Kumarachar vs Sri. S.N. Yughadhara and another

A.N. Venugopala Gowda, J. - O.S. No. 57/2002, filed by the respondents against the appellant was decreed on 20.09.2013, in part, by the Trial Court. Compensation of Rs. 20,000/- was directed to be paid by the defendant to the plaintiffs.

Feeling aggrieved, the plaintiffs filed R.A. No. 83/2013 and the defendant filed R.A. No. 95/2013, in the Court of Senior Civil Judge, Channarayapatna. By a judgment dated 02.02.2015, R.A. No. 83/2013 was allowed and the suit was decreed in its entirety. As a consequence, R.A. No. 95/2013 was dismissed. Assailing the said decrees, these appeals were filed.

There being delay in filing RSA No. 107/2016, I.A.No. 1/2016 was filed for condonation. Since, RSA No. 590/2015 was filed within the prescribed period, there being a bona fide mistake in not filing the appeal, in respect of the other part of the decree, RSA No. 107/2016 was filed and there is delay. The delay having occurred on account of a mistake on the part of the learned advocate for the appellant and being satisfied with the cause shown, the delay is condoned.

Heard the learned counsel on both sides and perused the record. The substantial question of law that arises for consideration is, whether the Lower Appellate Court has decided all the issues arising in the appeals, both on facts and law, after appreciating the entire evidence and whether the judgment passed is in accordance with Order 41, Rule 31 , CPC''?

Sri. R.G. Halesha, learned advocate while assailing the legality of the impugned judgments/decrees contended that the court below without adverting to all the factual details and the grounds raised in the appeal/s, has decided the appeal/s in a cryptic manner. Learned counsel submitted that the Court below has neither appreciated the ocular and documentary evidence in the correct perspective nor examined the principles applicable to the issues arising in the case. He submitted that the finding recorded on the contention issues is perverse. He submitted that the entire record has not been appreciated and there is jurisdictional error committed, which has rendered the judgment and decree of the Lower Appellate Court unsustainable.

Sri. Venkatesh R. Bhagat, learned advocate for the respondents, however, supported the impugned judgments and decrees and submitted that no case exists for interference, in exercise of the power under Section 100, CPC.

Having considered the rival contentions with reference to the aforesaid substantial question of law, I find merit in the submission made by the learned advocate for the appellant.

The plaintiffs, were successful in part, in the Trial Court. They being aggrieved by the relief granted, filed R.A. No. 83/2013. The defendant being aggrieved by the decree for payment of compensation of Rs. 20,000/-, filed R.A. No. 95/2013. The First Appellate Court by referring to the proceedings in O.S. No.93/1987, R.A. No. 59/1996 and RSA No.28/2000, has held that there being a municipal galli in between the properties, the right, title and interest and the boundaries as contended by the plaintiffs, is established. The other evidence brought on record of the suit by both parties has not been appreciated. The points raised for consideration are general in nature.

The Appellate Court, is the final court of fact. The scope of its jurisdiction has been explained by the Apex Court, in Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179, which decision was followed in the case of Madhukar and Ors. v. Sangram and Ors., (2001) 4 SCC 756. It has been held that, the First Appellate Court has a duty to deal with all the issues and evidence lead by the parties before recording its findings. The said view has been reiterated in the subsequent decision by the Apex Court, in the cases of, (i) H.K.N. Swami v. Irshad Basith, (2005) 10 SCC 243, (ii) Jagannath v. Arulappa, (2005) 12 SCC 303 and (iii) B.V. Nagesh and Anr. v. H.V. Sreenivasa Murthy, (2010) 13 SCC 530.

Appeal having been filed under Section % r/w Order 41, Rule 1 , CPC, the court below has the legal obligation to decide the issues arising in the case, both on facts and law, after appreciating the entire evidence. The same has not been done in the present case.

This Court, in Ligakath Ali Khan v. Sri. Syed Wazeed and others, ILR 2012 Kar 2035, examining the scope of Section 96 and Order 41, Rule 31 , CPC, held as follows:

"18. Section 96 of the Code provides the right of an appeal. Order 41, Rule 31 of the Code provides 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 point/s which have been formulated for consideration. 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."

The judgment and decree passed by the court below, impugned in these appeals, suffers from the same infirmity, as was pointed out by this Court, in the case of Ligakath Ali Khan (supra).

Order 41, Rule 31 , CPC, requires that the judgment shall contain a concise statement of the case, points for determination, decisions thereon and the reasons. The impugned judgment and decree passed by the Court below being not in conformity with the said provision and the ratio of law in the decisions, noticed supra, is unsustainable.

In the result, the appeals are allowed in part and the common judgment dated 02.02.2015, passed in R.A. Nos. 83/2013 and 95/2013, by the Senior Civil Judge, Channarayapatna, is set aside. The appeals having not been decided in accordance with law, the case is remanded to the Lower Appellate Court, to decide the same by keeping in view the observations made supra.

Both the parties are directed to appear before the Lower Appellate Court on 19.03.2016 and receive further orders. The appeals shall be decided with expedition and before 30.04.2016.

Sri. Venkatesh R. Bhagat, is permitted to file vakalath in the Registry i.e., in respect of RSA No. 107/2016, within the period of four weeks.