IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 380 of 2000 Date of decision: 28.6.2011 Asa Ram and others … Appellants Versus Bansi Ram and others. … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 Yes. For the appellants : Mr. Ramakant Sharma, Advocate For the respondents: Mr. G.D. Verma, Senior Advocate with Mr. B.C. Verma, Advocate. V.K. Ahuja, J. (Oral): This is a second regular appeal filed by the appellants/defendants under Section 100 of the Code of Civil Procedure against the judgment and decree dated 16.2.2000 passed by the learned Additional District Judge, Solan camp at Nalagarh vide which he allowed the appeal filed by the respondents/plaintiffs against the judgment and decree of the learned Sub Judge Ist Class, Nalagarh dated 24.8.1998 vide which the suit of the plaintiffs/respondents was dismissed for declaration with consequential relief of permanent prohibitory injunction. The learned First Appellate Court vide its impugned judgment and decree allowed the appeal and decreed the suit of the plaintiff. 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 Being aggrieved, the present appeal has been filed by the appellants/defendants. 2. Briefly stated the facts of the case for the present discussion are that the predecessor in interest of the respondents namely Sawanu Ram (hereinafter referred to as plaintiffs) filed a suit for declaration with consequential relief of permanent prohibitory injunction. The suit was contested by the appellants (hereinafter referred to as defendants) and in conclusion the learned trial Court had dismissed the suit filed by the plaintiffs and the findings of the learned trial Court were reversed in the appeal by the learned Addl. District Judge, Solan camp at Nalagarh. 3. I have heard the learned counsel for the parties and have gone through the record of the case. 4. I do not deem it necessary to go into the details of the case since it has been brought to my notice during the course of arguments that the learned First Appellate Court while deciding the appeal has not referred for the oral and documentary evidence led on record by both the parties and discussed by the learned trial Court. A perusal of the impugned judgment of the learned First Appellate Court shows that the judgment runs in 23 pages and there is a reference to the facts and case laws but the discussion of the evidence starts from para 21 on wards and brief reference was also made to the evidence in para 13 and 14 of the impugned judgment. A perusal of these paras always shows that the learned First Appellate Court has not referred to the oral and documentary evidence led by the parties. However, the learned First Appellate Court apart from not discussing the evidence in details, has not concluded as to how the conclusion drawn by the learned trial 3 Court was incorrect which lead to the reversal of the judgment passed by the learned trial Court. 5. During the course of hearing the learned counsel for the appellant has relied upon the decision of the Hon’ble Apex Court in State of Rajasthan versus Harphool Singh (dead) through his LRs (2000)5 Supreme Court cases, 652, wherein it has been mentioned that it is the duty of the First Appellate Court to make the critical analysis of the matter before it. It cannot mechanically affirm the findings of the trial court without due and proper application of mind. 6. The learned Single Judge of this Court had the occasion to consider the similar question in case Ramji versus State of H. P. and Ors., 2008 (2) Shim. LC 60 in which the learned Single Judge has made a reference of the judgment referred to above as well as other cases of the Hon’ble Apex Court and had observed that judgment passed by the First Appellate Court shows that it hopelessly falls short on considerations which are expected from the Court of first appeal. It was clearly concluded by the learned Single Judge that first appeal has to be decided on facts as well as on law in view of the various decisions. It is clear that the learned Additional District Judge while deciding the appeal has not performed his statutory duties, which were required to be performed in deciding an appeal. He should discuss the oral as well as documentary evidence led by both the parties and should have given the reasoned findings having regard to the judgment passed by the learned trial Court. In view of the above, I have no option except to remand the case to the learned First Appellate Court for rehearing the matter and deciding it afresh 4 after discussing the oral as well as documentary evidence led on record by both the parties. I agree that the appeal was filed on 16.1.2000 and it was being decided after a lapse of 10 years. It was admitted on the substantial question of law: Whether the learned lower appellate Court being last Court of fact, can ignore discussion of oral as well as documentary evidence? 7. The matter is remanded back to the learned Additional District Judge, Solan to decide it afresh as it is the first court of appeal and since the first Appellate Court was a court of fact and law and this Court has to draw conclusion from the facts and law and since such duty was not performed in first appeal, therefore, the case is being remanded for hearing the matter and giving afresh decision. Keeping in view the aforementioned facts the learned First Appellate Court shall decide the matter as far as possible within six months from the date fixed for hearing. The parties through their counsel are directed to put up appearance before the learned trial Court on 18.7.2011 and the case shall be decided as far as possible on or before 31st December, 2011. 8. Accordingly, the appeal is allowed and the judgment and decree of the learned Additional District Judge is set aside. The Registry is directed to send the record of the Court of learned Addl. District Judge, Solan forthwith along with a copy of judgment. ( V.K. Ahuja ), June 28th , 2011 Judge (jai)