Mahendra Singh Chauhan vs Jagdish Lal Shah Gangola & Others

Manoj K. Tiwari, J

This appeal from order has been filed under Section 104 read with Order 43 Rule 1 (u) of C.P.C. against the judgment and order dated 09.09.2016 passed by learned District Judge, Almora in Civil Appeal No. 42 of 2015, whereby the first appeal filed by plaintiff (respondent No. 1 herein) was allowed and the judgment rendered by learned trial court was set aside and the matter was remanded back to learned trial court for its disposal afresh in the light of observations made in the body of the judgment.

Appellant is defendant No. 1 in Original Suit No. 82 of 2013 filed by respondent No. 1 for cancellation of sale deed and permanent prohibitory Injunction. The said suit was partly decreed in favour of plaintiff (respondent No. 1) vide judgment dated 22.09.2015 passed by learned Civil Judge (S.D.), Almora. Dissatisfied with the judgment rendered by learned trial court, plaintiff filed a regular Civil Appeal under Section 96 of C.P.C. before District Judge, Almora, which was registered as Civil Appeal No. 42 of 2015. Defendant No. 1 (appellant herein) filed a cross objection under Section 41 Rule 22 of C.P.C., challenging trial court's finding on issue Nos. 1, 2, 4 & 5. Learned District Judge, Almora allowed the appeal filed by the plaintiff and set aside the judgment rendered by learned trial court and remanded the matter to trial court for decision afresh vide impugned order dated 09.09.2016. However, cross objection filed by the appellant (defendant No. 1 in the suit) was not considered. Thus, feeling aggrieved, defendant No. 1 has filed this appeal.

Heard learned counsel for the parties and perused the record.

Hon'ble Supreme Court in the case of Jagannathan Vs Raju Sigamani & another reported in (2012) 5 SCC 540, has held that an Appeal under Order 43 Rule 1 (u) can only be heard on the grounds a Second Appeal is heard under Section 100 C.P.C.

In view of the dictum of Hon'ble Supreme Court, this Appeal is heard on following two substantial questions of law:

Whether learned first appellate court was justified in deciding the first appeal without considering the cross-objection filed by the appellant/defendant No. 1?

Whether learned first appellate court was justified in deciding the appeal without formulating points for determination in terms of Order 41 Rule 31 of C.P.C.?

It is settled position in law that cross objection is like an Appeal. It has all the trappings of an Appeal. Even when the appeal is withdrawn or is dismissed for default, cross-objection may nevertheless be heard and determined. This aspect has been dealt with by Hon'ble Supreme Court in the case Hari Shankar Rastogi Vs Sham Manohar & others reported in (2005) 3 SCC 761. Relevant extract is reproduced below:-

" 4. The question whether the cross-objections are maintainable, even when the appeal has been withdrawn was considered by this Court in Superintending Engineer v. B. Subba Reddy. After considering various Judgments, it was held as follows: (SCC pp 433-34, para 23)

"23. From the examination of these judgments and the provisions of Section 41 of the Act and Order 41 Rule 22 of the Code, in our view, the following principles emerge:

(1) Appeal is a substantive right. It is a creation of the statute. Right to appeal does not exist unless it is specifically conferred.

(2) Cross-objection is like an appeal. It has all the trappings of an appeal. It is filed in the form of memorandum and the provisions of Rule 1 of Order 41 of the Code, so far as these relate to the form and contents of the memorandum of appeal apply to cross-objection as well.

(3) Court fee is payable on cross-objection like that on the memorandum of appeal. Provisions relating to appeals by an indigent person also apply to cross-objection.

(4) Even where the appeal is withdrawn or is dismissed for default, cross-objection may nevertheless be heard and determined.

(5) The respondent even though he has not appealed may support the decree on any other ground but if he wants to modify it, he has to file cross-objection to the decree which objections he could have taken earlier by filing an appeal. Time for filing objection which is in the nature of appeal is extended by one month after service of notice on him of the day fixed for hearing the appeal. This time could also be extended by the court like in appeal.

(6) Cross-objection is nothing but an appeal, a cross-appeal at that. It may be that the respondent wanted to give a quietus to the whole litigation by his accepting the judgment and decree and order even if it was partly against his interest. When, however, the other party challenged the same by filing an appeal the statute gave the respondent a second chance to file an appeal by way of cross-objection if he still felt aggrieved by the judgment and decree or order."

Thus, it is clear that cross objection is like an appeal. It has all the trappings of an Appeal. Even when the appeal is withdrawn or is dismissed, cross-objection can still be heard and determined.

On behalf of the respondents, reliance was placed upon the authority of this Court in Municipal Corpn. of Delhi v. International Security and Intelligence Agency Ltd. However, in our view this authority does not lay down any contrary proposition. In the Judgment, it has also been held that right to prefer cross-objection partakes of the right to prefer an Appeal. It has been held that a party may rest content by partial success with a view to giving a quietus to the litigation. However, if he finds that the other party is not interested in burying the hatchet, then he may also like to exercise his right of appeal which he may do by filing cross-objections. It has been held that the substantive right is the right of appeal and the form of cross-objection is merely a matter of procedure."

A perusal of the impugned judgment reveals that the cross-objection filed by defendant No. 1 (appellant herein) has not been dealt with at all by learned District Judge, Almora, while remanding the matter to learned trial court. Deciding the Appeal without deciding the cross-objection is a serious infirmity which goes to the root of the matter.

A coordinate Bench of this Court in Second Appeal No. 66 of 2018 in its judgment dated 03.08.2018 has emphasized that cross objection is to be decided simultaneously while deciding the Appeal. Para 8 to 10 of the said judgment are extracted below:-

"8. Against the judgment & decree, aggrieved parties have a right to prefer an Appeal. Order 41 Rule 22 of the Code of Civil Procedure provides for filing of the cross-objections. Cross-objections have been equated with Cross-Appeal for all particular purposes. If two Appeals are filed against one judgment & decree by different parties, then both the Appeals should be clubbed together and decided together. Similarly, if cross objection is filed by either of the parties in an Appeal, the Court is supposed to decide the Appeal as well as cross objection simultaneously. Different Appeals filed against the same judgment & decree are to be decided together; otherwise, if different Appeals are decided at different stages, then, in that event, there might be all possibility of Court's taking different view in different Appeals. Similar is the situation in the case where cross-objection is filed in the pending Appeal.

In my view, the learned IInd Additional District Judge, Dehradun, while deciding the Appeal, should have decided the cross-objection simultaneously, which has not been done. The learned IInd Additional District Judge, Dehradun has erred in law in not deciding the cross objection.

Consequently, the question framed by this Court is answered in affirmative. The Second Appeal is allowed. Impugned judgment is set-aside. The matter is remanded back to the lower Appellate Court for deciding the Appeal as well as cross-objection filed by the appellants afresh. The Appeal as well as cross-objection filed by the appellants shall be decided within a period of two months from the date of production of a certified copy of this judgment."

In view of the aforesaid legal position, this Court has no hesitation in holding that learned First Appellate Court was not justified in deciding the First Appeal without adverting to the cross-objection filed by the appellant and the cross-objection ought to have been decided while deciding the First Appeal.

The impugned judgment is unsustainable for another reason, namely non compliance of Order 41 Rule 31 C.P.C. The First Appellate Court is under a duty to formulate points for determination and judgment of the Appellate Court must indicate its decision on each point for determination. The first appellate Court is the final court of facts. The judgment of said Court must therefore reflect court's application of mind.

Hon'ble Supreme Court in the case of C. Venkata Swamy Vs H.N. Shivanna & another reported in (2018) 1 SCC 604, has held as under:-

"17. In H.K.N. Swami v. Irshad Basith, this Court stated as under: (SCC p. 244, para 3)

"3. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title."

Again in Jagannath v. Arulappa, while considering the scope of Section 96 of the Code, this Court observed as follows: (SCC p 303, para 2)

"2. A court of first appeal can reappreciate the entire evidence and come to a different conclusion........."

Again in B.V Nagesh & Anr. v. H.V. Sreenivasa Murthy, 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;

(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 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, at p. 188, para 15 and Madhukar v. Sangram, at p. 758, para 5.)

In view of the above salutary principles, on going through the impugned judgment, we feel that the High Court has failed to discharge the obligation placed on it as a first appellate court. In our view, the judgment under appeal is cryptic and none of the relevant aspects have even been noticed. The appeal has been decided in an unsatisfactory manner. Our careful perusal of the judgment in the regular first appeal shows that it falls short of considerations which are expected from the court of first appeal. Accordingly, without going into the merits of the claim of both parties, we set aside the impugned judgment and decree of the High Court and remand the regular first appeal to the High Court for its fresh disposal in accordance with law.""

Similarly in the case of G. Saraswathi & another Vs Rathinammal & others reported in (2018) 3 SCC 340 has held as under:-

"9. Indeed, in the absence of any application of judicial mind to the factual and legal controversy involved in the appeal and further without even mentioning the factual narration of the case set up by the parties, the findings of the two courts as to how they dealt with the issues arising in the case in their respective jurisdiction and without there being any discussion, appreciation, reasoning and categorical findings on the issues and why the findings of two Courts below deserve to be upheld or reversed, while dealing with the arguments of the parties in the light of legal principles applicable to the case, it is difficult for this Court to sustain such order of the Division Bench. In our opinion, the disposal of the LPA by the Division Bench of the High Court cannot be said to be in conformity with the requirements of Order 41 Rule 31 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code")."

Time and again, this Court has emphasized on the courts the need to pass reasoned order in every case which must contain the narration of the bare facts of the case of the parties to the lis, the issues arising the case, the submissions urged by the parties, the legal principles applicable to the issues involved and the reasons in support of the findings on all the issues in support of its conclusion. It is really unfortunate that the Division Bench failed to keep in mind this principle while disposing of the appeal and passed a cryptic and unreasoned order. Such order undoubtedly caused prejudice to the parties because it deprived them to know the reasons as to why one party has won and other has lost. We can never countenance the manner in which such order was passed by the High Court which has compelled us to remand the matter to the High Court for deciding the appeal afresh on merits."

In the case of Santosh Hazari Vs Purshottam Tiwari reported in (2001) 3 SCC 179, Hon'ble Supreme Court has discussed the manner in which the first appellate court should hear and decide the appeal. Para 15 of the said judgment is extracted below:-

"A perusal of the judgment of the trial Court shows that it has extensively dealt with the oral and documentary evidence adduced by the parties for deciding the issues on which the parties went to trial. It also found that in support of his plea of adverse possession on the disputed land, the defendant did not produce any documentary evidence while the oral evidence adduced by the defendant was conflicting in nature and hence unworthy of reliance. The first appellate court has, in a very cryptic manner, reversed the finding on question of possession and dispossession as alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. The appellate court has jurisdiction to reverse or affirm the findings of the trial Court. 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. The task of an appellate court affirming the findings of the trial court is an easier one. The appellate court agreeing with the view of the trial court need not restate the effect of the evidence or reiterate the reasons given by the trial court; expression of general agreement with reasons given by the court, decision of which is under appeal, would ordinarily suffice (See Girijanandini Devi & Ors. v. Bijendra Narain Choudhary). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate court for shirking the duty cast on it. While writing a judgment of reversal the appellate court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact. (See Madhusudan Das v. Narayanibai). The rule is - and it is nothing more than a rule of practice - that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate court should not interfere with the finding of the trial Judge on a question of fact. (See Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh). Secondly, while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it. We need only remind the first appellate courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate court continues, as before, to be a final court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate court is also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate court even on questions of law unless such question of law be a substantial one."

A bare perusal of the judgment rendered by learned District Judge, Almora reveals that points for determination were not framed as required under Order 41 Rule 31 of C.P.C. Moreover, there is no discussion regarding legal issues involved in the matter. Even otherwise also, no reasoning has been given by learned first appellate court for setting aside the judgment rendered by learned trial court.

For the aforesaid reasons, impugned judgment rendered by learned District Judge, Almora cannot be sustained. Accordingly, appeal from order is allowed and the impugned judgment dated 09.09.2016 rendered by learned District Judge, Almora is set aside. The matter is remanded back to learned District Judge, Almora to decide the appeal filed by plaintiff (respondent No. 1) along with cross-objection filed by the defendant (appellant herein) in accordance with law.