Code of Civil Procedure, 1908 – ss.96, 100 and Or.XLI, r.31 – Appellant-plaintiff filed suit against respondents-defendants for specific performance of agreement to sell – Defendant no.1 pleaded that the suit was barred by limitation and that the plaintiff was not ready and willing to perform his part of the contract – Suit dismissed – Confirmed by High Court – Held: s.96 provides for filing of an appeal from the decree passed by any court exercising original jurisdiction to the court authorized to hear the appeals from the decisions of such courts – In the instant case, the appeal from the decree passed by the trial court lies to High Court – An appeal is a continuation of the proceedings of the original court – Ordinarily, the appellate jurisdiction involves re-hearing on law as well as on fact and is invoked by an aggrieved person – First appeal is a valuable right of the appellant wherein all questions of fact and law decided by the trial court are open for re-consideration – A first appeal u/s.96 is entirely different from a second appeal u/s.100 – s.100 expressly bars second appeal unless a question of law is involved in a case and the question of law so involved is substantial in nature – In the present case, issue relating to readiness and willingness of the plaintiff to perform his part of the contract and limitation were held against him and the suit was dismissed – Appeal before High Court involved both disputed questions of law and fact – Without examination of any of these aspects it dismissed the appeal by a cryptic order – High Court failed to follow the provisions of Or.XLI, r.31 while deciding the appeal – Judgment set aside – Matter remanded to High Court for fresh disposal in accordance with law – Limitation Act, 1963 – Article 54 of the Schedule.
Words & Expressions – ‘appeal’ – Meaning of – Held: Expression ‘appeal’ has not been defined in CPC – It is a judicial examination of the decision by a higher court of the decision of a subordinate court to rectify any possible error in the order under appeal – Code of Civil Procedure, 1908 – s.96. Partly allowing the appeal, the Court
HELD: 1.1 Section 96 of the CPC provides for filing of an appeal from the decree passed by any court exercising original jurisdiction to the court authorized to hear the appeals from the decisions of such courts. In the instant case, the appeal from the decree passed by the trial court lies to the High Court. The expression ‘appeal’ has not been defined in the CPC. It is a judicial examination of the decision by a higher court of the decision of a subordinate court to rectify any possible error in the order under appeal. An appeal is a continuation of the proceedings of the original court. Ordinarily, the appellate jurisdiction involves a re-hearing on law as well as on fact and is invoked by an aggrieved person. The first appeal is a valuable right of the appellant and therein all questions of fact and law decided by the trial court are open for re-consideration. The judgment of the first appellate court must display conscious application of mind and record findings supported by reasons on all issues and contentions. A first appeal under Section 96 of the CPC is entirely different from a second appeal under Section 100. Section 100 expressly bars second appeal unless a question of law is involved in a case and the question of law so involved is substantial in nature. [Paras 11, 14 and 15][793-G-H; 794-A-B, F-H; 795-A-C]
1.2 The judgment of the first appellate court has to set out points for determination, record the decision thereon and give its own reasons. Even when the first appellate court affirms the judgment of the trial court, it is required to comply with the requirement of Order XLI Rule 31 and non-observance of this requirement leads to infirmity in the judgment of the first appellate court. The issue relating to readiness and willingness of the plaintiff to perform his part of the contract and issue relating to limitation were held against the plaintiff and the suit was dismissed. The appeal before the High Court involved both disputed questions of law and fact. The High Court without examination of any of these aspects dismissed the appeal by a cryptic order. The court below neither reappreciated the evidence of the parties, nor it passed a reasoned order. The High Court has failed to follow the provisions of Order XLI Rule 31 of the CPC while deciding the appeal. The judgment and decree of the High Court is set aside and the matter is remanded to the High Court for fresh disposal in accordance with law. [Paras 19-21] [797-B-G]
Hari Shankar v. Rao Girdhari Lal Chowdhury AIR 1963 SC 698 : [1962] Suppl. SCR 933; Shankar
Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat (1969) 2 SCC 74 : [1970] 1 SCR 322; Vinod Kumar v. Gangadhar (2015) 1 SCC 391 : [2014] 10 SCR 1050; Shasidhar and Ors. v. Ashwani Uma Mathad & Anr. (2015) 11 SCC 269 : [2015] 2 SCR 1– relied on. Santosh Hazari v. Purushottam Tiwari (Deceased) By Lrs. (2001) 3 SCC 179 : [2001] 1 SCR 948; Madhukar and others v. Sangram and Others (2001) 4 SCC 756 : [2001] 3 SCR 138; B. M. Narayana Gowda v.
Shanthamma (Dead) By LRs. and Another (2011) 15 SCC 476; H. K. N. Swami v. Irshad Basith (Dead) By LRs. (2005) 10 SCC 243; M/s. Sri Raja Lakshmi Dyeing Works v. Rangaswamy Chettiar (1980) 4 SCC 259 – referred to.
Black’s Law Dictionary (7th Edn.) – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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