Full Judgment Text
‘ REPORTABLE’
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 14699-14701 OF 2015
NEMAI CHANDRA DEY (DEAD) THROUGH LRS. Appellant(s)
VERSUS
PRASANTA CHANDRA (DEAD) THROUGH LRS. & ANR. Respondent(s)
J U D G M E N T
K. M. JOSEPH, J.
(1) This is yet another case where contrary to the vision
of the founding fathers, non-adherence to the principles
governing the exercise of power by the first appellate Court
has driven the parties to the highest Court. The principles
entrenched in Order XLI Rule 31 of the Code of Civil
Procedure, 1908, which has been the subject matter of catena
of decisions of this Court, lay down the manner in which an
appeal in a civil suit must be considered by the Appellate
court. A further appeal to the High Court lies only on
Signature Not Verified
Digitally signed by
Nidhi Ahuja
Date: 2022.04.25
17:17:58 IST
Reason:
substantial questions of law. Therefore, the law
contemplates that a party aggrieved by the decision of the
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trial Court gets full opportunity to have his grievance
investigated by the first Appellate Court which is expected
to reappreciate the evidence and consider the matter unless
it be that it purports to invoke the power under Order XLI
Rule 11.
(2) The plaintiff in this case was wife of the uncle of
the first defendant. Both the original plaintiff and the
first defendant have passed away. The lis is at present
being taken forward by their legal representatives.
This suit was one filed by the plaintiff seeking inter
alia declaration of two documents which are styled as gift
deeds dated 29.07.1990 and 30.07.1990 as void. The Suit
came to be filed in the year 1999. The prayer sought in the
suit are as follows:
“(a) There be a decree for declaration of title of
the plaintiff in the property described in Schedule B
and that the alleged two gift deeds are void and not
executed by the plaintiff and decree for permanent
injunction restaining the defendants from creating any
claim or breach of peace on the basis of the alleged
gift deed.
b) if the plaintiff is declared to have title in
property in schedule B according to the learned Court
or she is dispossessed during the pendency of the suit
then a decree for restitution of Vhas possession with
the help of court in the said property.
c) All costs of the court
d) Any other relief the Plaintiff may get in law or
equity be decree.”
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(3) Evidence was led by the parties. The plaintiff
herself was examined as PW 1. She has undoubtedly deposed
that the first defendant who was looking after her, after
the death of her husband, impressed upon her for the need
for a power of attorney and it is this which led her to
execute the documents which she discovered later were
actually gift deeds in favour of the defendant.
(4) The case of the appellants’ predecessor was that the
first defendant was, in fact, taking care of plaintiff after
the death of the paternal uncle of the first defendant and
it is out of love and affection and that the gift deeds were
indeed executed. The defendant has purported to examine the
scribe and attesting witness among other evidence. The
trial Court came to the conclusion on an appreciation of
evidence which, no doubt, according to the appellants, was
not carried out in the manner contemplated or warranted in
the facts of the case that the gift deeds were void and
liable to be cancelled. On the said reasoning, the trial
Court proceeded to decree the suit. The trial Court
proceeded on the basis that the plaintiff was a pardahnashin
lady and the character of the document was not brought to
the notice of the plaintiff.
(5) The first defendant appealed. In the first Appellate
Court, the problem of the parties begins. This is so for
the reason that contrary to the command of law which has
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been reiterated on a number of occasions by this Court, the
appellate Court finds as follows:
“I have gone through the find of both sides
referred by Ld. Lawyers of both sides. Both Mr. A. K.
Misra, Ld. Lawyer of the app and Mr. S.Rahaman,
Ld.Lawyer of Respondent have elaborately discussed the
findings referred by them.
After hearing argument of both sides and after
giving my anxious thought over the matter I am
constrained to hold that the argument of App is not
tenable and the argument of Respondent is much
acceptable and the decision cited by the Ld. Advocate
for the Respondent is sustainable and rightly accepted
by the court below and as such no interference in the
judgment and decree of the Court below is required by
any means.
As a result, this appeal is likely to be
dismissed and the judgment and decree passed by the
court below is affirmed. Hence it is ordered that the
appeal be and the same in dismissed on contest but
without cost.
Let a x-rox copy of the judgment be sent to Ld.
Lower Court at an early date.”
(6) We may only notice what this Court on one occasion has
declared in Madhukar and Others v. Sangram and Others (2001)
4 SCC 756. This Court, inter alia , referred to an earlier
judgment reported in Santosh Hazari v. Purushottam (2001) 3
SCC 179 wherein it is stated as follows:
“6. In Santosh Hazari v. Purushottam Tiwari [(2001) 3
SCC 179 : JT (2001) 2 SC 407] this Court opined: (SCC
pp. 188-89, para 15)
“The appellate court has jurisdiction to reverse
or affirm the 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
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of 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. … while
reversing a finding of fact the appellate court
must come 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 court had
discharged the duty expected of it.”
(7) We have no difficulty whatsoever in coming to the
conclusion that the first Appellate Court clearly has not
discharged its duties as the first Appellate Court. As
already 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
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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
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CIVIL APPEAL NOS. 14699-14701 OF 2015
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.
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CIVIL APPEAL NOS. 14699-14701 OF 2015
(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
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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.
(15) Accordingly, the impugned judgments will stand set
aside. The appeals are allowed. We remand the case back to
the first appellate Court which will take up T.A. No.
18/2010. The appellate Court will proceed to dispose of the
appeal with notice to the parties and bearing in mind the
principles which are well settled and do not require any
reiteration. As the appeal emanates from the suit of the
year 1999, we direct that the first appellate Court will
dispose of the appeal as early as possible and preferably
within a period of six months from the date on which a copy
of the judgment is placed before it. We make it clear that
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we have not pronounced on the merits of the either sides.
Parties will bear their respective costs.
…………………………………………………………………., J.
[ K.M. JOSEPH ]
…………………………………………………………………., J.
[ HRISHIKESH ROY ]
New Delhi;
April 19, 2022.
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ITEM NO.3 COURT NO.10 SECTION XVI
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal Nos. 14699-14701/2015
NEMAI CHANDRA DEY (DEAD) THROUGH LRS. Appellant(s)
VERSUS
PRASANTA CHANDRA (DEAD) THROUGH LRS. & ANR. Respondent(s)
(With IA No. 66542/2021 - GRANT OF INTERIM RELIEF)
Date : 19-04-2022 This matter was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE K.M. JOSEPH
HON'BLE MR. JUSTICE HRISHIKESH ROY
For Appellant(s) Mr. Joydeep Mazumdar, Adv.
Mr. Rabindra Narayan Dutta, Adv.
Mr. Rohit Dutta, Adv.
Mr. Priyata Chakraborty, Adv.
Ms. Shalini Kaul, AOR
For Respondent(s) Mr. Shaffi Mather, Adv.
Mr. Siddhartha Chowdhury, AOR
Mr. Amit Pawan, AOR
Mr. Hassan Zubair Waris, Adv.
Ms. Shivangi, Adv.
Mr. Aakarsh, Adv.
Mr. Abhishek Amritanshu, Adv.
UPON hearing the counsel the Court made the following
O R D E R
The appeals are allowed in terms of the signed
reportable judgment.
Pending application stands disposed of.
(NIDHI AHUJA) (RENU KAPOOR)
AR-cum-PS BRANCH OFFICER
[Signed reportable judgment is placed on the file.]
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