Case: NEMAI CHANDRA DEY (DEAD) THROUGH LRS Vs. PRASANTA CHANDRA (DEAD) THROUGH LRS. &amp; ANR

noticed, the scheme of the Constitution, inter alia, is that the findings of fact are ordinarily to attain finality at the hands of the Court of Appeal and it is only on substantial questions of law that the High Court can interfere in the findings of the first Appellate Court. Therefore, apart from reiterating that it is a valuable right of the party which is at stake, it would not be conducive to the interest of administration of justice that findings of fact are rendered without due care and application of mind to the evidence and the law governing the parties. We say for the reason that any breach of duty by the first appellate Court in this regard has far reaching consequences on the administration of justice. 8. The case which is not decided in the manner contemplated under law, can finally culminate in the litigants approaching the highest Court and invoking power under Article 136 of the Constitution of India. Power under Article 136 is intended to be used rarely. This is an extraordinary jurisdiction. 9. The founding fathers contemplated that Courts at each level discharge their duties as contemplated under law. That means that the first Appellate Court will reappreciate the evidence, consider the arguments and apply the law and arrive at findings. Only then limiting of the jurisdiction of the High Court to only cases where substantial question of law arises would be justified. Approach to this Court under Article 136 could be on rare occasions only. We say nothing more except to reiterate that it is the bounden duty of the first appellate Court to deal with appeals within the confines of law and keeping in mind the principles which have been enumerated under Order XLI Rule 31 and various judgments of this Court. 10. Being dissatisfied, the appellants carried the matter to the High Court in second appeal. On one occasion, the High Court dismissed the appeal on account of the absence of the appellants and under Order XLI Rule 11. This is impugned. Thereafter the matter was taken up and then followed the next impugned judgment. In the said impugned judgment, the High Court proceeded to find that the judgment of the trial Court was elaborate and detailed and thereafter, the Court was of the view that the contentions of the plaintiff was inevitable and the Court below was correct in arriving at the findings returned. The appellants was not able to show any perversity in the impugned judgments. The five substantial questions of law did not appeal to the Court. The appellants did not show any material to establish that the findings of fact returned by the trial Court and affirmed in appeal was perverse. And so far as burden of proof was concerned, the trial Court had not acted irregularly in arriving at the findings. Therefore, the Court did not find it appropriate to recall the order. 11. When this Court initially heard the matter, on 25.08.2014, it issued notice and also granted stay of further proceeding of execution. Thereafter, it would appear that by order dated 16.12.2015, the interim order granted earlier was vacated. But by the same order, the Court granted leave and it is thereafter, the matter came before us. 12. We have heard the learned counsel for the appellants and also the learned counsel for the respondents. 13. Learned counsel for the appellants would point out that the case of the appellants has not been considered by the appellate Court, the point which we have already noted. No doubt, learned counsel for the respondents supported the order of the High Court. 14. As we have noticed, the High court has proceeded on the basis that the consideration by the first appellate Court to the findings of the trial Court constituted concurrent findings as if this is a case where the first appellate Court has discharged its duties and given its approval to the trial Court findings. One could have understood the High Court so holding in a case where the first appellate Court had considered the appeal in the manner provided by law and as established by long line of judgments. We are clear in mind that this is indeed one such case where by virtue of the first appellate Court having failed to discharge its duties, in the facts of this case, remand to the first appellate Court is warranted. This is so for the reason that the suit was contested. Parties led elaborate evidence. What is taken in defence was the validity of the two registered gift deeds, which according to the first defendant were executed lawfully. In this connection there is a contention raised by the appellants that the plaintiff has executed a number of documents by way of sale deeds. The plaintiff, according to the appellants was, in fact, literate, though a pardahnashin lady. The first defendant has a case that it was a suit which was laid on the strength of the influence wielded by the nephew of the plaintiffs-sister in whose house the plaintiff was staying for some time. The scribe has been examined as a witness. The attesting witness has been examined. We may notice in this regard, no doubt that in respect of a pardahnashin lady, this Court has followed the view taken by the Privy Council and reiterated the principles in Mst. Kharbuja Kuer v. Jangbahadur Rai and Others AIR 1963 1203. In this case, no doubt, the plaintiff has given evidence that she executed the gift deeds in question on the basis of her being under the impression that power of attorney was executed. There were other items of evidence which were before the Court also. We do not wish to say anything more in view of the order of remand that we are passing. We are of the view that the interest of justice do require a remand to the first appellate Court in the nature of the order which has been passed by the Courts.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]14. As we have noticed, the High court has proceeded on the basis that the consideration by the first appellate Court to the findings of the trial Court constituted concurrent findings as if this is a case where the first appellate Court has discharged its duties and given its approval to the trial Court findings. One could have understood the High Court so holding in a case where the first appellate Court had considered the appeal in the manner provided by law and as established by long line of judgments. We are clear in mind that this is indeed one such case where by virtue of the first appellate Court having failed to discharge its duties, in the facts of this case, remand to the first appellate Court is warranted.This is so for the reason that the suit was contested. Parties led elaborate evidence. What is taken in defence was the validity of the two registered gift deeds, which according to the first defendant were executed lawfully. In this connection there is a contention raised by the appellants that the plaintiff has executed a number of documents by way of sale deeds. The plaintiff, according to the appellants was, in fact, literate, though a pardahnashin lady. The first defendant has a case that it was a suit which was laid on the strength of the influence wielded by the nephew of the plaintiffs-sister in whose house the plaintiff was staying for some time. The scribe has been examined as a witness. The attesting witness has been examined. We may notice in this regard, no doubt that in respect of a pardahnashin lady, this Court has followed the view taken by the Privy Council and reiterated the principles in Mst. Kharbuja Kuer v. Jangbahadur Rai and Others AIR 1963 1203. In this case, no doubt, the plaintiff has given evidence that she executed the gift deeds in question on the basis of her being under the impression that power of attorney was executed. There were other items of evidence which were before the Court also. We do not wish to say anything more in view of the order of remand that we are passing. We are of the view that the interest of justice do require a remand to the first appellate Court in the nature of the order which has been passed by the Courts.