M. Basavarajappa and Others vs Bovi Rangappa and Others

A.V. Chandrashekara, J.—Heard the learned counsel for the appellants. The respondents have been duly served and remain unrepresented.

This Regular Second Appeal is preferred under Section-100 of the Code of Civil Procedure by the Plaintiffs against Judgment and decree dated 30.10.2006 passed by the Principal Civil Judge (Senior Division) Davanagere in R.A. No. 314/2005, reversing the Judgment and decree dated 26.07.2005 passed by the Principal Civil Judge (Junior Division) in O.S. No. 11/1998, decreeing the suit for specific performance of contract. For the purpose of brevity and convenience, the parties are referred to as per their rank in the suit before the court below.

Briefly stated, the facts of the case are: The deceased original defendant had executed an agreements of sell dated 07.03.1978 and 08.08.1982 agreeing to execute regular sale deed in respect of 0.12 guntas of land in Survey No. 96 for sale consideration of Rs. 8000/- and received an advance amount of Rs. 3,500/- and later on Rs. 4500/- was received in 1982. It was agreed by the defendant to execute regular sale deed in favour of the plaintiffs after getting katha changed into his name. In spite of several demands, the deceased defendant did not execute the sale deed and hence, legal notice was got issued, calling upon him to execute the sale deed. In spite of receipt of notice, the defendant neither replied nor came forward to execute the sale deed and, therefore, the plaintiffs were constrained to file suit for specific performance of contract.

The defendant entered appearance and filed his written statement denying the entire material allegation and even the execution of the agreement of sale and about readiness and willingness and that the trial court has no pecuniary jurisdiction to try the suit. According to the defendant, the plaintiff was not entitle to any relief whatsoever. He further contended that the suit was also barred by limitation.

On the basis of the pleadings of the respective parties, the trial court framed the following issues:

i) Whether plaintiff proves that the defendant has executed the agreement to sell dated 07.03.1978 and 08.08.1982 agreeing to sell the suit schedule property in his favour?

ii) Whether plaintiff proves that he is ever ready and willing to perform his part of the contract?

iii) Whether defendants prove that the plaintiff has created false documents?

iv) Whether defendants prove that this Court has no pecuniary jurisdiction to try this suit?

v) Whether the plaintiff is entitle to the reliefs sought for in the plaint?

In support of his case, the original plaintiff is examined as PW. 1 and one Venakatarao, the scribe to the agreement as PW. 2 and 6 exhibits have been got marked. On behalf of the defendant, three witnesses were examined and one exhibit was got marked.

Ultimately, suit came to be decreed, directing the legal representatives of the original defendant to execute the regular sale deed in favour of the plaintiff, vide Judgment dated 26.07.2005. The said judgment and decree was challenged by filing an appeal under Order-41 Rule-1 read with Section-96 of the Code of Civil Procedure in RA. No. 314/2005 before the Principal Civil Judge (Senior Division) at Davanagere. After contest, the said appeal came to be allowed by framing the following points for consideration, as found in paragraph-9 of the Judgment:

i) Whether the Judgment and decree passed by the trial Court is perverse, capricious and arbitrary and it calls for any interference by this Court?

ii) Whether the respondent No. 1/plaintiff made over grounds to allow IA. No. 3?

Being aggrieved by the divergent judgment passed by the divergent judgment passed by the Courts below, the legal representatives of the original plaintiffs have preferred the present appeal. By order dated 17.12.2007, while admitting the appeal, this Court formulated the following substantial question of law for consideration:

"Whether the learned Appellate Judge was justified in reversing the Judgment and decree of the trial Court without considering the evidence?"

The first appellate Court is a very important link in the hierarchical chain because the first appellate Court is the last Court of fact finding. It is, therefore, obligatory upon the first appellate Court, being final Court of fact finding, to meet with the reasoning of the trial Court and to indicate its own reasons for the conclusion which it might arrive at. In order to reassess the entire oral and documentary evidence, the first appellate Court is expected to frame proper and valid points as to the following facts (i) the points for determination, (ii) the decision thereon, (iii) the reasons for the decision, and (iv) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled, as held by the Apex Court in the case of Santosh Hazari Vs. Purushottam Tiwai (Dead) by Lrs., . It is also the duty of the first appellate Court to reassess the entire oral and documentary evidence if the first appellate Court intends to upturn a judgment of the trial Court, it has to assign proper reasons indicating where the trial Court has gone wrong and what exactly should be the exact approach, while reversing the Judgment passed by the trial Court. It is just and necessary to extract Order-XLI Rule-31 of the CPC which reads thus:

"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."

The principles enumerated in Order-XLI Rule-31 are mandatory in nature. Unless the proper points for consideration are framed, the first appellate Court cannot reassess the oral and documentary evidence on record. In the case of B.V. Nagesh and Another Vs. H.V. Sreenivasa Murthy, , the Hon''ble Apex Court, while discussing the mandatory provisions of Order-41 Rule-31 , has succinctly reiterated that without framing proper points for determination and considering both facts and law and without proper discussion and assigning reasons, first appellate court cannot set aside the judgment and decree of the trial Court. It is held as per the facts of the said case, the appellate Court (High Court) has failed to discharge obligation placed on it as first appellate Court and remanded the matter to the first appellate Court for fresh disposal.

In the case on hand, in order to prove agreement of sale entered into between the plaintiffs and defendant, the plaintiff has got marked two agreement of sale as Exhibits. P. 1 & P. 2. The plaintiff and independent witness who is the scribe of the same are examined. While finding fault with issue No. 1, the first appellate Court has held that there are certain discrepancies in the agreement of sale and the trial Court has not looked into the same. In fact, as many as 13 grounds have been raised in the first appeal filed under Section-96 of the CPC. In ground No. 6, specific reference has been made in regarding proving of Ex. P. 1 & P. 2 and the first appellate Court ought to have discussed about these important documents on the basis of which, the suit was filed. If such an exercise were to be made, the first appellate Court should have formulated points for consideration. Even the question of limitation has not been taken into consideration by the first appellate Court, since the suit was filed in the year 1998, though the agreements of sale relate to the year 1978 and 1982. In this view of the matter, this Court is of the considered view that the first appellate Court has not considered the entire evidence in right perspective by formulating appropriate points based on relevant grounds raised in the appeal memo filed under Section-96 of CPC, a comprehensive question of law. Consequently, the appeal will have to be allowed and the matter requires to be remitted to the first appellate Court for fresh decision.

Accordingly, the appeal is allowed in part. The impugned Judgment dated 30.10.2006 passed by the Principal Civil Judge (Senior Division) at Davanagere in R.A. No. 314/2005 is set aside. The matter is remitted to the first appellate Court for a fresh decision after adhering to the principles enunciated by the Hon''ble Apex Court in B.V. Nagesh''s case cited supra, by framing necessary points for determination inclusive of the one relating to the limitation. Since, the matter is of the year 2005, the learned judge of the first appellate Court shall make an endeavor to dispose of the appeal expeditiously.

The appellant is entitled for refund of the Court fee, as per the provisions of the Karnataka Court Fee and Suit valuation Act.