Dec
5
2017


C. Venkata Swamy vs H.N. Shivanna(D) by L.R. & Anr. Etc.

Decided on 04.12.17 Supreme Court

 

Facts: Appellant in this case was the original Plaintiff and had filed a suit for Declaration and Permanent Injunction and the Respondent had also filed a cross suit against the Appellant. The suit of the plaintiff was dismissed and that of the defendant decreed. Two appeals were filed by the by the Appellant/ original Plaintiff but the Single Judge dismissed both the first appeals and affirmed the judgment/decree of the Trial Court, which gave rise to the filing of the present appeals by special leave.

SC Verdict: Remand the matter back to HC.

The need to remand the case to the High Court was occasioned for the reason that the Single Judge dismissed the appeals very cursorily and without undertaking any appreciation of evidence, In other words, the disposal of the two first appeals could not be said to be in conformity with the requirements of Section 96 read with Order 41 Rule 31 of the Code.

A right to file first appeal against the decree under Section 96 of the Code is a valuable legal right of the litigant. The jurisdiction of the first Appellate Court while hearing the first appeal is very wide like that of the Trial Court and it is open to the appellant to attack all findings of fact or/and of law in first appealIt is the duty of the first Appellate Court to appreciate the entire evidence and arrive at its own independent conclusion, for reasons assigned, either of affirmance or difference.

 

Cases quoted with approval: Kurian Chacko vs. Varkey Ouseph, AIR 1969 Kerala 316

An appellate court is the final Court of fact ordinarily and therefore a litigant is entitled to a full and fair and independent consideration of the evidence at the appellate stage. Anything less than this is unjust.

 

Santosh Hazari vs. Purushottam Tiwari (Deceased) by L.Rs. (2001) 3 SCC 179

“.........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......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............”

 

H.K.N. Swami v. Irshad Basith,(2005) 10 SCC 243

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, (2001) 3 SCC 179 at p. 188, para 15 and Madhukar v. Sangram, (2001) 4 SCC 756 at p. 758, para 5.) 








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