U. Manjunath Rao vs U. Chandrashekar & Anr.

The challenge in this appeal, by special leave, is to the

legal acceptability of the judgment and decree dated

06.06.2014 passed by the High Court of Karnataka at

Bangalore in Regular First Appeal No. 1626 of 2010

whereby the learned single Judge has declined to interfere

in the appeal preferred by the first defendant questioning

the defensibility of the judgment and decree dated

21.06.2010 passed by the learned XXVIII Additional City

Civil Judge, Mayohall, Bangalore in O.S. No. 16950 of 2004.

The narration of facts as is evincible from the

impugned judgment are that the first defendant was

aggrieved as he was directed by the trial Court to execute a

rectification deed in respect of property description No. 2 in

B-schedule in the partition deed dated 01.04.1981 which

was registered on 28.07.1981 and brought on record as

Ex.P-1 and further granted permanent injunction

restraining the defendants from interfering with the

possession of the plaintiff in respect of the property in

question. It was contended before the High Court that the

trial Court had erred in law in decreeing the suit as the

registered deed of partition had not been proved in

accordance with law and further the schedule property

formed part of the joint family property. That apart, it was

urged that the said property was purchased by the

defendant No. 1 from his own sources and his name had

been recorded in the record of rights and there was no

material on record to come to a conclusion that there

existed a joint family which possessed sufficient nucleus to

purchase the schedule property. A ground was taken that

the partition deed had not seen the light of the day for more

than 22 years and when its genuineness was questioned on

the basis of materials brought on record, the said issue had

not been appositely addressed.

The High Court, as the impugned judgment reveals,

noted some of the contentions and posed the question

whether the trial Court was justified in directing the

defendants to execute a rectification deed to correct the

error in stating the site number in the partition deed dated

01.04.1981 marked in evidence as Ex.P-1. It took note of

the fact that in the said partition deed site No. 25, which

was allotted to the plaintiff, was erroneously described as

site No. 35 and hence, relief of the rectification of the error

in the deed had been granted by the trial Court. Thereafter

the learned single Judge, as is vivid, copiously quoted from

the judgment of the trial Court and held that he did not find

any infirmities in the findings recorded by the trial Court

and certain documents brought on record showed that the

plaintiff was in possession of the site No. 25. On the

aforesaid basis, the High Court dismissed the appeal

preferred by the defendant No. 1.

Despite service of notice, there has been no

appearance on behalf of the respondents.

We have heard Mr. R.S. Hegde, learned counsel for the

appellant. Criticising the judgment, he has submitted that

the High Court has dismissed the first appeal without

appreciating the oral and documentary evidence brought on

record and further not adverting to the assailment by the

appellant therein as regards the findings recorded by the

trial Court. It is canvassed by him that when the plaintiff

had not adduced any evidence to prove the existence of the

joint family, the question of placing reliance on the deed of

partition presuming that the property in dispute was a joint

family property and, therefore, the partition deed required to

be rectified as an error has been crept in, is absolutely

fallacious. Learned counsel would submit that quoting from

the trial Court judgment and confirming the same in a

cryptic manner is not a lawful delineation of the first appeal

preferred under Section 96 of the Code of Civil Procedure

(CPC) and, therefore, the impugned judgment can be

stamped as an unreasoned one and should be set aside with

a direction to the High Court to dispose of the appeal on

appreciation of facts and the law in correct perspective.

To appreciate the submissions of Mr. Hegde, we have

perused the impugned judgment passed by the High Court.

It is clearly demonstrable that the High Court has neither

analysed the evidence brought on record nor has it

answered the issues raised in law. Stating the facts and

thereafter reproducing few passages from the trial Court

and ultimately referring to certain exhibited documents in a

cryptic manner, we are disposed to think, will not convert

an unreasoned judgment to a reasoned one. In fact, as we

notice, the learned Judge has posed the question about the

defensibility of the ultimate direction by the trial Court and

thereafter proceeded to quote paragraphs from the trial

Court judgment. Posing a question which is relevant for

adjudication of the appeal is not enough. There has to have

been proper analysis of the same. That apart, there are

other issues they deserved to be dealt with. Therefore, the

obvious conclusion is that the judgment passed by the High

Court is not a reasoned one.

It is well settled in law that the reason is the life of law.

It is that filament that injects soul to the judgment. Absence

of analysis not only evinces non-application of mind but

mummifies the core spirit of the judgment. A Judge has to

constantly remind himself that absence of reason in the

process of adjudication makes the ultimate decision

pregnable. While dealing with the first appeal preferred

under Section 96 CPC, the Court in State of Rajasthan v.

Harphool Singh (dead) through his LRs, (2000) 5 SCC 652 took note of the

exception to the judgment passed by the first appellate

court by observing that there was no due or proper

application of mind or any critical analysis or objective

consideration of the matter, despite the same being the first

appellate court.

A three-Judge Bench in Santosh Hazari v.

Purushottam Tiwari (deceased) by LRs, (2001) 3 SCC 179, while discussing

about power of the first appellate court, has opined that it is

the final court of facts and, therefore, pure findings of fact

remain immune from challenge before the High Court in

second appeal. It is necessary to note that the Court had

also held thus:

" 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 v. Bijendra Narain Choudhary, AIR 1967 SC 1124 ). 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. "

[Emphasis supplied]

The aforesaid passage has to be appositely understood.

While reversing the finding and conclusions of the trial

Court, the duty of the first appellate court is different than

while affirming a judgment. Be it stated, the Court has also

held that it is 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 is a substantial one. In the

said case, the Court, after referring to the decision in Sarju

Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain

Singh, AIR 1951 SC 120, has further opined that:

" 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 purpose of referring to the said decision is to

highlight the responsibility cast on the first appellate court

or a court hearing the first appeal.

In Madhukar and others v. Sangram and others, (2001) 4 SCC 756,

the Court noticed that the High Court has framed two

questions and thereafter had set aside the judgment and

decree of the trial court and allowed the first appeal.

Discussing about the duty of the first appellate court, the

Court had referred to the decision in Santosh Hazari

(supra) and reiterated the principles stated therein.

In H.K.N. Swami v. Irshad Basith (dead) by LRs, (2005) 10 SCC 243,

the two-Judge Bench ruled:

''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. The order of the High Court is cryptic and the same is without assigning any reason.''

The said principle has been reiterated in State Bank

of India and another v. Emmsons International Limited

and another, (2011) 12 SCC 174. Thus, in the first appeal the parties have

right to be heard both on the questions of facts as well as on law and the first appellate court is required to address itself

to all the aspects and decide the case by ascribing reasons.

In this context, we may usefully refer to Order XLI Rule

31 CPC which reads as follows:

Order XLI. Appeals from Original Decrees

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,

and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.''

On a perusal of the said Rule, it is quite clear that the

judgment of the appellate court has to state the reasons for

the decision. It is necessary to make it clear that the

approach of the first appellate court while affirming the

judgment of the trial Court and reversing the same is

founded on different parameters as per the judgments of

this Court. In Girijanandini Devi (supra), the Court ruled

that while agreeing with the view of the trial court on the

evidence, it is not necessary to restate the effect of the

evidence or reiterate the reasons given by the trial court.

Expression of general agreement with reasons given in the

trial court judgment which is under appeal should

ordinarily suffice. The same has been accepted by another

three-Judge Bench in Santosh Hazari (supra). However,

while stating the law, the Court has opined that expression

of general agreement with the findings recorded in the

judgment under appeal should not be a device or

camouflage to be adopted by the appellate court for shirking

the duty cast on it. We are disposed to think, the expression

of the said opinion has to be understood in proper

perspective. By no stretch of imagination it can be stated

that the first appellate court can quote passages from the

trial court judgment and thereafter pen few lines and

express the view that there is no reason to differ with the

trial Court judgment. That is not the statement of law

expressed by the Court. The statement of law made in

Santosh Hazari (supra) has to be borne in mind.

In this regard, a three-Judge Bench decision in Asha

Devi v. Dukhi Sao and another, AIR 1974 SC 2048 is worthy of noticing,

although the context was different. In the said case, the

question arose with regard to power of the Division Bench

hearing a Letters Patent appeal from the judgment of the

single Judge in a first appeal. The Court held that the

Letters Patent appeal lies both on questions of fact and law.

The purpose of referring to the said decision is only to show

that when the Letters Patent appeal did lie, it was not

restricted to the questions of law. The appellant could raise

issues pertaining to facts and appreciation of evidence. This

is indicative of the fact that the first appellate court has a

defined role and its judgment should show application of

mind and reflect the reasons on the basis of which it agrees

with the trial Court. There has to be an ''expression of

opinion'' in the proper sense of the said phrase. It cannot be

said that mere concurrence meets the requirement of law.

Needless to say, it is one thing to state that the appeal is

without any substance and it is another thing to elucidate,

analyse and arrive at the conclusion that the appeal is

devoid of merit.

In the case at hand, as we have noted earlier, the

learned Judge has really not ascribed any reason. There

has been no analysis of facts or law. There is no discussion

with regard to the points urged. While agreeing with the

general approval of reasons to support the conclusions of

the judgment in appeal, the High Court has to keep in view

the language employed in Order XLI Rule 31 CPC and the

view expressed in Santosh Hazari (supra). Analysis and

reason are to be manifest. When that is not done, needless

to say, the judgment of the High Court becomes

indefensible.

In view of the aforesaid premises, we allow the appeal,

set aside the impugned judgment and decree passed by the

High Court and remit the matter for fresh disposal in

accordance with law. The High Court is requested to dispose

of the appeal within six months. There shall be no order as

to costs.