated the judgments of an appellate court in two categories. The first set of judgments, as in the instant case, was where the appellate court affirmed the judgment of the trial court and agreed with its findings. The second set of judgments, was where the appellate court disagreed, with the findings of the trial court, and after reversing the same, quashed the judgment of the trial court.
25. In the first category of cases, the Hon'ble Supreme Court in Santosh Hazari (supra), reiterated the position of law wherein the appellate court being an agreement with the view of the trial court, is not required to restate the effect of evidence or reiterate the reasons given by the trial court.
26. In such a situation, the Hon'ble Supreme Court in the case of Santosh Hazari (supra) after referencing the past authority in point found that “expression of general agreement with reasons given by the court, decision of which is under appeal, would ordinarily suffice”. However, the Hon'ble Supreme Court cautioned, that the appellate court cannot abdicate its responsibilities in the guise of being in agreement with the trial court, by holding thus:
“15..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.”
27. The Hon'ble Supreme Court in the case of Santosh Hazari (supra) further undertook the task of outlining the well settled functions of the appellate court by observing thus:
“15…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.”
28. The Hon'ble Supreme Court in the case of Madhukar v. Sangram, reported at (2001) 4 SCC 756, noticing the cryptic findings returned by the appellate court found that it amounts to a failure of the first appellate court.
29. The Hon'ble Supreme Court in the case of Madhukar (supra), exposed the faultlines in the judgment of the appellate court in detail. Having found that the judgment of the appellate court was silent on the evidence led before the trial court, the Hon'ble Supreme Court held thus:
“5. We have carefully perused the judgment and decree of the High Court in the first appeal. We find that substantial documentary evidence had been placed before the trial court including certified copies of certain public records besides copy of the judgment and decree of the earlier suit (OS No. 93 of 1971). Oral evidence had also been led by the parties before the trial court which was noticed and appreciated by the trial court. However, the impugned judgment in the first appeal is singularly silent of any discussion either of documentary evidence or oral evidence. Not only that, we find that though the trial court had dismissed the suit on the ground of limitation as also on the ground that the decision in the earlier suit (OS No. 93 of 1971) operated as res judicata against Defendant 1 only, the High Court has not even considered, much less discussed the correctness of either of the two grounds on which the trial court had dismissed the suit. 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.”
30. The power coupled with the duty of the appellate court to decide the issues questions of law as well as issues of facts, was reiterated by the Hon'ble Supreme Court in the case of H.K.N Swami v. Irshad Basith (Dead) By Lrs. . Basith, reported at (2005) 10 SCC 243, by observing thus:
“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. The order of the High Court is cryptic and the same is without assigning any reason.”
31. Order 41 Rule 31 C.P.C. also fell for consideration before the Hon'ble Supreme Court in the case of B.V. Nagesh v. H.V. Sreenivasa Murthy, reported at (2010) 13 SCC 530. The Hon'ble Supreme Court considering the ambit of the aforesaid provision ruled as under:
“2. The impugned judgment passed by the High Court arose out of regular first appeal filed under Section 96 CPC. It is the grievance of the appellants that the High Court, without adverting to all the factual details and various grounds raised, disposed of the appeal in a cryptic manner. In the light of the above assertion, we verified the impugned judgment of the High Court. The High Court, after narrating the pleadings of both the parties, without framing points for determination and considering both facts and law set aside the judgment and decree of the trial court and modified the same without proper discussion and assigning adequate reasons.
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 : JT (2001) 2 SC 407], 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.
6. Inasmuch as the first appeal is pending from 2003, we request the High Court to dispose of the same as expeditiously as possible. The civil appeal is disposed of accordingly.
32. While construing Order 41 Rule 31 C.P.C., the Hon'ble Supreme Court in the case of H. Siddiqui (Dead) By Lrs. v. A. Ramalingam ., reported at (2011) 4 SCC 240 insisted on substantial compliance of the aforesaid provision. The Hon'ble Supreme Court in the case of H. Siddiqui (supra) held that the appellate court was obligated by law “to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points”. The duty of the appellate court to simply record a general expression of concurrence with the trial court, as laid down in the case of Santosh Hazari (supra), was slightly deviated from in H. Siddiqui (supra). The Hon'ble Supreme Court in the case of H. Siddiqui (supra) cast an onerous duty on the appellate court which is reproduced below:
“21. The said provisions provide guidelines for the appellate court as to how the court has to proceed and decide the case. The provisions should be read in such a way as to require that the various particulars mentioned therein should be taken into consideration. Thus, it must be evident from the judgment of the appellate court that the court has properly appreciated the facts/evidence, applied its mind and decided the case considering the material on record. It would amount to substantial compliance of the said provisions if the appellate court's judgment is based on the independent assessment of the relevant evidence on all important aspect of the matter and the findings of the appellate court are well founded and quite convincing. It is mandatory for the appellate court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final court of fact, the first appellate court must not record mere general expression of concurrence with the trial court judgment rather it must give reasons for its decision on each point independently to that of the trial court. Thus, the entire evidence must be considered and discussed in detail. Such exercise should be done after formulating the points for consideration in terms of the said provisions and the court must proceed in adherence to the requirements of the said statutory provisions.”
33. The effect of failure of an appellate court to deal with the submissions raised by the counsels and to turn a blind eye to the grounds taken in the memo of appeal, on the validity of the judgment came up for consideration squarely in the case of Vinod Kumar v. Gangadhar ., reported at (2015) 1 SCC 391. The Hon'ble Supreme Court after considering the past authority in point observed as under:
17. Applying the aforesaid principle to the facts of the case, we find that the High Court while deciding the first appeal failed to keep the principle in consideration and rendered the impugned decision. Indeed, it is clear by mere reading of para 4 of the impugned order quoted below: “After hearing learned counsel for the parties and going through the evidence, I do not find any justification to throw over board findings recorded by the trial court. After due appreciation of evidence, I do not find any merit and substance in this appeal. Same stands dismissed with costs. Counsel fee Rs. 1000/-, if certified. Ordered accordingly.”
18. In our considered opinion, the High Court did not deal with any of the submissions urged by the appellant and/or respondent nor it took note of the grounds taken by the appellant in grounds of appeal nor made any attempt to appreciate the evidence adduced by the parties in the light of the settled legal principles and decided case law applicable to the issues arising in the case with a view to find out as to whether judgment of the trial court can be sustained or not and if so, how, and if not, why?
19 Being the first appellate court, it was the duty of the High Court to have decided the first appeal keeping in view the scope and powers conferred on it under Section 96 read with Order 41 Rule 31 ibid mentioned above. It was unfortunately not done, thereby, resulting in causing prejudice to the appellant whose valuable right to prosecute in the first appeal on facts and law was adversely affected which, in turn, deprived him of a hearing in the appeal in accordance with law. It is for this reason, we are unable to uphold the impugned judgment of the High Court.”
34. The imperative need of an appellate court to exercise its powers and discharge its obligations in light of the powers conferred upon it by statute, was emphasized by the Hon'ble Supreme Court in the case of Uttar Pradesh State Road Transport Corporation v. Mamta, reported at (2016) 4 SCC 172 by observing as under:
“24. As observed supra, as a first appellate Court, it was the duty of the High Court to have decided the appeal keeping in view the powers conferred on it by the statute. The impugned judgment also does not, in our opinion, satisfy the requirements of Order XX Rule 4 (2) read with Order XLI Rule 31 of the Code which requires that judgment shall contain a concise statement of the case, points for determination, decisions thereon and the reasons. It is for this reason, we are unable to uphold the impugned judgment of the High Court.”
35. The settled but salutary principles of the powers and the duties of the appellate court were in issue before the Hon'ble Supreme Court in the case of Laliteshwar Prasad Singh v. S.P. Srivastava (Dead) Thru. Legal Representatives, reported at (2017) 2 SCC 415. The Hon'ble Supreme Court laid down the law as follows:
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.”
36. To sum up, the form or the format in which the points for determination are framed, is not decisive. However, in substance the judgment of the appellate court, should clearly identify the points which arise for determination and return its independent findings thereon.
37. The tenor and content of the judgment of the appellate court has been discussed earlier. The appellate court in its judgment dated 29.11.1995, has failed to discharge its obligation to law, enumerated in the preceding Para graphs. The appellate court abdicated its duties in the guise of agreement with the judgement of the trial court. The judgment of the learned appellate court dated 29.11.1995, cannot stand, being contrary to law and the judicial authorities in point, referenced in the preceding part of the judgment.
38. The answer to the substantial question of law is as follows:
39. The judgment of the learned appellate court is not only inconsistent with the provisions of Order 41 Rule 31 CPC, but has led to a fatal miscarriage of justice and is unsustainable in law.
39. The judgment and decree dated 29.11.1995, entered by the learned Additional District Judge-V, Ballia in Civil Appeal No. 363 of 1988 is set aside.
40. The matter is remitted to the learned first appellate court, for a fresh decision in accordance with law, and consistent with the observations made above. The first appellate court, shall decide the appeal, within a period of three months, from the date of receipt of a certified copy of this order.
41. The second appeal is allowed in the above terms.
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