B.M. Krishnappa vs K.V. Sriramappa

A.N. Venugopala Gowda, J.—The plaintiff in a suit for specific performance of the contract has filed (his second appeal. Suit was instituted with reference to an agreement of sale dated 04.03.1989, to direct the defendant to execute the registered sale deed in respect of the suit schedule property. Suit having been contested by filing the written statement, the issues were raised. Later, finding that the issues raised to be not in proper order, were recasted as follows:

Whether the plaintiff proves that the defendant agreed to sell the suit schedule property and hence he is executed agreement of sale on 4.3.1999?

Whether the plaintiff further proves that in spite of demand and legal notice issued to the defendant he failed to execute the Registered Sale Deed as per agreement of sale?

Whether the plaintiff is ready and willing to get the Registered Sale Deed in his favour?

Whether the defendants proves that he has not executed any agreement of sale as alleged by the plaintiff?

Whether the defendant further proves that the suit of the plaintiff is barred by limitation and there is no specific averments pleaded as per Section 16 of Specific Relief Act?

Whether the plaintiff is entitled for specific enforcement of contract as prayed?

What order or decree?

Plaintiff got examined himself as PW1 and examined three witnesses as PWs.2 to 4 and marked seven documents as Exs.P1 to P7. The defendant got himself examined as DW1 and also examined three witnesses as DWs.2 to 4 and marked five documents as P.xs.D 1 to D5. The Trial Judge having regard to the submissions made by the learned advocates appearing for the parties, found the suit to he devoid of merit and passed a decree of dismissal. Assailing the said decree, an appeal under Section 96 of CPC was filed. The Lower Appellate Court raised general points for consideration and dismissed the appeal. Assailing t he said decrees, this second appeal was filed.

Sri. G. Papi Reddy, learned advocate for the appellant, in support of the appeal raised various contentions. It is unnecessary to refer to all the contentions. The main contention was with reference to the judgment of the Court below being not in consonance with the requirements of Order 41, Rule 31 of CPC.

Sri. T. Narayana Swamy, learned advocate for the respondent, on the other hand, attempted to support the judgment passed by the Lower Appellate Court. Learned counsel submitted that the entire case having been slated and the decree passed being one of affirmation, the judgment passed by the Trial Court is justifiable.

Having regard to the rival contentions and the record of the case, the substantial question of law for consideration is:

Whether the First Appellate Court has followed the fundamental rules governing exercise of its jurisdiction under Section 96 of CPC., by keeping in view the provisions under Order 41, Rule 31 of CPC?

With the consent of learned counsel on both sides, the appeal is taken up for final hearing.

Heard learned counsel on the substantial question of law.

The Lower Appellate Court Judge has narrated the pleadings and has merely listed the decisions on which reliance was placed by the learned advocates appearing for the parties. The point raised for consideration is, whether the impugned judgment and decree is illegal, perverse, arbitrary, erroneous and not based on the principles of law and calls for interference.

The said point, without appreciation of the record of the suit i.e., with reference lo the rival contentions, was answered in the second half of Para 19 of the judgment. Even though the judgment passed by the Lower Appellate Court runs to about 19 pages, there is mere narration and not appreciation of the material placed on record of the suit by the parties. The Lower Appellate Court being the final Court of fact has the obligation to appreciate the cases of the parties, both on questions of fact and law. A perusal of the impugned judgment does not show the Lower Appellate Court having discharged its duty in conformity with law i.e., with reference to the requirement shown in Order 41, Rule 31 of CPC.

In Ligakath Ali Khan v. Sri. Syed Wazeed and others reported in ILR 2012 Kar 2035, after reference to the catena of decisions of the Apex Court, it was held, that Section 96 of CPC provides right of an appeal and Order 41, Rule 33 of CPC provides the guidelines for the Appellate Court as to how it has to proceed and decide the appeal. The First Appellate Court should independently assess the relevant evidence on all the important aspects of the case and record findings on the points raised for consideration. Being the final Court of facts, the First Appellate Court must assign reasons for its decision on the points formulated for consideration. It was emphasised that the first appeal being a valuable right and the parties having been conferred with right to be heard both on questions of fact and law, the judgment in the first appeal must address all the issues of law and fact and decide the appeal by giving reasons in support of the findings.

A perusal of the judgment passed by the Lower Appellate Court, impugned in this appeal, makes it clear that it has failed to follow the fundamental rules governing the exercise of its jurisdiction under Section 96 of CPC and decide the appeal as per the guidelines under Order 41, Rule 31 of CPC. It has not even raised proper points for consideration nor has appreciated the material brought on record of the suit by the parties. Hence, the judgment passed in RA No. 6/2010 on 20.04.2011 by the Court below being vitiated, is unsustainable.

In the result, the appeal is allowed and the judgment and decree dated 20.04.2011 passed in RA No. 6/2010 by the III Additional Senior Civil Judge, Kolar, intenerating at Mulbagal, is set-aside. RA No. 6/2010 having not been decided in accordance with law, is restored for consideration and decision afresh.

In order to expedite the hearing of the case, both parties are directed to appear before the Senior Civil Judge Court at Mulbagal, on 30.04.2016 and receive orders. The Lower Appellate Court is directed to decide the appeal with expedition and before 31.08.2016.

Neither of the parties shall seek any unnecessary adjournment.

All the contentions of both parties are left open.

Registry shall forthwith return both the LCRs to the Court of Senior Civil Judge at Mulbagal.