TMI Blog2016 (6) TMI 1435X X X X Extracts X X X X X X X X Extracts X X X X ..... HELD THAT:- The High Court committed another error when it rejected the application filed by the Appellant under Order 41 Rule 27 of the Code. This application should have been allowed for more than one reason. First, there was no one to oppose the application. In other words, the Respondents were neither served with the notice of appeal and nor served with the application and hence they did not oppose the application. Second, the Appellant averred in the application as to why they could not file the additional evidence earlier in civil suit and why there was delay on their part in filing such evidence at the appellate stage. Third, the averments in the application were supported with an affidavit, which remained un-rebutted. Fourth, the application also contained necessary averment as to why the additional evidence was necessary to decide the real controversy involved in appeal. Fifth, the additional evidence being in the nature of public documents and pertained to suit land, the same should have been taken on record and lastly, the Appellant being the Union of India was entitled to legitimately claim more indulgence in such procedural matters due to their peculiar set up and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 1st Additional City Civil and Session Judge, Bangalore for a declaration that they (Appellant) are the owners of the suit land and that the Respondents whose ancestral claims to have interest in the suit land have no right, title and interest in the suit land. The Appellant in order to prove their title over the suit land filed certain documents. 6. The Respondents filed their written statements and while denying the Appellant's title asserted their own title over the suit land through their predecessors. According to them, their predecessors acquired occupancy rights under the State Tenancy Laws over the suit land in revenue proceedings. It was contended that by virtue of these proceedings, their ancestral acquired superior title over the suit land to the exclusion of every one including the Appellant and the same devolved on them after the death of their predecessor in title. The Respondents also raised a plea that the suit is barred by limitation. The Trial Court on the basis of the pleading framed issues arising in the civil suit. Parties adduced evidence. 7. Therefore, the dispute that essentially arose between the parties was who is the owner of the suit land-the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Counsel for the Appellant and Mr. P.P. Singh, learned Counsel for the Respondents. 12. Learned Counsel for the Appellant while assailing the legality and correctness of the impugned judgment urged several grounds and submitted that the High Court (Single Judge) erred in dismissing the Appellant's first appeal in limine, so also erred in dismissing the application filed under Order 41 Rule 27 of the Code. 13. Firstly, learned Counsel urged that the appeal being in the nature of first appeal Under Section 96 of the Code should have been admitted for final hearing almost as of right unlike the second appeal which is not admitted for final hearing unless it involves some substantial question of law. Learned Counsel urged that had the appeal been admitted for final hearing, then the High Court would have been able to go into all questions of facts and law in its first appellate jurisdiction by party and come to a conclusion different from that of the Trial Court. 14. Secondly, learned Counsel urged that since a right to file the first appeal is a valuable legal right, such right could not be taken away by the High Court in a casual manner by dismissing the Appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rguable points. 22. It is a settled principle of law that a right to file first appeal against the decree Under Section 96 of the Code is a valuable legal right of the litigant. The jurisdiction of the first appellate Court while hearing the first appeal is very wide like that of the Trial Court and it is open to the Appellant to attack all findings of fact or/and of law in first appeal. It is the duty of the first appellate Court to appreciate the entire evidence and may come to a conclusion different from that of the Trial Court. 23. Similarly, the powers of the first appellate Court while deciding the first appeal are indeed well defined by various judicial pronouncements of this Court and are, therefore, no more res integra. It is apposite to take note of the law on this issue. 24. As far back in 1969, the learned Judge-V.R. Krishna Iyer, J (as His Lordship then was the judge of Kerala High Court) while deciding the first appeal Under Section 96 of the Code of Civil Procedure in Kurian Chacko v. Varkey Ouseph AIR 1969 Kerala 316, reminded the first appellate Court of its duty to decide the first appeal. In his distinctive style of writing with subtle power of expressio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of this Court in Madhukar and Ors. v. Sangram and Ors. (2001) 4 SCC 756, wherein it was reiterated that sitting as a court of first appeal, it is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. 29. In H.K.N. Swami v. Irshad Basith (2005) 10 SCC 243, this Court (at p. 244) stated as under: (SCC para 3) 3. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title. 30. Again in Jagannath v. Arulappa and Anr. (2005) 12 SCC 303, while considering the scope of Section 96 of the Code of Civil Procedure, 1908, this Court (at pp. 303-04) observed as follows: (SCC para 2) 2. A court of first appeal can rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt of first appeal. Accordingly, without going into the merits of the claim of both parties, we set aside the impugned judgment and decree of the High Court and remand the regular first appeal to the High Court for its fresh disposal in accordance with law. 32. The aforementioned cases were relied upon by this Court while reiterating the same principle in State Bank of India and Anr. v. Emmsons International Ltd. and Anr. (2011) 12 SCC 174. 33. This takes us to the next question in relation to the application filed under Order 41 Rule 27 of the Code. In our considered view, the High Court committed another error when it rejected the application filed by the Appellant under Order 41 Rule 27 of the Code. This application, in our opinion, should have been allowed for more than one reason. 34. First, there was no one to oppose the application. In other words, the Respondents were neither served with the notice of appeal and nor served with the application and hence they did not oppose the application. Second, the Appellant averred in the application as to why they could not file the additional evidence earlier in civil suit and why there was delay on their part in filing suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessary consequence, the impugned order has to be set aside and Respondents are granted an opportunity to file additional evidence in rebuttal, if they so wish to file. 39. The other inevitable consequence is that the case has to be remanded either to the High Court for deciding the appeal afresh on merits or to the Trial Court for deciding the civil suit afresh on merits in accordance with law. 40. Having regard to the nature of controversy and the manner in which the suit/appeal was decided, we consider it appropriate, in the interest of parties, to remand the case to the Trial Court (District and Sessions Judge, Bengaluru) for deciding the civil suit afresh on merits in accordance with law. 41. In view of foregoing discussion, the appeal succeeds and is allowed. The impugned judgment and also the judgment/decree passed by the Trial Court are set aside. 42. The civil suit is now restored to its file. The Trial Court, i.e., District and Sessions Judge Bengaluru, is directed to retry the civil suit on merits. The additional evidence filed by the Appellant is taken on record. The Respondents are afforded an opportunity to file additional evidence in support of their case ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
