LAXMI W/O SHANKARGOUDA PATIL vs PIRAJI H SOMANACHE
- Court
- Karnataka High Court
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RSA.5269 of 2011
IN THE HIGH COURT OF KARNATAKA AT DHARWAD
TH
DATED THIS THE 09 DAY OF OCOTOBER, 2026
BEFORE
THE HON'BLE MRS JUSTICE RAJESHWARI N.HEGDE
REGULAR SECOND APPEAL NO.5269 OF 2011
BETWEEN:
LAXMI W/O SHANKARGOUDA PATIL
AGE: 45 YEARS, OCC: SERVICE AND
HOUSEHOLD,
R/O. PLOT NO.1551,
SCHEME NO.35+43+43A, KANABARGI,
TALUK AND DIST. BELAGAVI-590001.
…APPELLANT/S
(BY SRI. SHRIKANT R. SATTIGERI, ADVOCATE)
AND:
1. SHRI PIRAJI H. SOMANACHE
AGE: 51 YEARS, OCC: BUILDING CONTRACTOR,
R/O. KURBAR GALLI, ANGOL,
BELAGAVI-590002.
2. SHRI SHASHIKANT S/O PUNDALIK PATIL
AGE: 52 YEARS, OCC: ENGINEER,
R/O. H.NO.356, SCHEME NO.17,
T.V. CENTRE, BELAGAVI-590001.
…RESPONDENTS
(BY SRI. N.S. TORGAR, ADVOCATE FOR C/R1;
SRI. PRASAD PATIL, ADVOCATE FOR R1;
NOTICE TO R2 IS SERVED)
THIS RSA IS FILED U/S.100 OF C.P.C., PRAYING TO
SET ASIDE THE JUDGMENT & DECREE DATED:05.03.2011
PASSED IN R.A.NO.17/2010 ON THE FILE OF THE V ADDL.
Digitally signed by
BHARATHI H M
Location: HIGH
COURT OF
KARNATAKA
DHARWAD
BENCH
Date: 2026.10.13
10:55:56 +0530
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RSA.5269 of 2011
DISTRICT JUDGE, BELGAUM, DISMISSING THE APPEAL
FILED AGAINST THE JUDGMENT DATED:25.11.2009 AND
THE DECREE PASSED IN OS NO.305/2006 ON THE FILE OF
THE III ADDL. CIVIL JUDGE (SR.DN.) & ADDL. MACT,
BELAGAVI, WITH COSTS THROUGHOUT TO PROMOTE THE
ENDS OF JUSTICE.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 31.08.2026 AND COMING ON FOR
PRONOUNCEMENT THIS DAY, JUDGMENT WAS DELIVERED
THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE RAJESHWARI N.HEGDE
CAV JUDGMENT
This appeal is filed by the first defendant assailing the
judgment and decree dated 25.11.2009 passed in OS No.
305/2006 by the III Additional Civil Judge Senior Division
and ADDL.MACT Belgaum (for short trial court), which is
confirmed by the V Additional District and Session Judge,
Belgaum in R.A.No 17/ 2010 (for short First Appellate
Court) dated 05.03 2011.
2. For the convenience reference, parties are
referred as the ‘plaintiff’ and the ‘defendants’.
3. Facts in brief is that,
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RSA.5269 of 2011
Plaintiff filed the suit seeking recovery of a sum of
₹1,18,635.60 paise and interest at the rate of 18% p.a.
from the date of submission of final bill dated 10.10.2003
till 10.06.2006, further directing the first defendant to pay
damages of ₹25,000/- to the plaintiff for having caused
mental and physical strain and stress to the plaintiff and for
costs and such other reliefs.
4. The plaintiff's contention is that,
4.a He is the building contractor carrying on the
construction work on contract basis. First defendant is the
owner of the plot No. 1551, situated at Kanabargi village
nd
Belgaum district. 2 defendant is the civil engineer for
preplanning the proposed building plan.
4.b It is further contention of the plaintiff that, the
defendant No.1 has called for tender on 05.04.2002 for the
construction of the residential building over the said plot
belonging to her.
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RSA.5269 of 2011
4.c. The plaintiff has accepted the tender and started
the construction work on receiving the part payment of the
contract work. After the completion of building, the plaintiff
has handed over the possession of building to the first
defendant. The first defendant is residing in newly
constructed house without clearing of the plaintiff’s dues.
nd
4.d As per the last and final bill issued by the 2
defendant dated: 10.10.2003 the first defendant is liable to
pay sum of Rs.1,30,159.20ps/- to the plaintiff but out of the
said amount the first defendant had paid only Rs.50,000/-
through cheque. Defendant No.1 still has to pay the
remaining dues of Rs.80,159.20ps/- along with interest at
the rate of 18% p.a., which comes to Rs.1,18,635.60ps/-
4.e. It is the further contention of the plaintiff that,
he made several requests and reminders to clear off the
said dues but the first defendant did not heed the request
made by the plaintiff and went on postponing the payment
of the said dues by given one or other reasons
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RSA.5269 of 2011
4.f The plaintiff has issued legal notice through his
counsel to the first defendant calling upon her to pay the
dues along with interest at the rate of 18% p.a. the said
notice duly served upon defendant No.1. But defendant
No.1 neither replied with the said notice nor made any
payment of dues to the plaintiff.
4.g. Defendant No. 1 has issued false and evasive
reply to the said notice denying the claim of the plaintiff by
putting blame on him stating that, the construction work
made by the plaintiff is by using low quality material and
also the plaintiff has damaged the building by using low
quantity of cement and steel. As a result, the slab of the
building is leaking and there was heavy leakage during
rainy season. The plaintiff after receipt of said reply notice
by the first defendant suitably sent reply to the said reply
notice.
4.h. The plaintiff further contended that, he has made
the construction work of the building as per the plan
nd
prepared by the 2 defendant, approved by the city
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RSA.5269 of 2011
corporation Belagavi and also materials supplied by the first
defendant herself there was no any fault on the part of the
plaintiff, if there was any fault on the construction work of
nd
the plaintiff then it is the duty of the 2 tenant to issue
notice and further construction work would be stopped. The
nd
2 defendant has not issued any notice to the plaintiff, nor
he stopped the construction work, the plot belonging to the
first defendant is a black soil and plaintiff has taken
maximum care and caution before putting the construction
of the building and the plaintiff has made cement bed
concrete on the plot by using roads before the
commencement of foundation.
4.i. It is further contended that, the first defendant
ought to have clear the dues to the plaintiff, when the
plaintiff has handed over the actual possession of the
building. But defendant No. 1 making false allegations only
with an intention to shirk her lawful responsibility to clear
off the dues, in spite of several requests and reminders
made by the plaintiff, the first defendant has neither made
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RSA.5269 of 2011
any complaint against the plaintiff before any court and the
first defendant has not paid the amount. Therefore, the
plaintiff constrained to file the suit seeking relief as
aforesaid.
5. In response to the summons issued, defendant
No. 1 entered appearance through counsel, defendant No. 2
remained ex-parte.
st
6. 1 Defendant's contention is that,
The plaintiff himself agreed to construct the building
and accordingly, she handed over the possession of the plot
to the plaintiff. She is not liable to pay any amount to the
plaint.
6.a. It is further contended that, she has paid excess
amount to the plaintiff and in all total amount she paid of
₹5,89,000/-. She got valued the building from an engineer
that is the second defendant and engineer valued the said
construction at ₹5,20,326/-.
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RSA.5269 of 2011
6.b. Therefore, the first defendant contended that, she
is not at all liable to pay any amount to the plaintiff. Hence,
she prayed for dismissal of the plaint.
7. The trial Court on the basis of the said pleadings
framed the following issues:
1. Whether the plaintiff proves that defendant was
liable to pay Rs.80,159.20 p.s. being arrears for
completion of tender work of construction of house?
2. Whether the plaintiff proves that he is entitled to
charge 18% interest as outstanding amount?
3. Whether the defendant No.1 proves that she has
paid excess of Rs.68,674/- and she is entitled to
recover same?
4. Whether the plaintiff is entitled for the relief
sought?
5. Whether the defendant No.1 is entitled for counter
claim?
6. What order or decree?
8. The plaintiff in order to prove his case, examined
himself as PW1 and got marked 14 documents as Ex. P1 to
P14. On behalf of the defendants, the first defendant herself
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RSA.5269 of 2011
examined as DW1 and one witness examined as DW2 and
got marked documents as Ex. D1 to D27.
9. The Trial Court after appreciation of the evidence
on record proceeded to pass the impugned judgment
whereby the suit of the plaintiff has been decreed along
with costs and was the first defendant was directed ordered
that to pay ₹1,18,635.60/- paise to the plaintiff with the
interest at the rate of 18% per annum from the date of
institution of the suit till payment vide impugned judgment
and decree dated 25.11.2009.
10. The first defendant being aggrieved by the
impugned judgment, filed the appeal before the first
appellate court in RA No. 17/ 2010.
11. Learned First Appellate Court, after re-
appreciation of the evidence on record proceeded to pass
the judgment, whereby the appeal filed by the defendant
No. 1 is dismissed with no costs and the impugned
judgment passed by the trial court is confirmed vide
judgment dated 05.03.2011.
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RSA.5269 of 2011
12. The first defendant being aggrieved by the
impugned judgment of both the courts filed the present
regular second appeal on the following grounds:
GROUNDS
a) The judgment and decree passed by
both the courts is contrary to law, facts and
evidence on record, which resulted in
miscarriage of justice.
b) Both the courts have failed to note that
as per clause 6 of Ex. P1 it was mandatory
that both the parties should sign the
appendix and general conditions of contract
which admittedly does not bare the signature
of the appellant and as such there is clear
manipulation of document by the plaintiff.
c) Both the courts failed to note that clause
56 of general conditions of contract
contemplate that the disputes and
differences shall be settled by an arbitrator
and the same shall be final but no such
attempt has been made by the plaintiff.
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RSA.5269 of 2011
d) Both the courts have failed to note that
Ex.P3 to P6 i.e. the abstract sheets and
recapitulation have not been proved in
accordance with law as its author the second
defendant has remained ex-parte throughout
as such both the courts have herein
considering them.
e) Both the courts failed to note that the
agreement and conditions of building
contract has not been admitted in his
evidence and the reliance of the court below
on Ex.P15 signature of the first defendant to
the whole document is a legal error which
renders the judgment and
decree is illegal and unsustainable.
f) Both the courts erred in considering Ex.
D1 valuation report prepared by the
nd
2 defendant which shows that the amount
payable to the first respondent was only to
the extent of ₹5,20,326/- as against
₹5,89,000/- paid by the first defendant which
in fact in excess of ₹68,674/-.
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RSA.5269 of 2011
g) Both the courts have failed to consider the
admission given by the first respondent that
the first defendant had provided at her own
cost the glazed tiles, flooring tiles, wall tiles,
sinks, latrine, materials, safety tanks
common glasses, electrical materials,
wooden frameworks, doors etc and that the
first defendant was entitled for deduction of
the value of the said materials.
h) Both the courts erred in considering
issues 1, 3 and 5 at one stretch which were
different in nature which has resulted in
miscarriage of justice.
i) Both the courts have not re-appreciated
the entire oral and documentary evidence by
considering all the issues as is mandatory
required by the first appellate court by giving
findings on all issues raised and answered by
the trial court.
j) Both the courts have failed to note that
there is no mention of exact consideration
payable by the first defendant to the plaintiff
and the plaintiff has admitted this fact in the
course of his cross-examination.
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RSA.5269 of 2011
k) Both the courts have failed to note that
the defendant No. 1 had paid excess amount
of ₹68,674/- and that she was entitled to the
same with interest from the plaintiff by way
of counter claim.
l) The award of interest on the principal
amount at 18% in the absence of any
contract between the parties is not legal and
sustainable.
13. On these grounds, the appellant/first defendant
contended that, both the courts have passed the impugned
judgment and decree which are opposed to law, principles
and evidence on record and not based on sound principles
and reasons.
14. Hence, the first defendant prayed that, by
allowing this appeal to set aside the impugned judgments of
both the courts and sought for dismissal of the suit of the
plaintiff.
15. In response to the notice in this appeal, the
plaintiff being the first respondent herein represented
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RSA.5269 of 2011
through the learned counsel and the second defendant/
respondent No. 2 served but unrepresented.
16. Trial court records secured.
17. Heard Learned counsel Sri. Shrikant R. Sattigeri
advocate for appellant, Sri.N.S.Targar advocate for
respondent No.1.
18. In support of the case of the first
respondent/plaintiff, the learned counsel has relied upon the
following judgments:
i) (2013) 14 Supreme Court Cases 608 in the case of
Azrath Bivi and another -Vs- Chinnathambi (dead)
Through LRs
ii) AIR 1999 Supreme Court 2216 in the case of
Arumugham (dead) by L.Rs and others -Vs- Sundarambal
and another.
19. Learned counsel for the appellant has relied upon
the following judgments:
i) (2003) 8 Supreme Court Cases 745 in the case of
Narbada Devi Gupta -Vs- Birendra Kumar Jaisal and
another.
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RSA.5269 of 2011
ii)HCR 2020 S.C.453 in the case of Malluru Mallapa (D)
Thr.Lrs -Vs- Kuruvathappa and others.
20. Perused the records.
21. At this stage, it is relevant to mention that This
Court while admitting the appeal, has framed the following
substantial question of law:
1) Whether the trial Court is right in
decreeing the suit on the basis of the
document Ex.P2 without examining its
author?
2) Whether the lower appellate court is
right in dismissing the appeal without
considering all the points involved in the
case particularly when it is a last fact
finding court?
As the first substantial question of law is, whether the
trial court is right in decreeing the suit on the basis of the
document Ex. P2 without examining its author, then it is
necessary to have a look on the said Ex.P2.
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RSA.5269 of 2011
Ex.P.2 is a recapitulation sheet dated 10.10.2003. For
convenience reference, the Exhibit P2 is reproduced as
under:
“Date: 10-10-2003
Construction of a Residential Building in plot
No.1551 of Scheme No.35+43+43A at Kanabargi,
Belgaum for Smt.Laxmi S. Patil.
Final Bill of a contractor Shri.Piraji
H.Somanache.680. Kurbar Galli, Angol, Belguam.
RECAPITULATION SHEET
th
1 Total of 4 . R.A. (Final) Bill of Rs.33,980.56
a main building
2 Total for Extra Item Rs.36.674.27
st
3 Total of 1 . R.A.(Final) Bill of Rs.26,353.98
a cutside work
4 Add for plumbing labour Bill Rs.4,475.00
5 Deduct difference in cement Rs. 525.00
Total Rs.1,00,958.81
Add total of previous Bills Rs.5,68,200.47
Total Rs.6,69,159.28
Deduct Advance paid so far Rs.5,39,000.00
(Please Check)
Rs.1,30,159.28
Balance
Say Rs.1,30,159.00
PLEASE PAY THE BILL
(Total Rs.one lakh Thirty Thousand One Hundred Fifty-
nine Only)”
22. Learned counsel for the appellant categorically
contended that, both the courts have proceeded to pass the
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RSA.5269 of 2011
impugned judgment without properly appreciating the
document Ex. P2.
23. According to the learned counsel for the
appellant, Ex.P2 does not bear the signature of the first
defendant and is a document allegedly brought into
existence by the plaintiff in collusion with the second
defendant, without the knowledge or consent of the first
defendant.
24. It is further contended that, when the execution
and genuineness of Ex.P2 have been specifically disputed by
the first defendant, the plaintiff ought to have examined its
author to prove the contents and execution of the said
document. Since the plaintiff has failed to examine the
author of Ex.P2, the learned counsel for the appellant
submits that the document has not been duly proved in
accordance with law. Therefore, it is argued that both the
Courts below erred in placing reliance upon Ex.P2 while
decreeing the suit.
25. The learned counsel for the appellant further
contends that both the Courts below have placed reliance
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RSA.5269 of 2011
upon Ex.P2 in arriving at their respective conclusions and in
decreeing the suit in favour of the plaintiff. It is therefore
argued that, in the absence of proper proof of the execution
and genuineness of Ex.P2, the said document could not
have been relied upon to grant the relief sought by the
plaintiff.
26. In support of the above contention, the learned
counsel for the appellant placed reliance upon the judgment
of the Hon'ble Supreme Court in Narbada Devi Gupta v.
Birendra Kumar Jaiswal and Another , cited supra. The
learned counsel submitted that the principles laid down in
the said decision support the contention that documentary
evidence must be duly proved in accordance with law and
that the Court must assess the evidence in its proper legal
perspective.
27. The learned counsel for the appellant has relied
upon the judgment cited supra, wherein the Hon'ble
Supreme Court has reiterated the settled principle of law
that the mere production and marking of a document as an
exhibit does not, by itself, establish the truth of its
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RSA.5269 of 2011
contents. The execution and contents of a document must
be proved by legally admissible evidence, wherever such
proof is required. The Court has also recognised the
distinction between cases in which the execution and
signatures appearing on a document are admitted by the
opposite party and cases in which the execution or
genuineness of the document is disputed. The evidentiary
value of a document must, therefore, be determined with
reference to the nature of the document, the admissions, if
any, made by the parties, and the evidence available on
record.
28. Per contra , the learned counsel appearing for the
first respondent/plaintiff submits that Ex.P2 bears the
signature of the second defendant, who was admittedly the
engineer appointed by the first defendant herself. It is
therefore contended that, having appointed the second
defendant as her engineer, the first defendant cannot,
without establishing any valid ground, disown the document
prepared and signed by him by alleging that it was created
by the plaintiff in collusion with the second defendant.
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RSA.5269 of 2011
29. On a perusal of the evidence of the plaintiff, who
was examined as PW1, it is evident that he has deposed
regarding the execution and contents of Ex.P2. During his
cross-examination, a suggestion was put to him that Ex.P2
had been created by him in collusion with the second
defendant. The said suggestion was denied by PW1. Thus,
the plaintiff has disputed the allegation of fabrication and
has maintained the genuineness of Ex.P2.
30. The first defendant examined herself as DW1 and
denied the document relied upon by the plaintiff, namely,
Ex.P2. During her cross-examination, the circumstances
surrounding the preparation of the said document and the
role of the second defendant were put to her. Her evidence,
therefore, requires to be appreciated along with the other
oral and documentary evidence available on record to
determine the evidentiary value of Ex.P2.
31. Ex.P2 is stated to be a valuation document
prepared by the second defendant, who, according to the
plaintiff, was the engineer appointed by the first defendant
herself. The first defendant, however, denied the suggestion
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RSA.5269 of 2011
concerning the said document. In these circumstances, the
material question for consideration is whether the
execution, authorship and genuineness of Ex.P2 have been
established by the plaintiff through the evidence available
on record. The mere denial of the document by the first
defendant would not, by itself, conclude the issue; equally,
the mere assertion that the second defendant was
appointed as an engineer would not dispense with the
requirement of proving the document, where such proof is
required under law. The evidentiary value of Ex.P2 must
therefore be assessed in the light of the testimony of PW1
and DW1, the circumstances in which the document came
into existence, and the other evidence adduced by the
parties.
32. On a perusal of the trial Court records, it is
evident that the plaintiff issued a legal notice dated
11.10.2004, which has been marked as Ex.P10. In the said
notice, the plaintiff specifically referred to Ex.P2, dated
10.10.2003, and contended that, as per the final bill
prepared by the engineer on the said date, a sum of
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RSA.5269 of 2011
₹1,30,159.20 was due and payable in respect of the work
executed by the plaintiff. It was further stated that, out of
the said amount, the first defendant had paid only a sum of
₹50,000/- by cheque, which had been encashed by the
plaintiff, leaving a balance of ₹80,159.20 payable by the
first defendant to the plaintiff.
33. The first defendant issued a reply to the said
legal notice on 18.10.2004, which has been marked as
Ex.P12. On a perusal of the contents of Ex.P12, it is evident
that the first defendant disputed her liability to pay the sum
of ₹1,30,159.20 as claimed by the plaintiff on the basis of
the bill stated to have been issued by the engineer, Sri S.P.
Patil. However, the first defendant did not specifically allege
in the said reply notice that Ex.P2 was a fabricated
document brought into existence by the plaintiff in collusion
with the second defendant. The absence of such a specific
allegation in the reply notice is a relevant circumstance to
be considered while appreciating the subsequent defence
raised by the first defendant regarding the genuineness of
Ex.P2. Nevertheless, the evidentiary value of Ex.P2 must be
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determined by considering the entire oral and documentary
evidence on record.
34. It is also relevant to note that the first
defendant, who was examined as DW1, admitted during her
cross-examination that the second defendant was an
engineer appointed by her and that she had entrusted him
with the supervision of the work to be executed by the
plaintiff. This admission assumes significance in the context
of the plaintiff's case that Ex.P2 was prepared by the second
defendant in his capacity as the engineer entrusted with the
supervision of the work.
35. Further, the plaintiff had specifically referred to
Ex.P2 and its contents in the legal notice dated 11.10.2004,
marked as Ex.P10, and the first defendant, in her reply
notice, disputed the amount claimed without specifically
alleging that the document itself had been fabricated in
collusion between the plaintiff and the second defendant.
These circumstances lend support to the plaintiff's
contention and are relevant to the assessment of the
genuineness and evidentiary value of Ex.P2.
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36. In view of the evidence on record, the contention
of the appellant that Ex.P2 could not have been relied upon
solely because its author was not examined cannot be
accepted as an absolute proposition. Whether examination
of the author was necessary in the facts of the present case
must be determined with reference to the nature of the
document, the specific objections raised and the other
evidence available on record.
37. This Court has perused the said judgment cited
by the appellant’s counsel in the case of Narbada Devi
Gupta. The applicability of the principles laid down therein
to the present case must be considered in the context of the
nature of Ex.P2, the evidence adduced by the parties and
the findings recorded by the Courts below.
“Evidence Act, 1872- Ss.17, 61 and 62- Proof of
contents of documents-Mere production and
marking of a document as exhibit not enough-
Execution has to be proved by admissible
evidence- But where documents produced are
admitted by the signatories thereto and then
marked as exhibits, held, no further burden to
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RSA.5269 of 2011
lead additional evidence to prove the writing and
its execution survives”.
38. In the present case, though the plaintiff has not
examined the author of Ex.P2, it is relevant to note that the
plaintiff had specifically referred to the said document in the
legal notice dated 11.10.2004, marked as Ex.P10, thereby
bringing its existence and contents to the notice of the first
defendant.
39. It is also the specific case of the plaintiff that the
second defendant was an engineer appointed by the first
defendant herself and was entrusted with the supervision of
the construction work executed by the plaintiff. The first
defendant, in her reply notice dated 18.10.2004, marked as
Ex.P12, disputed her liability to pay the amount claimed by
the plaintiff but did not specifically allege that Ex.P2 was a
fabricated document brought into existence by the plaintiff
in collusion with the second defendant. These circumstances
are relevant for appreciating the rival contentions regarding
the genuineness and evidentiary value of Ex.P2. Therefore,
the question whether the non-examination of the author of
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RSA.5269 of 2011
Ex.P2 is fatal to the plaintiff's case has to be considered in
the light of the nature of the document, the evidence
adduced by the parties and the circumstances in which the
document was relied upon.
40. In the present case, the first defendant was put
on notice of the existence and contents of Ex.P2 through
the legal notice dated 11.10.2004, marked as Ex.P10. In
the reply notice dated 18.10.2004, marked as Ex.P12, the
first defendant disputed her liability to pay the amount
claimed by the plaintiff but did not specifically allege that
Ex.P2 had been fabricated by the plaintiff in collusion with
the second defendant. Further, the first defendant admitted
in her cross-examination that the second defendant was an
engineer appointed by her and that he had been entrusted
with the supervision of the construction work. These
circumstances distinguish the factual setting of the present
case from a case in which a document is sought to be relied
upon solely on the basis of its production and marking,
without any supporting evidence. Accordingly, the principle
relied upon by the learned counsel for the appellant cannot,
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RSA.5269 of 2011
by itself, lead to the conclusion that Ex.P2 must be
disregarded merely because its author has not been
examined. The document must be assessed along with the
oral and documentary evidence available on record. Subject
to such assessment, this Court finds no ground to reject
Ex.P2 solely on the ground of non-examination of its author.
41. In the facts and circumstances of the present
case, the non-examination of the author, by itself, would
not necessarily render Ex.P2 inadmissible or preclude the
Court from considering its evidentiary value along with the
other evidence on record.
42. In the light of the foregoing discussion, and upon
consideration of the oral and documentary evidence
available on record, this Court is of the view that the Courts
below were justified in placing reliance upon Ex.P2, having
regard to the circumstances in which the document was
relied upon and the evidence adduced by the parties. No
perversity or error of law warranting interference in the
present second appeal has been demonstrated in the
findings recorded by the Courts below on this aspect.
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Accordingly, the first substantial question of law is answered
against the appellant.
43. The second substantial question of law is as
follows:
Whether the First Appellate Court was justified in
dismissing the appeal without duly considering the
material grounds urged by the appellant, particularly when
it is the final Court of fact?
44. The learned counsel for the appellant/first
defendant contended that the First Appellate Court, being
the final Court of fact, was required to consider the
evidence on record independently and record its findings on
the material questions arising for determination in the
appeal. It was argued that, in Regular Appeal No.17/2010,
the First Appellate Court framed only the following points
for consideration:
(a) Whether interference is called for with the findings
recorded by the Trial Court?
(b) What order?
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RSA.5269 of 2011
45. According to the learned counsel, the points so
framed did not adequately reflect the material grounds
urged by the appellant in challenging the judgment and
decree passed by the Trial Court.
46. The learned counsel for the appellant further
contended that the First Appellate Court ought to have
formulated appropriate points for consideration having
regard to the grounds urged in the memorandum of appeal,
particularly the contentions that the judgment and decree of
the Trial Court were contrary to law, that the findings were
not supported by sound reasoning, and that the oral and
documentary evidence had not been properly appreciated.
47. It was argued that the First Appellate Court was
required to independently evaluate the evidence and record
reasoned findings on the material issues arising in the
appeal, rather than merely considering whether interference
with the judgment of the Trial Court was warranted.
48. On the above grounds, the learned counsel for
the appellant submitted that the First Appellate Court
committed an error in dismissing the appeal without
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RSA.5269 of 2011
adequately considering the material grounds urged by the
appellant and without recording appropriate findings on the
questions arising for determination. It was therefore
contended that the judgment of the First Appellate Court is
liable to be interfered with on this ground.
49. In this regard, the learned counsel for the
appellant has also placed reliance upon the judgment of the
Hon'ble Supreme Court in Malluru Mallappa (Dead) Through
Legal Representatives v. Kuruvathappa and Others , cited
supra. The said judgment is required to be considered in the
context of the second substantial question of law concerning
the duties and obligations of the First Appellate Court while
deciding an appeal on facts. The principles laid down
therein, particularly with regard to the scope of the
appellate Court's jurisdiction and its obligation to consider
the matter in accordance with law, shall be examined in the
light of the facts and circumstances of the present case.
“Order XLI, Rule 31 read with Section 96 CPC- First
appeal U/s 96 CPC is entirely different from a
second appeal under Section 100-Secion 100
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expressly bars second appeal unless a question of
law is involved in a case and question of law so
involved is substantial in nature.-Judgment of first
appellate Court has to set out points for
determination, record decision thereon and give its
own reasons.”
50. It is further observed that the settled position of
law is that an appeal is a continuation of the proceedings
instituted before the original Court. Ordinarily, the
jurisdiction of the appellate Court involves a rehearing of
the matter on questions of both law and fact. A first appeal
is a valuable statutory right conferred upon the aggrieved
party, and, in the exercise of such jurisdiction, the appellate
Court is entitled to reconsider all questions of fact and law
arising for determination in the appeal, subject to the
applicable provisions of law.
51. Therefore, the First Appellate Court is required to
consider the material issues arising in the appeal and decide
the same by recording appropriate reasons. Being the final
Court of fact, the First Appellate Court must independently
assess the oral and documentary evidence adduced by the
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parties and record its findings on the material questions of
fact and law arising for consideration. The judgment of the
First Appellate Court must demonstrate the conscious
application of judicial mind to the rival contentions, the
evidence on record and the grounds urged in the appeal.
The findings recorded must be supported by cogent reasons
so as to enable the parties and the higher Court to
understand the basis on which the appellate Court has
arrived at its conclusions.
52. The learned counsel for the appellant further
contended that the First Appellate Court failed to discharge
its statutory obligation under Order XLI Rule 31 of the Code
of Civil Procedure, 1908, which prescribes the essential
requirements of an appellate judgment. In this regard, the
learned counsel submitted that the First Appellate Court is
required to formulate the points for determination, record
its decision on each such point, state the reasons for its
decision and specify the relief to which the appellant is
entitled, wherever the decree is reversed or varied. It was
therefore argued that the First Appellate Court, while
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deciding Regular Appeal No.17/2010, ought to have
considered the material grounds urged by the appellant and
recorded reasoned findings on the questions arising for
determination, rather than merely framing broad points for
consideration. The judgment of the first appellate court
shall contain the points for determination, the decision
thereon, the reasons for the decision, where the decree
appealed from is reversed or varied, the relief to which the
appellant is entitled.
53. The learned counsel for the appellant contended
that, on a perusal of the impugned judgment passed by the
First Appellate Court, it is evident that the said Court has
not formulated specific points for consideration
corresponding to the material grounds urged by the
appellant in the memorandum of appeal. It was therefore
argued that the First Appellate Court failed to discharge its
statutory obligation to consider the material grounds raised
in the appeal and record appropriate findings thereon. On
this ground, the learned counsel submitted that the
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impugned judgment suffers from a legal infirmity and is
liable to be interfered with.
54. Per contra, the learned counsel appearing for the
first respondent/plaintiff submitted that, although the First
Appellate Court did not formulate separate points for
consideration corresponding to each of the grounds urged
by the appellant, it had framed the point as to whether the
Trial Court had committed any error in decreeing the suit. It
was further contended that the First Appellate Court, while
considering the said point, re-appreciated the oral and
documentary evidence available on record and, upon such
consideration, found no ground to interfere with the
judgment and decree passed by the Trial Court. Therefore,
according to the learned counsel, the mere absence of
separate points corresponding to each ground urged in the
appeal would not, by itself, render the impugned judgment
unsustainable in law.
55. In support of his contentions, the learned counsel
for the first respondent/plaintiff relied upon the judgment in
Azrath Bivi and Another v. Chinnathambi (Dead) through
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Legal Representatives , cited supra. It was contended that,
in a second appeal, the High Court would not ordinarily
interfere with concurrent findings of fact recorded by the
Courts below merely because another view of the evidence
is possible. Interference would be warranted where the
findings suffer from perversity, material legal infirmity or
any other defect giving rise to a substantial question of law.
56. In the present case, the first substantial question
of law concerns whether the Courts below erred in relying
upon Ex.P2 despite the plaintiff's failure to examine its
author and thereby failed to establish the document in
accordance with law. This Court has considered the rival
submissions and the evidence available on record and has
answered the said substantial question of law against the
appellant and in favour of the first respondent/plaintiff. The
second substantial question of law concerns whether the
First Appellate Court was justified in dismissing the appeal
without adequately considering the material grounds urged
by the appellant, particularly in view of its position as the
final Court of fact.
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57. It is well settled that the First Appellate Court is
the final Court of fact and is required to independently
consider the evidence on record and record reasoned
findings on the material questions arising for determination.
The requirements of Order XLI Rule 31 of the Code of Civil
Procedure, 1908, must be borne in mind while examining
the validity of an appellate judgment. However, the mere
failure to formulate separate points for consideration
corresponding to each ground urged in the memorandum of
appeal does not, by itself, render the judgment illegal or
liable to be set aside. The material consideration is whether
the points formulated and the reasons recorded by the First
Appellate Court demonstrate an independent and adequate
consideration of the material issues and evidence.
58. In the present case, on a careful perusal of the
reasoning assigned by the First Appellate Court, it appears
that, although the Court formulated a broad point for
consideration regarding the correctness of the judgment
and decree passed by the Trial Court, it proceeded to
examine the evidence on record and consider the merits of
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the dispute before dismissing the appeal. The First Appellate
Court ultimately concluded that the plaintiff had established
the case and that no ground was made out to interfere with
the judgment and decree of the Trial Court. In the absence
of any demonstrated failure to consider a material issue, or
any other infirmity affecting the legality of the appellate
judgment, the mere fact that separate points were not
framed corresponding to each ground urged by the
appellant would not constitute sufficient justification for
setting aside the impugned judgment. Accordingly, this
Court finds no ground to interfere with the judgment of the
First Appellate Court on this aspect. The second substantial
question of law is, therefore, answered against the
appellant.
59. In view of the foregoing discussion and the
answers recorded to the substantial questions of law, this
Court proceeds to pass the following:
ORDER
The appeal is dismissed.
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The judgment and decree dated 25.11.2009
passed by the learned III Addl.Civil Judge (Senior
Division) and Addl.MACT Belgaum, in Regular Appeal
No.17/2010, and the judgment and decree dated
05.03.2011 passed by the learned V Additional District
Judge, Belgaum in R.A. No.17/2010 is hereby confirmed.
The parties to bear their own costs.
Office is directed to send back the records along
with a copy of this judgment.
Sd/-
(RAJESHWARI N.HEGDE)
JUDGE
KKP
CT:CMU