Case: MALLURU MALLAPPA(D) THR. LRS Vs. KURUVATHAPPA &amp; ORS

3. The plaintiff filed the above suit against the respondents/defendants for specific performance of the agreement to sell dated 30.3.2000. The agreement provided that the sale was to be executed within three years from the date of the agreement, subject to the defendants fulfilling certain obligations4. Defendant No.1 filed the written statement and the other defendants filed a memo adopting the same as their written statement. Defendant No.1 admitted the execution of the agreement to sell in favour of the plaintiff. However, the defendant pleaded that the suit was barred by limitation. It was further contended that plaintiff was not ready and willing to perform his part of the contract5. Based upon the rival pleadings of the parties, the trial court framed the following issues: -1.Whether the plaintiff proves that, the defendants 1 and 2 their father have executed an agreement to sell on 30.3.2000 for Rs.2,00,000/- in favour of the plaintiff after receiving Rs.1,50,000/- as earnest money?2. Whether the plaintiff proves that, he is always ready and willing to perform his part of contract?3. Whether the suit of the plaintiff is barred by limitation?4. What order or decree?6. The plaintiff got himself examined as PW-1 and Ex. P-1, P1(a) to (c) were marked in his evidence. The defendant No.1 was examined as DW1 and three other witnesses were examined as DW-2 to 4. On appreciation of the evidence on record, the trial court held that the suit was barred by time. It was also held that the plaintiff was not ready and willing to perform his part of the contract. The suit was accordingly dismissed7. As noticed above, the High Court has confirmed the said decree of the trial court.

Reasoning:
19. It is clear from the above provisions and the decisions of this Court that 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. No doubt, when the appellate court agrees with the views of the trial court on evidence, it need not restate effect of evidence or reiterate reasons given by trial court. Expression of a general agreement with the reasons given by the trial court would ordinarily suffice20. Keeping in mind the above principles, let us examine the present case. As stated above, 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 accordingly 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 has dismissed the appeal by a cryptic order. The court below has neither reappreciated the evidence of the parties, nor it has 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. Mr. Bhat has argued that the suit was well within time under Article 54 of the Schedule to the Limitation Act. Even this question has not been examined in its proper perspective14. It is a settled position of law that 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. Therefore, the first appellate court is required to address itself to all the issues and decide the case by giving reasons. The court of first appeal must record its findings only after dealing with all issues of law as well as fact and with the evidence, oral as well as documentary, led by the parties. The judgment of the first appellate court must display conscious application of mind and record findings supported by reasons on all issues and contentions [see: Santosh Hazari v. Purushottam Tiwari (Deceased) By Lrs.(2001) 3 SCC 179   , Madhukar and others v. Sangram and Others (2001) 4 SCC 756 ,  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  and M/s. Sri Raja Lakshmi Dyeing Works v. Rangaswamy Chettiar (1980) 4 SCC 259   ].