MALLURU MALLAPPA(D) THR. LRS. Vs KURUVATHAPPA & ORS. CIVIL APPEAL NO. 1485 OF 2020 -FEBRUARY 12, 2020.
The bench comprising of Hon’ble justice S. ABDUL NAZEER and SANJIV KHANNA pronounced the judgment.
Fact
The plaintiff filed the above suit against the respondents for specific performance of the agreement to sell. The agreement provided that the sale was to be executed within three years from the date of the agreement, subject to the defendants fulfilling certain obligations. The trial court dismissed the case. The same of was confirmed by High Court the said decree of Trial Court. Plaintiff filed present appeal.
The contention of the Plaintiff is the first appeal filed by the plaintiff under Section 96 of the Code of Civil Procedure, 1908 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. He also argued that suit was filed within the period of limitation. Referring to Article 54 of the Schedule to the Limitation Act, 1963 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.
The contention of the respondent is that; the suit was barred by limitation. He also contented that there was no readiness and willingness in part of the plaintiff to perform his part of the contract.
The court observed that, 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 judgment of the first appellate court must display conscious application of mind and record findings supported by reasons on all issues and contentions.
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. Order XLI Rule 31 of the CPC provides the guidelines for the appellate court to decide the matter. For reference order XL1 Rule 31 of CPC reproduce below; “ 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, therelief 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.”
The court observed, 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 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.
In the present case, 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.
In the result, the appeal succeeds and is accordingly allowed in part. The judgment and decree of the High Court, is set aside and the matter is remanded to the High Court for fresh disposal in accordance with law.
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– Aarthy K
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