Yalagouda @ Neelagouda Iragouda Patil vs Laxman Rama Pujari

A.N. Venugopala Gowda, J.—This second appeal under section 100, C.P.C. is by the defendants in O.S. No. 202/1999 on the file of the Addl, Civil Judge (Jr. Dn.) Raibag and the respondents in R.A. No. 929/2009 on the file of Fast Track Court - I and Addl. Sessions Judge, Belgaum.

Suit was instituted to pass decree of permanent and mandatory injunctions against the defendants. Written statement having been filed, the issues were raised. Trial having taken place, considering the rival contentions and after appreciation of the record, the suit was dismissed with compensatory cost by the Trial Court.

The unsuccessful plaintiff filed appeal under section 96, C.P.C. in the Dist. Court at Belgaum. The appeal was assigned to the Fast Track Court for consideration and decision. The points raised for consideration being relevant are extracted herein below :

(1) Whether the appellant proves that the Lower Court has passed Judgment vexatiously, illegally and not based on the principles of justice and equity and interference at the hands of the Appellate Court is required?

(2) What order?

Point No. (1) was answered partly in the affirmative and the appeal was allowed in part and the impugned Judgment and Decree was set aside. The suit was decreed in part and defendants were restrained from interfering with the peaceful possession and enjoyment of the suit property by the plaintiff. The defendants were further restrained from letting bathroom and latrine water in the suit schedule property and also from parking their vehicles or keeping any agricultural instruments.

Assailing the said Judgment and Decree, this appeal was filed.

The appeal was admitted to consider the following substantial question of law :

"Whether the Judgment and Decree passed by the lower Appellate Court on 18.1.2010 in R.A. No. 929/2009 is perverse and illegal?"

Smt. Hemalekha K.S., learned advocate contended that while reversing the Judgment and decree of the Trial Court, the lower Appellate Court has not addressed to all the issues of facts and law and its findings suffer from grave errors. She submitted that the lower Appellate Court while allowing the appeal has not given any reason and has committed jurisdictional error in allowing the appeal, resulting in decreeing of the suit. She submitted that there is absence of any discussion and the appeal has not been considered in accordance with law, particularly, Order 20, Rule 4 (2) and Rule 5 read with Order 41, Rule 31 of C.P.C. and hence interference is called for.

Sri. M.C. Hukkeri, learned Advocate, on the other hand, supported the impugned Judgment and submitted that there being credible evidence placed on the record of the suit, the impugned Judgment and Decree is sustainable.

How a first appeal is to be decided has been made clear by the Apex Court in catena of decisions vide :

(i) Santosh Haszari v. Purushottam Tiwari (Dead) by L.Rs., AIR 2001 SC 965 : (2001) 251 ITR 84 (SC) : (2001) 3 SCC 179.

(ii) Madhukar and others v. Sangram and others, AIR 2001 SC 2171 : (2001) 4 SCC 756.

(iii) H.K.N. Swami v. Irshad Basith (Dead) by L.Rs., (2005) 10 SCC 243.

(iv) Rama Pulp and Papers Limited v. Maruti N. Dhotre, (2005) 12 SCC 186 and

(v) B.V. Nagesh and another v. H.V. Sreenivasa Murthy, 2011 (2) Kar LJ 577 (SC) : (2010) 13 SCC 530 : AIR (2010) SCW 6184.

In Shashidhar and others v. Smt. Ashwini Uma Mathad and another, 2015 (148) AIC 145 (SC) : 2015 (109) ALR 720 : AIR (2015) SC 1139 : (2015) 11 SCC 269. Apex Court has held that appeal under section 96, C.P.C. is a valuable right of parties and has to be decided on questions of law and of fact and that there should be fair and independent consideration of evidence. It has been further held that the First Appellate Court should deal with all the issues and the evidence adduced by parties before recording its findings and the Judgment rendered must reflect conscious application of mind and reasons must be assigned for recording of the findings. It has been emphasised that, if the First Appellate Court reverses the finding of the Trial Court, then, it has to assign its own reason for such conclusions.

Section 96, C.P.C. provides the right of an appeal. Order 41, Rule 31 , C.P.C. provides guidelines to the First Appellate Court as to how it has to proceed and decide the appeal. The First Appellate Court should independently assess and record findings on the points raised for consideration. In the present case, the lower Appellate Court has not even raised appropriate points for consideration nor has independently assessed the evidence and recorded the findings. Being the final Court of facts, the First Appellant Court must assign its reasons on the points formulated for consideration i.e., by addressing all the issues of law and fact. In the present case, the Judgment passed by the Court below does not satisfy the requirements indicated in Order 20, Rule 4 (2) and Rule 5 read with Order 41, Rule 31 , C.P.C. and in the circumstances, there is no option than to remand the case to the lower Appellate Court for consideration afresh.

Keeping in view the said principles of law and on perusal of the impugned Judgment, it is clear that the lower Appellate Court has failed to follow the fundamental rules governing the exercise of its jurisdiction under section 96, C.P.C. and decide the appeal as per the guidelines under Order 41, Rule 31 , C.P.C. Thus the impugned Judgment being flawed and vitiated, cannot be sustained.

In the result, the appeal is allowed and the impugned Judgment and Decree is set aside. R.A. No. 929 of 2009 is restored to the file of the District Court at Belgaum for consideration and decision afresh by keeping in view the observations made supra and in accordance with law and within a period of six months.

Both parties are directed to appear before the lower Appellate Court on 25.6.2016 and receive further orders.