C. VENKATA SWAMYversusH. N. SHIVANNA (D) BY L.R. & ANR. ETC.

                           [2017] 12 S.C.R. 1


                       C. VENKATA SWAMY                                    A
                                   v.
           H. N. SHIVANNA (D) BY L.R. & ANR. ETC.
                  (Civil Appeal Nos.670-671 of2011)
                        DECEMBER 04, 2017                                  B
    [ABHAY MANOHAR SAPRE AND NAVIN SINHA, JJ.]
       Code of Civil Procedure, 1908: s.96 r/w Or.41 r.31 - First
appeal - Power/duty of appellate court under s.96 while deciding
first appeal - Held: A right to file first appeal against the decree
under s.96 is a valuable legal right of the litigant - The jurisdiction C
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 arrive at its own independent conclusion, for reasons assigned, D
either of affirnumce or difference - In the instant case, single judge
of High Court dismissed the appeals very cursorily and without
undertaking any appreciation of evidence, dealing with various
issues arising in the case and discussing the arguments raised by
the parties in support of their case - Thus, the disposal of the first E
appeals was not in conformity with the requirements of s.96 read
with Or.41 r.31 of the Code - Matter remitted to High Court for
consideration afresh .
     Allowing the appeals and remitting the maUcr to High Court,
the Court
                                                                           F
      HELD : The need to remand the case to the High Court
has occasioned for the reason that the Single Judge dismissed
the appeals very cursorily and without undertaking any
appreciation of evidence, dealing with various issues arising in
the case and discussing the arguments raised by the parties in
support of their case. In other words, the disposal of the two first       G
appeals could not be said to be in conformity with the
requirements of Section 96 read with Order 41 Rule 31 of the
Code. 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
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A   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 arrive at its own
B   independent conclusion, for reasons assigned, either of affirmance
    or difference. [Paras 10, 11) [4-C-E]
          Santosh Hazari v. Purushottam Tiwari (Deceased) by
          L.Rs. (2001) 3 SCC 179 : [2001) 1 SCR 948; Madhukar
          & Ors. v. Sangram & Ors. (2001) 4 SCC 756 : [2001)
          3 SCR 138 ; H.K.N. Swami v. Irshad Basith (2005) 10
c         SCC 243 ; Jagannath v. Arulappa & Am:, (2005) 12
          SCC 303 ; B. V. Nagesh & Am: v. H. V. Sreenivasa Murthy
          (2010) 13 SCC 530 : [2010) 11 SCR 784 ; State Bank
          of India & Am: v. Emmsons International Ltd. & Am:
          (2011) 12 SCC 174 : [2011) 10 SCR 436 ; Union of
D         India v. K. V. Lakshman & Ors. (2016) 13 SCC 124 -
          relied on.
          Kurian Chacko v. Varkey Ouseph AIR 1969 Kerala
          316 - approved.
                             ~ase Law Reference
E
    AIR 1969 Kerala 316              approved                 Para 13
    [2001) 1 SCR 948                 relied on                Para 16
    [2001) 3 SCR 138                 relied on                Para 17
    c2005) 10 sec 243                relied on                Para 18
F
    c2005) 12 sec 303                relied on                Para 19
    [2010) 11 SCR 784                relied on                 Para 20
    [2011] 10 SCR 436                relied on                Para 21

G   c2016) 13 sc;c 124                relied on                Para 21


          CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 670-
    671 of201 l.

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C. VENKATA SWAMY v. H.N. SHIVANNA (D) BY L.R. & ANR.                          3



      From the Judgment and Order dated 02.11.2006 of the High Court          A
of Karnataka at Bangalore in R. F. A. No. 158 c/w. R. F. A. No. 159 of
2005.
      Kiran Suri, Sr. Adv, S.J. Amith, Dr. (Mrs.) Vipin Gupta, Advs for
the Appellant.
      Rajesh Mahale, Adv for the Respondents.                                 B

      The Judgment of the Court was delivered by
      ABHAY MANOHAR SAPRE, J. 1. These appeals are filed
by the plaintiff against the final judgment and order dated 02.11.2006
passed by the High Court of Karnataka at Bangalore in Regular First           c
Appeal Nos.158 and 159 of2005 whereby the High Court dismissed the
appeals filed by the appellant herein
       2. The facts of the case lie in a narrow compass. Even the issue
arising in these appeals is a short one. It would be clear from the facts
mentioned hereinbelow.                                                        D
       3. The appellant is plaintiff in 0.S. No. 6640/1996 and defendant
in 0.S. No. 2150 of 1992 whereas the respondents are defendants in
O.S. No. 6640/1996 and plaintiffs in 0.S. No. 2150 of 1992 in the suits
out of which these appeals arise.
       4. The appellant filed a suit being O.S. No. 6640/1996 in the Court    E
of City Civil Judge, Bangalore against the respondents for a declaration
and permanent injunction in relation to the land described in detail in the
plaint (hereinafter referred to as "suit land") whereas original respondent
No.1 also filed a cross suit being 0.S. No. 2150 of 1992 against the
appellant in relation to the suit land.
                                                                              F
      5. Both the suits were clubbed together for their disposal because
both were between the same parties and pertained to same subject mutter.
       6. Parties contested the suits and adduced evidence. The Trial
Court, by common judgment/decree dated 04.12.2004 dismissed the suit
filed by the appellant, i.e., 0.S. No. 6640/1996 and decreed the suit filed   G
by respondent No.1, i.e., 0.S. No. 2150/1992.
       7. The plaintiff in 0.S. 6640/1996 felt aggrieved and filed two
first appeals under Section 96 of the Code of Civil Procedure, 1908
(hereinafter referred to as "the Code") before the High Court of
Karnataka. By impugned judgment/decree, the Single Judge dismissed            H
4             SUPREME COURT REPORTS                           [2017] 12 S.C.R.


A   both the first appeals and affirmed the judgment/decree of the Trial Court,
    which has given rise to filing of the present appeals by special leave by
    the plaintiff in O.S. No. 664011996 in this Court.
         8. Heard Ms. Kiran Suri, learned senior counsel for the appellant
    and Mr. Rajesh Mahale, learned counsel for the respondents.
B           9. Having heard the learned counsel for the parties and on perusal
     of the record of the case, we are constrained to allow the appeals, set
     aside the impugned judgment and remand the case to the High Court for
    ·deciding both the first appeals afresh on merits in accordance with law.
            IO. The need to remand the case to the High Court has occasioned
c   for the reason that the Single Judge dismissed the appeals very cursorily
    and without undertaking any appreciation of evidence, dealing with various
    issues arising in the case and discussing the arguments raised by the
    parties in support of their case. In other words, the disposal of the two
    first appeals could not be said to be in conformity with the requirements
D   of Section 96 read with Order 41 Rule 31 of the Code.
            11. It is a settled principle of law that a right to ffle 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
E   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 arrive at its own independent conclusion, for reasons assigned, either
    of affirmance or difference.
             12. Similarly, the powers of the first Appellate Court while deciding
     the first appeal are indeed well defined by various judicial pronouncements
F
     of this Court and are, therefore, no more res integra. It is apposite to
     take note of the law on this issue.
            13. As far back in 1969, the learnedJudge - V.R. Krishna Iyer, J
     (as His Lordship then was the judge ofKerala High Court) while deciding
G    the first appeal under Section 96 of the Code in Kurian Chacko vs.
     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 expression, the learned judge held as under:
            "1. The plaintiff, unsuccessful in two Courts, has come up
            here aggrieved by the dismissal of his suit which was one
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C. VENKATA SWAMY v. H.N. SHIVANNA (D) BY L.R. & ANR.                      5
            [ABHAY MANOHAR SAPRE, J.]

      for declaration of title and recovery of possession. The            A
      defendant disputed the plaintiff's title to the property as
      also his possession and claimed both in himself. The learned
      Munsif, who tried the suit, recorded findings against the
      plaintiff both on title and possession. But, in appeal, the
      learned Subordinate Judge disposed of the whole matter              B
      glibly and briefly, in a few sentences.
      2. An appellate court is the final Court of fact ordinarily and
      therefore a litieant is entitled to a full and fair and
      independent consideration of the evidence at the appellate
      staee. Anythini: less than this is unjust to him and I have
      no doubt that in the present case the learned Subordinate           C
      Judi:e has fallen far short of what is expected of him as an
      appellate Court. Although there is furious contest between
      the counsel for the appellant and for the respondent, they
      appear to agree with me in this observation ..... "
                                               (Emphasis supplied)        D

       14. This Court also in various cases reiterated the aforesaid
principle and laid down the powers of the Appellate Court under Section
96 of the Code while deciding the first appeal.
      15. We consider it apposite to refer to some of the decisions.      E
       16. In Santosh Hazari vs. Purushottam Tiwari (Deceased) by
L.Rs. (2001) 3 SCC 179, this Court held (at pages 188-189) as under:
      " .........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, F
      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
      mind and record findings supported by reasons, on all the
      issues arising along with the contentions put forth, and G
      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
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6             SUPREME COURT REPORTS                          [2017] 12 S.C.R.



A         hearing a further appeal that the first appellate court had
          discharged the duty expected of it ............ "
           17. The above view was followed by a three-Judge Bench decision
    of this Court in Madhukar & Ors. v. Sangram & Ors.,(2001) 4 SCC
    756, wherein it was reiterated that sitting as a Court of first appeal, it is
B   the duty of the High Court to deal with aJI the issues and the evidence
    led by the parties before recording its findings.
          18. In H.K.N. Swami v. Irshad Basith,(2005) JO 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
c          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
D          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."
           19. Again in Jagannath v. Arulappa & Anr.. (2005) 12 SCC
E   303, while considering the scope of Section 96 of the Code, this Court
    (at pp. 303-04) observed as foJlows:
           "2. A court of first appeal can reappreciate the entire
           evidence arid come to a different conclusion ..•......"
          20. Again in B. V Nagesh & Anr. vs. H. V. Sreenivasa Murthy,
F   (2010) 13 SCC 530, this Court taking note of aJI the earlier judgments of
    this Court reiterated the aforementioned principle with these words:
               "3. How the regular first appeal is to be disposed of by
           the appellate court/High Court has been considered by this
           Court in various decisions. Order 41 CPC deals with appeals
G          from original decrees. Among the various rules, Rule 31
           mandates that the judgment of the appellate court shall state:
                (a) the points for determination;
                 (b) the decision thereon;

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C. VENKATA SWAMY v. H.N. SHIVANNA (D) BY L.R. & ANR.                     7
            [ABHAY MANOHAR SAPRE, J.]

            (c) the reasons for the decision; and                        A
           (d) where the decree appealed from is reversed or
      varied, the relief to which the appellant is entitled.
            4. The appellate court has jurisdiction to reverse or
      affirm the findings of the trial court. The first appeal is a
      valuable right of the parties and unless restricted by law,        B
      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
      mind and record findings supported by reasons, on all the
      issues arising along with the contentions put forth, and           c
      pressed by the parties for decision of the appellate court.
      Sitting as a court of first appeal, 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. The first appeal is
      a valuable right and the parties have a right to be heard
      both on questions of law and on facts and the judgment in          D
      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. (Vide Santosh Hazari v. Puruslwttam Tiwari, (2001)
      3 SCC 179 at p. 188, para 15 and Madhukar v. Sangram,
      (2001) 4 sec 756 at p. 758, para 5.)                               E
              5. In view of the above salutary principles, on going
      through the impugned judgment, we feel that the High Court
      has failed to discharge the obligation placed on it as a first
      appellate court. In our view, the judgment under appeal is
      cryptic and none of the relevant aspects have even been            F
      noticed. The appeal has been decided in an unsatisfactory
      manner. Our careful perusal of the judgment in the regular
      first appeal shows that it falls short of considerations which
      are expected from the court 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          G
      Court and remand the regular first appeal to the High Court
      for its fresh disposal in accordance with law."
      21. The aforementioned cases were relied upon by this Court
while reiterating the same principle in State Bank of India & Anr. vs.
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8              SUPREME COURT REPORTS                     [2017] 12 S.C.R.


A   Emmsons I11ternatio11al Ud. & A11r., (2011) 12 SCC 174 and Union
    of India vs. K.V. Lakshman & Ors. (2016) 13 SCC 124.
          22. In the light of foregoing discussion, we have no option but to
    allow these appeals, set aside the impugned judgment and remand the
    case to the High Court for deciding the appeals afresh on merits in
B   accordance with law keeping in view our observations made supra.
          23. We, however, make it clear that we have refrained from making
    any observation on merits of the controversy having formed an opinion
    to remand the case to the High Court. The High Court would, therefore,
    decide the appeals uninfluenced by any of the observations in accordance
c   with Jaw. Since the appeals are quite old, we request the High Court to
    ensure expeditious disposal of the appeals.
           24. The appeals are accordingly allowed. Impugned judgment is
    set aside with the aforesaid directions.

D
    Devika Gujral                                             Appeals allowed.