MALLURU MALLAPPA (D) THR. LRS.versusKURUVATHAPPA & ORS.

                        [2020] 2 S.C.R. 789                              789


             MALLURU MALLAPPA (D) THR. LRS.                              A
                                  v.
                    KURUVATHAPPA & ORS.
                   (Civil Appeal No. 1485 of 2020)
                       FEBRUARY 12, 2020                                 B
      [S. ABDUL NAZEER AND SANJIV KHANNA, JJ.]
       Code of Civil Procedure, 1908 – ss.96, 100 and Or.XLI, r.31
– Appellant-plaintiff filed suit against respondents-defendants for
specific performance of agreement to sell – Defendant no.1 pleaded
                                                                         C
that the suit was barred by limitation and that the plaintiff was not
ready and willing to perform his part of the contract – Suit dismissed
– Confirmed by High Court – Held: s.96 provides for filing of an
appeal from the decree passed by any court exercising original
jurisdiction to the court authorized to hear the appeals from the
decisions of such courts – In the instant case, the appeal from the      D
decree passed by the trial court lies to High Court – An appeal is a
continuation of the proceedings of the original court – Ordinarily,
the appellate jurisdiction involves re-hearing on law as well as on
fact and is invoked by an aggrieved person – First appeal is a
valuable right of the appellant wherein all questions of fact and
                                                                         E
law decided by the trial court are open for re-consideration – A
first appeal u/s.96 is entirely different from a second appeal u/s.100
– s.100 expressly bars second appeal unless a question of law is
involved in a case and the question of law so involved is substantial
in nature – In the present case, issue relating to readiness and
willingness of the plaintiff to perform his part of the contract and     F
limitation were held against him and the suit was dismissed – Appeal
before High Court involved both disputed questions of law and
fact – Without examination of any of these aspects it dismissed the
appeal by a cryptic order – High Court failed to follow the provisions
of Or.XLI, r.31 while deciding the appeal – Judgment set aside –
                                                                         G
Matter remanded to High Court for fresh disposal in accordance
with law – Limitation Act, 1963 – Article 54 of the Schedule.
     Words & Expressions – ‘appeal’ – Meaning of – Held:
Expression ‘appeal’ has not been defined in CPC – It is a judicial
                                                                         H
                                 789
790            SUPREME COURT REPORTS                      [2020] 2 S.C.R.


A     examination of the decision by a higher court of the decision of a
      subordinate court to rectify any possible error in the order under
      appeal – Code of Civil Procedure, 1908 – s.96.
            Partly allowing the appeal, the Court
             HELD: 1.1 Section 96 of the CPC provides for filing of an
B     appeal from the decree passed by any court exercising original
      jurisdiction to the court authorized to hear the appeals from the
      decisions of such courts. In the instant case, the appeal from the
      decree passed by the trial court lies to the High Court. The
      expression ‘appeal’ has not been defined in the CPC. It is a judicial
C     examination of the decision by a higher court of the decision of a
      subordinate court to rectify any possible error in the order under
      appeal. An appeal is a continuation of the proceedings of the
      original court. Ordinarily, the appellate jurisdiction involves a
      re-hearing on law as well as on fact and is invoked by an aggrieved
      person. The first appeal is a valuable right of the appellant and
D     therein all questions of fact and law decided by the trial court are
      open for re-consideration. The judgment of the first appellate
      court must display conscious application of mind and record
      findings supported by reasons on all issues and contentions. A
      first appeal under Section 96 of the CPC is entirely different from
E     a second appeal under Section 100. Section 100 expressly bars
      second appeal unless a question of law is involved in a case and
      the question of law so involved is substantial in nature. [Paras
      11, 14 and 15][793-G-H; 794-A-B, F-H; 795-A-C]
            1.2 The judgment of the first appellate court has to set out
F     points for determination, record the decision thereon and give
      its own reasons. Even when the first appellate court affirms the
      judgment of the trial court, it is required to comply with the
      requirement of Order XLI Rule 31 and non-observance of this
      requirement leads to infirmity in the judgment of the first appellate
      court. The issue relating to readiness and willingness of the
G     plaintiff to perform his part of the contract and issue relating to
      limitation were held against the plaintiff and the suit was
      dismissed. The appeal before the High Court involved both
      disputed questions of law and fact. The High Court without
      examination of any of these aspects dismissed the appeal by a
H     cryptic order. The court below neither reappreciated the evidence
 MALLURU MALLAPPA (D) THR. LRS. v. KURUVATHAPPA                   791


of the parties, nor it passed a reasoned order. The High Court    A
has failed to follow the provisions of Order XLI Rule 31 of the
CPC while deciding the appeal. The judgment and decree of the
High Court is set aside and the matter is remanded to the High
Court for fresh disposal in accordance with law. [Paras 19-21]
[797-B-G]
                                                                  B
     Hari Shankar v. Rao Girdhari Lal Chowdhury AIR 1963
     SC 698 : [1962] Suppl. SCR 933; Shankar
     Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat
     (1969) 2 SCC 74 : [1970] 1 SCR 322; Vinod Kumar v.
     Gangadhar (2015) 1 SCC 391 : [2014] 10 SCR 1050;
     Shasidhar and Ors. v. Ashwani Uma Mathad & Anr.              C
     (2015) 11 SCC 269 : [2015] 2 SCR 1– relied on.
     Santosh Hazari v. Purushottam Tiwari (Deceased) By
     Lrs. (2001) 3 SCC 179 : [2001] 1 SCR 948; Madhukar
     and others v. Sangram and Others (2001) 4 SCC 756 :
     [2001] 3 SCR 138; B. M. Narayana Gowda v.                    D
     Shanthamma (Dead) By LRs. and Another (2011) 15
     SCC 476; H. K. N. Swami v. Irshad Basith (Dead) By
     LRs. (2005) 10 SCC 243; M/s. Sri Raja Lakshmi Dyeing
     Works v. Rangaswamy Chettiar (1980) 4 SCC 259 –
     referred to.                                                 E
     Black’s Law Dictionary (7th Edn.) – referred to.
                     Case Law reference
[1962] Suppl. SCR 933        relied on              Para 12
[1970] 1 SCR 322             relied on              Para 13       F
[2001] 1 SCR 948             referred to            Para 14
[2001] 3 SCR 138             referred to            Para 14
(2011) 15 SCC 476            referred to            Para 14
(2005) 10 SCC 243            referred to            Para 14       G

(1980) 4 SCC 259             referred to            Para 14
[2014] 10 SCR 1050           relied on              Para 17
[2015] 2 SCR 1               relied on              Para 18
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792            SUPREME COURT REPORTS                           [2020] 2 S.C.R.


A           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1485
      of 2020.
            From the Judgment and Order dated 09.02.2012 of the High Court
      of Karnataka at Bangalore in Regular First Appeal No. 1731 of 2006
      (SP).
B           S. N. Bhat, Adv. for the Appellants.
             The Judgment of the Court was delivered by
            S. ABDUL NAZEER, J.
            1. Delay condoned. Leave granted.
C
            2. This is the plaintiff’s appeal challenging the judgment and decree
      in RFA No.1731 of 2006 dated 09.02.2012 passed by the High Court of
      Karnataka at Bangalore, whereby the High Court has confirmed the
      judgment and decree passed by the trial court in O.S. No. 32 of 2005
      dated 09.06.2006.
D
            3. The plaintiff filed the above suit against the respondents/
      defendants for specific performance of the agreement to sell dated
      30.3.2000. The agreement provided that the sale was to be executed
      within three years from the date of the agreement, subject to the
      defendants fulfilling certain obligations.
E            4. Defendant No.1 filed the written statement and the other
      defendants filed a memo adopting the same as their written statement.
      Defendant No.1 admitted the execution of the agreement to sell in favour
      of the plaintiff. However, the defendant pleaded that the suit was barred
      by limitation. It was further contended that plaintiff was not ready and
F     willing to perform his part of the contract.
           5. Based upon the rival pleadings of the parties, the trial court
      framed the following issues: -
            “1. Whether the plaintiff proves that, the defendants 1 and 2 their
            father have executed an agreement to sell on 30.3.2000 for
G           Rs.2,00,000/- in favour of the plaintiff after receiving
            Rs.1,50,000/- as earnest money?
            2. Whether the plaintiff proves that, he is always ready and willing
            to perform his part of contract?
            3. Whether the suit of the plaintiff is barred by limitation?
H
 MALLURU MALLAPPA (D) THR. LRS. v. KURUVATHAPPA                                793
             [S. ABDUL NAZEER, J.]

      4. What order or decree?”                                                A
       6. The plaintiff got himself examined as PW-1 and Ex. P-1, P1(a)
to (c) were marked in his evidence. The defendant No.1 was examined
as DW1 and three other witnesses were examined as DW-2 to 4. On
appreciation of the evidence on record, the trial court held that the suit
was barred by time. It was also held that the plaintiff was not ready and      B
willing to perform his part of the contract. The suit was accordingly
dismissed.
       7. As noticed above, the High Court has confirmed the said decree
of the trial court.
       8. We have heard Shri S.N. Bhat, learned counsel for the appellant/     C
plaintiff. Though notice was served on the respondents, no one has entered
appearance on their behalf.
       9. Shri Bhat, learned counsel, has made two-fold submissions.
Firstly, he submits that the High Court has passed a cryptic judgment
without reappreciating the evidence on record. It was argued that the          D
first appeal filed by the plaintiff under Section 96 of the Code of Civil
Procedure, 1908 (for short ‘the CPC’) was a continuation of the suit
and it was incumbent upon the High Court to reassess the entire evidence
on record. It was argued that the High Court as an appellate court has
failed to follow the guidelines provided under Order XLI Rule 31 of the        E
CPC while deciding the appeal. Secondly, it was argued that the agreement
to sell was dated 30.03.2000, providing for three years’ time from the
date of the agreement to complete the execution of the sale deed. The
suit was filed on 28.01.2005 which was well within time. Referring to
Article 54 of the Schedule to the Limitation Act, 1963, (for short ‘the
Limitation Act’) it was submitted that when a date is fixed for performance    F
of the contract, the period of limitation for filing the suit is three years
from the date fixed for the performance. It was further argued that
there is no finding by the High Court as to the readiness and willingness
of the plaintiff to perform his part of the contract.
     10. We have carefully considered the submission of the learned            G
counsel made at the Bar and perused the materials placed on record.
       11. Section 96 of the CPC provides for filing of an appeal from
the decree passed by any court exercising original jurisdiction to the
court authorized to hear the appeals from the decisions of such courts.
In the instant case, the appeal from the decree passed by the trial court      H
794               SUPREME COURT REPORTS                            [2020] 2 S.C.R.


A     lies to the High Court. The expression ‘appeal’ has not been defined in
      the CPC. Black’s Law Dictionary (7th Edn.) defines an appeal as “a
      proceeding undertaken to have a decision reconsidered by bringing it to
      a higher authority.” It is a judicial examination of the decision by a
      higher court of the decision of a subordinate court to rectify any possible
      error in the order under appeal. The law provides the remedy of an
B
      appeal because of the recognition that those manning the judicial tiers
      too commit errors.
             12. In Hari Shankar v. Rao Girdhari Lal Chowdhury1 it was
      held that a right of appeal carries with it a right of re-hearing on law as
      well as on fact, unless the statute conferring a right of appeal limits the
C     re-hearing in some way as has been done in second appeal arising under
      the CPC.
            13. In Shankar Ramchandra Abhyankar v. Krishnaji
      Dattatreya Bapat2 it was held thus:
D              5. ……….. In the well known work of Story on Constitution (of
               United States), Vol. 2, Article 1761, it is stated that the essential
               criterion of appellate jurisdiction is that it revises and corrects the
               proceedings in a cause already instituted and does not create that
               cause. The appellate jurisdiction may be exercised in a variety of
               forms and, indeed, in any form in which the Legislature may choose
E              to prescribe. According to Article 1762 the most usual modes of
               exercising appellate jurisdiction, at least those which are most
               known in the United States, are by a writ of error, or by an appeal,
               or by some process of removal of a suit from an inferior tribunal.
               An appeal is a process of civil law origin and removes a cause,
F              entirely subjecting the fact as well as the law, to a review and a
               retrial…….”
             14. It is a settled position of law that an appeal is a continuation of
      the proceedings of the original court. Ordinarily, the appellate jurisdiction
      involves a re-hearing on law as well as on fact and is invoked by an
G     aggrieved person. The first appeal is a valuable right of the appellant
      and therein all questions of fact and law decided by the trial court are
      open for re-consideration. Therefore, the first appellate court is required
      to address itself to all the issues and decide the case by giving reasons.
      The court of first appeal must record its findings only after dealing with
      1
          AIR 1963 SC 698
H     2
          1969 (2) SCC 74
    MALLURU MALLAPPA (D) THR. LRS. v. KURUVATHAPPA                             795
                [S. ABDUL NAZEER, J.]

all issues of law as well as fact and with the evidence, oral as well as       A
documentary, led by the parties. The judgment of the first appellate court
must display conscious application of mind and record findings supported
by reasons on all issues and contentions [see: Santosh Hazari v.
Purushottam Tiwari (Deceased) By Lrs.3, Madhukar and others
v. Sangram and Others4, B. M. Narayana Gowda v. Shanthamma
                                                                               B
(Dead) By Lrs. and Another5, H. K. N. Swami v. Irshad Basith
(Dead) By Lrs. 6 and M/s. Sri Raja Lakshmi Dyeing Works v.
Rangaswamy Chettiar7].
      15. A first appeal under Section 96 of the CPC is entirely different
from a second appeal under Section 100. Section 100 expressly bars
second appeal unless a question of law is involved in a case and the           C
question of law so involved is substantial in nature.
      16. Order XLI Rule 31 of the CPC provides the guidelines for the
appellate court to decide the matter. For ready reference Order XLI
Rule 31 of the CPC is as under: -
                                                                               D
       “31. Contents, date and signature of judgment.- The judgment
       of the Appellate Court shall be in writing and shall state—
              (a) the points for determination;
              (b) the decision thereon;
                                                                               E
              (c) the reasons for the decision; and
              (d) where the decree appealed from is reversed or varied,
                 the relief to which the appellant is entitled;
       and shall at the time it is pronounced be signed and dated by the
       Judge or by the Judges concurring therein.”                             F

       17. In Vinod Kumar v. Gangadhar8 this Court has reiterated the
principles to be borne in mind while disposing of a first appeal, as under:-
       “15. Again in B.V. Nagesh v. H.V. Sreenivasa Murthy [(2010)
       13 SCC 530 : (2010) 4 SCC (Civ) 808] , this Court taking note of        G
3
  (2001) 3 SCC 179
4
  (2001) 4 SCC 756
5
  (2011) 15 SCC 476
6
  (2005) 10 SCC 243
7
  (1980) 4 SCC 259
8
  (2015) 1 SCC 391                                                             H
796               SUPREME COURT REPORTS                            [2020] 2 S.C.R.


A              all the earlier judgments of this Court reiterated the aforementioned
               principle with these words: (SCC pp. 530-31, paras 3-5)
                  “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 from
B                 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;
                  (c) the reasons for the decision; and
C
                  (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
D                 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 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
E                 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 the first
                  appeal must address itself to all the issues of law and fact and
F
                  decide it by giving reasons in support of the findings. (Vide
                  Santosh Hazari v. Purushottam Tiwari [(2001) 3 SCC 179 :
                  (2001) 1 SCR 948] , SCC p. 188, para 15 and Madhukar v.
                  Sangram [(2001) 4 SCC 756] SCC p. 758, para 5.)”
             18. In Shasidhar and Ors. v. Ashwani Uma Mathad and Anr.9,
G     it was held as under:-
               “21. Being the first appellate court, it was, therefore, the duty of
               the High Court to decide the first appeal keeping in view the scope
               and powers conferred on it under Section 96 read with Order 41
      9
H         (2015) 11 SCC 269
 MALLURU MALLAPPA (D) THR. LRS. v. KURUVATHAPPA                                  797
             [S. ABDUL NAZEER, J.]

      Rule 31 of the Code mentioned above. It was unfortunately not              A
      done, thereby, causing prejudice to the appellants whose valuable
      right to prosecute the first appeal on facts and law was adversely
      affected which, in turn, deprived them of a hearing in the appeal
      in accordance with law.”
       19. It is clear from the above provisions and the decisions of this       B
Court that the judgment of the first appellate court has to set out points
for determination, record the decision thereon and give its own reasons.
Even when the first appellate court affirms the judgment of the trial
court, it is required to comply with the requirement of Order XLI Rule
31 and non-observance of this requirement leads to infirmity in the
judgment of the first appellate court. No doubt, when the appellate court        C
agrees with the views of the trial court on evidence, it need not restate
effect of evidence or reiterate reasons given by trial court. Expression
of a general agreement with the reasons given by the trial court would
ordinarily suffice.
        20. Keeping in mind the above principles, let us examine the present     D
case. As stated above, the issue relating to readiness and willingness of
the plaintiff to perform his part of the contract and issue relating to
limitation were held against the plaintiff and the suit was accordingly
dismissed. The appeal before the High Court involved both disputed
questions of law and fact. The High Court without examination of any
of these aspects has dismissed the appeal by a cryptic order. The court          E
below has neither reappreciated the evidence of the parties, nor it has
passed a reasoned order. The High Court has failed to follow the provisions
of Order XLI Rule 31 of the CPC while deciding the appeal. Mr. Bhat
has argued that the suit was well within time under Article 54 of the
Schedule to the Limitation Act. Even this question has not been examined         F
in its proper perspective.
       21. In the result, the appeal succeeds and is accordingly allowed
in part. The judgment and decree of the High Court in RFA No.1731 of
2006 dated 09.02.2012, is set aside and the matter is remanded to the
High Court for fresh disposal in accordance with law.
                                                                                 G
      22. All the contentions of the parties are left open. There will be
no order as to costs.


Divya Pandey                 Appeal partly allowed and remanded to High Court.
                                                                                 H