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MADHUKAR AND ORS.

SANGRAM AND ORS. "

APRIL 20, 2001

[DR. A.S. ANAND, CJ., R.C. LAHOTI AND BRIJESH KUMAR, JJ.]

Code of Civil Procedure, 1908 : Section 96.

Appeal-Court of first appeal-Duty and obligations as First Appellate c Court-Duty to deal with all the issues and evidence led by parties.

Declarat01y suit-Respondent seeking declaration of joint ownership t'-- along with defendant No.1 ofsuit property-Substantial documentmy evidence )

and oral evidence noticed and appreciated by trial court-Trial court t= dismissed the suit on two grounds-First, suit barred by limitation-Second, D decision in the earlier suit operated as res .iudicata against defendant No.1 only-Appeal Filed by plaintiffs-High Court setting aside the impugned judgment and decree-High Court did not consider either of two grounds on which trial court had dismissed the suit-Judgment of High Court singularly -... silent of any discussion either of documentary evidence or oral evidence-

E Appeal before Supreme Court-Held 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-It failed to discharge the obligation placed on a first appellate court-Appeal was decided in a very unsatisfactory manner-It falls short of considerations which are expected from the court of firs/ appeal-Impugned decree and judgment set aside-Appeal remitted to High Court for fresh F disposal in accordance with law.

Santosh Hazari v. Purushottam Tiwari, (Dead) by L. Rs. JT(2001) (2) SC 407, referred to.

"',.....- CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2918 of 2001.

G From the Judgment and Order dated 22.3.99 of the Karnataka High Court

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in RF.A. No. 103 of 1993.

P.R. Ramasesh for the Appellants.

H D.P. Chaturvedi and S.N. Bhat for the Respondents. 138

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MADHUKARv. SANGRAM 139

"' The following Order of the Court was delivered : A- ,•

-, I Leave granted.

Respondents-plaintiffs filed a suit for declaration that they along with defendant No. 1 were the joint owners in possession of the suit property and also for a declaration that gift deed bearing No. 3042/65 and the two sale B deeds dated 28.02.1989 were ineffeytive insofar as the rights of the plaintiffs are concerned. SuiLwas dismissed by the Trial Court. A perusal of the order of the Trial Court shows that suit was dismissed inter-alia on the ground (1) of limitation and (2) on the ground that decision in an earlier suit, being OS No. 93/71 operated as res judicata against defendant No. 1 only. Before the c Trial Court, documentary evidence was led, including placing on record copies of enteries of public records and decision of the earlier suit (O.S. No. 93/71).

Against the dismissal of the suit, a first appeal was filed by the plaintiffsrespondents in the High Court. The High Court, after noticing some details from the judgment of the Trial Court as also pleadings of the parties, opined D that the questions to be decided in the appeal were:

-; "(l) Whether the relationship claimed by the parties are true?

(2) Whether the plaintiff is entitled to declaration as prayed for?"

After deciding these questions in favour of the plaintiffs-respondents, E the High Court set aside the judgment and decree of the trial court and allowed the first appeal. Aggrieved, this appeal has been filed by special leave by the appellants-contesting defendants.

We have carefully perused the judgment and decree of the High Court in the first appeal. We find that substantial documentary evidence had been F placed before the trial court including certified copies of certain public records besides copy of the judgment and decree of the earlier suit (O.S. No. 93/71).

Oral evidence had also been led by the parties before the trial court, which was noticed and appreciated by the trial court. However, the impugned judgment in the first appeal, is singularly silent of any discussion either of G documentary evidence or oral evidence. Not only that, we find that though trial court had dismissed the suit on ground of limitation as also on the ground that the decision in the earlier suit (O.S. No. 93/71) operated as res

..I judicata against defendant No. 1 only the High Court has not even considered, much less discussed, correctness of either of the two grounds on which the trial court had dismissed the suit. Sitting as a Court of first appal, it was the H

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SUPREME COURT REPORTS

[2001] 3 S.C.R. r

A duty of the High Court to deal with all the issues and the evidence led by ) ,.., the parties before recording its findings. It has failed to discharge the obligation placed on a first appellate court. The judgment under appeal is .so cryptic that none of the relevant aspects have even been noticed. The appeal has been

decided in a very unsatisfactory manner. First appeal is a valuable right and

B 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.

Jn Santosh Hazari v. Purshottam Tiwari' (Dead) by L. Rs. IT (2001) 2 SC 407 this court opined:

\ c "The Appellate Court has jurisdiction to reverse or affirm the

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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 D 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."

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"While reversing a finding of fact the Appellate Court must come t, 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

F Court had discharged the duty expected of it."

The salutary principle referred to above in Santosh Hazari's case (supra) have been respected in their breach.

Our careful perusal of the judgment in the first appeal shows that it

G hopelessly falls short of considerations which are expected from the court of first appeal. We, accordingly, set aside the impugned judgment and decree of the High Court and remand the first appeal to the High Court for its fresh disposal in accordance with law.

We wish to clarify that nothing said hereinabove shall be construed as \.

H any expression of opinion on the merits of the case.

MADHUKAR v. SANGRAM 141

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We request the High Court to dispose of the appeal expeditiously after A

notice to the parties.

The appeal is disposed of in the above terms. Parties shall bear their own costs.

T.N.A.

Appeal disposed of. B