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Supreme Court of India
Malluru Mallappa(D) Thr. Lrs vs Kuruvathappa on 12 February, 2020Author: S. Abdul Nazeer
Bench: R. Banumathi, S. Abdul Nazeer, A.S. Bopanna
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1485 OF 2020
[Arising out of SLP(C) No.18092 of 2014]
MALLURU MALLAPPA(D) THR. LRS. … APPELLANT(S)
VERSUS
KURUVATHAPPA & ORS. … RESPONDENTS
JUDGMENT
S. ABDUL NAZEER, J.
1. Delay condoned. Leave granted.
2. This is the plaintiff’s appeal challenging the judgment and decree in RFA
No.1731 of 2006 dated 09.02.2012 passed by the High Court of Karnataka at
Bangalore, whereby the High Court has confirmed the judgment and decree
passed by the trial court in O.S. No. 32 of 2005 dated 09.06.2006.
3. The plaintiff filed the above suit against the respondents/defendants for
specific performance of the agreement to sell dated 30.3.2000. The agreement
provided that the sale was to be executed within three years from the date of the
Signature Not Verified
Digitally signed by
agreement, subject to the defendants fulfilling certain obligations.
MADHU BALA
Date: 2020.02.12
16:54:14 IST
Reason:
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4. Defendant No.1 filed the written statement and the other defendants filed
a memo adopting the same as their written statement. Defendant No.1 admitted
the execution of the agreement to sell in favour of the plaintiff. However, the
defendant pleaded that the suit was barred by limitation. It was further
contended that plaintiff was not ready and willing to perform his part of the
contract.
5. Based upon the rival pleadings of the parties, the trial court framed the
following issues: –
“1.Whether the plaintiff proves that, the defendants 1 and 2 their
father have executed an agreement to sell on 30.3.2000 for
Rs.2,00,000/- in favour of the plaintiff after receiving
Rs.1,50,000/- as earnest money?
2. Whether the plaintiff proves that, he is always ready and
willing to perform his part of contract?
3. Whether the suit of the plaintiff is barred by limitation?
4. What order or decree?”
6. The plaintiff got himself examined as PW-1 and Ex. P-1, P1(a) to (c)
were marked in his evidence. The defendant No.1 was examined as DW1 and
three other witnesses were examined as DW-2 to 4. On appreciation of the
evidence on record, the trial court held that the suit was barred by time. It was
also held that the plaintiff was not ready and willing to perform his part of the
contract. The suit was accordingly dismissed.
7. As noticed above, the High Court has confirmed the said decree of the
trial court.
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8. We have heard Shri S.N. Bhat, learned counsel for the appellant/plaintiff.
Though notice was served on the respondents, no one has entered appearance on
their behalf.
9. Shri Bhat, learned counsel, has made two-fold submissions. Firstly, he
submits that the High Court has passed a cryptic judgment without
reappreciating the evidence on record. It was argued that the first appeal filed
by the plaintiff under Section 96 of the Code of Civil Procedure, 1908 (for short
‘the CPC’) was a continuation of the suit and it was incumbent upon the High
Court to reassess the entire evidence on record. It was argued that the High
Court as an appellate court has failed to follow the guidelines provided under
Order XLI Rule 31 of the CPC while deciding the appeal. Secondly, it was
argued that the agreement to sell was dated 30.03.2000, providing for three
years’ time from the date of the agreement to complete the execution of the sale
deed. The suit was filed on 28.01.2005 which was well within time. Referring
to Article 54 of the Schedule to the Limitation Act, 1963, (for short ‘the
Limitation Act’) it was submitted that when a date is fixed for performance of
the contract, the period of limitation for filing the suit is three years from the
date fixed for the performance. It was further argued that there is no finding by
the High Court as to the readiness and willingness of the plaintiff to perform his
part of the contract.
10. We have carefully considered the submission of the learned counsel made
at the Bar and perused the materials placed on record.
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11. Section 96 of the CPC provides for filing of an appeal from the decree
passed by any court exercising original jurisdiction to the court authorized to
hear the appeals from the decisions of such courts. In the instant case, the
appeal from the decree passed by the trial court lies to the High Court. The
expression ‘appeal’ has not been defined in the CPC. Black’s Law Dictionary
(7th Edn.) defines an appeal as “a proceeding undertaken to have a decision
reconsidered by bringing it to a higher authority.” It is a judicial examination of
the decision by a higher court of the decision of a subordinate court to rectify
any possible error in the order under appeal. The law provides the remedy of an
appeal because of the recognition that those manning the judicial tiers too
commit errors.
12. In Hari Shankar v. Rao Girdhari Lal Chowdhury 1 it was held that a
right of appeal carries with it a right of re-hearing on law as well as on fact,
unless the statute conferring a right of appeal limits the re-hearing in some way
as has been done in second appeal arising under the CPC.
13. In Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat2
it was held thus:
5. ……….. In the well known work of Story on
Constitution (of United States), Vol. 2, Article 1761, it is
stated that the essential criterion of appellate jurisdiction is
that it revises and corrects the proceedings in a cause
already instituted and does not create that cause. The
appellate jurisdiction may be exercised in a variety of forms
and, indeed, in any form in which the Legislature may
1
AIR 1963 SC 698
2
1969 (2) SCC 74
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choose to prescribe. According to Article 1762 the most
usual modes of exercising appellate jurisdiction, at least
those which are most known in the United States, are by a
writ of error, or by an appeal, or by some process of
removal of a suit from an inferior tribunal. An appeal is a
process of civil law origin and removes a cause, entirely
subjecting the fact as well as the law, to a review and a
retrial…….”
14. It is a settled position of law that an appeal is a continuation of the
proceedings of the original court. Ordinarily, the appellate jurisdiction involves
a re-hearing on law as well as on fact and is invoked by an aggrieved person.
The first appeal is a valuable right of the appellant and therein all questions of
fact and law decided by the trial court are open for re-consideration. Therefore,
the first appellate court is required to address itself to all the issues and decide
the case by giving reasons. The court of first appeal must record its findings
only after dealing with all issues of law as well as fact and with the evidence,
oral as well as documentary, led by the parties. The judgment of the first
appellate court must display conscious application of mind and record findings
supported by reasons on all issues and contentions [see: Santosh Hazari v.
Purushottam Tiwari (Deceased) By Lrs.3, Madhukar and others v. Sangram
and Others4, B. M. Narayana Gowda v. Shanthamma (Dead) By Lrs. and
Another5, H. K. N. Swami v. Irshad Basith (Dead) By Lrs.6 and M/s. Sri
Raja Lakshmi Dyeing Works v. Rangaswamy Chettiar7].
3
(2001) 3 SCC 179
4
(2001) 4 SCC 756
5
(2011) 15 SCC 476
6
(2005) 10 SCC 243
7
(1980) 4 SCC 259
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15. A first appeal under Section 96 of the CPC is entirely different from a
second appeal under Section 100. Section 100 expressly bars second appeal
unless a question of law is involved in a case and the question of law so
involved is substantial in nature.
16. Order XLI Rule 31 of the CPC provides the guidelines for the appellate
court to decide the matter. For ready reference Order XLI Rule 31 of the CPC
is as under: –
“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 it is pronounced be signed and dated by the
Judge or by the Judges concurring therein.”
17. In Vinod Kumar v. Gangadhar8 this Court has reiterated the principles
to be borne in mind while disposing of a first appeal, as under:-
“15. Again in B.V. Nagesh v. H.V. Sreenivasa Murthy [(2010) 13
SCC 530 : (2010) 4 SCC (Civ) 808] , 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;
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(2015) 1 SCC 391
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(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 : (2001) 1 SCR 948] , SCC
p. 188, para 15 and Madhukar v. Sangram [(2001) 4
SCC 756] SCC p. 758, para 5.)”
18. In Shasidhar and Ors. v. Ashwani Uma Mathad and Anr.9, it was held
as under:-
“21. Being the first appellate court, it was, therefore, the
duty of the High Court to decide the first appeal keeping in
view the scope and powers conferred on it under Section 96
read with Order 41 Rule 31 of the Code mentioned above. It
was unfortunately not done, thereby, causing prejudice to
the appellants whose valuable right to prosecute the first
appeal on facts and law was adversely affected which, in
turn, deprived them of a hearing in the appeal in accordance
with law.”
19. It is clear from the above provisions and the decisions of this Court that
the judgment of the first appellate court has to set out points for determination,
record the decision thereon and give its own reasons. Even when the first
appellate court affirms the judgment of the trial court, it is required to comply
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(2015) 11 SCC 269
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with the requirement of Order XLI Rule 31 and non-observance of this
requirement leads to infirmity in the judgment of the first appellate court. No
doubt, when 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 trial
court. Expression of a general agreement with the reasons given by the trial
court would ordinarily suffice.
20. Keeping in mind the above principles, let us examine the present case. As
stated above, the issue relating to readiness and willingness of the plaintiff to
perform his part of the contract and issue relating to limitation were held against
the plaintiff and the suit was accordingly dismissed. The appeal before the High
Court involved both disputed questions of law and fact. The High Court
without examination of any of these aspects has dismissed the appeal by a
cryptic order. The court below has neither reappreciated the evidence of the
parties, nor it has passed a reasoned order. The High Court has failed to follow
the provisions of Order XLI Rule 31 of the CPC while deciding the appeal. Mr.
Bhat has argued that the suit was well within time under Article 54 of the
Schedule to the Limitation Act. Even this question has not been examined in its
proper perspective.
21. In the result, the appeal succeeds and is accordingly allowed in part. The
judgment and decree of the High Court in RFA No.1731 of 2006 dated
09.02.2012, is set aside and the matter is remanded to the High Court for fresh
disposal in accordance with law.
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22. All the contentions of the parties are left open. There will be no order as
to costs.
…………………………J.
(S. ABDUL NAZEER)
.…………………………J.
(SANJIV KHANNA)
New Delhi;
February 12, 2020.
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