NEMAI CHANDRA DEY (DEAD) THROUGH LRS. versus PRASANTA CHANDRA (DEAD) THROUGH LRS. & ANR.

[2022] 4 S.C.R.

ANEMAI CHANDRA DEY (DEAD) THROUGH LRS.

PRASANTA CHANDRA (DEAD) THROUGH LRS. & ANR.

(Civil Appeal Nos. 14699-14701 of 2015)

APRIL 19, 2022

[K. M. JOSEPH AND HRISHIKESH ROY, JJ.]

Civil Procedure Code, 1908 – Or. XLI, r. 31 – Duty of firstAppellate Court – Reappreciation of evidence – Consideration ofCarguments and arriving at findings – Suit was filed by the plaintiff(wife of the uncle of the first defendant) seeking inter alia declarationof two documents i.e. gift deeds as void – Trial Court came to theconclusion that the plaintiff was pardahnashin lady and thecharacter of the document was not brought to the notice of theDplaintiff – Gift deeds were declared void – Trial Court decreed thesuit – First Appellate Court dismissed the appeal withoutreappreciating the evidence led by the parties – In the second appeal,the High Court proceeded to find that the judgment of the trialCourt was elaborate and detailed – Also, the contentions of theplaintiff was inevitable and the Courts below was correct in arrivingEat the findings – On appeal, held: First Appellate Court has notdischarged its duties as the first Appellate Court – It is the boundenduty of the first Appellate Court to deal with appeals within theconfines of law and keeping in mind the principles which have beenenumerated u/Or. XLI, r.31 and various judgments of the SupremeFCourt – That means the first Appellate Court will reappreciate theevidence, consider the arguments and apply the law and arrive atfindings – Only then limiting of the jurisdiction of the High Courtto only cases where substantial question of law arises would bejustified – Approach to the Supreme Court u/Art. 136 could be onrare occasions only – Therefore, in the interest of justice, the matterGremanded to the first Appellate Court.

Allowing the appeals, the Court

HELD: 1. The High court has proceeded on the basis thatthe consideration by the first appellate Court to the findings ofHthe trial Court constituted concurrent findings as if this is case

where the first appellate Court has discharged its duties and givenits approval to the trial Court findings. One could have understoodthe High Court so holding in case where the first appellateCourt had considered the appeal in the manner provided by lawand as established by long line of judgments. It is clear that thisis indeed one such case where by virtue of the first appellateCourt having failed to discharge its duties, in the facts of thiscase, remand to the first appellate Court is warranted. This is sofor the reason that the suit was contested. Parties led elaborateevidence. What is taken in defence was the validity of the tworegistered gift deeds, which according to the first defendant wereexecuted lawfully. In this connection there is contention raisedby the appellants that the plaintiff has executed number ofdocuments by way of sale deeds. The plaintiff, according to theappellants was, in fact, literate, though pardahnashin lady. Thefirst defendant has case that it was suit which was laid on thestrength 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 examined as witness. The attesting witnesshas been examined. In this case, no doubt, the plaintiff has givenevidence that she executed the gift deeds in question on thebasis of her being under the impression that power of attorneywas executed. There were other items of evidence which werebefore the Court also. This Court is of the view that the interestof justice do require remand to the first appellate Court in thenature of the order which has been passed by the Courts.Accordingly, the impugned judgments will stand set aside. Theappeals are allowed and the case is remanded back to the firstappellate Court. [Paras 14 & 15][1082-E-H; 1083-A-D

Santosh Hazari v. Purushottam (2001) 3 SCC 179 :[2001] 1 SCR 948 – relied on.

Madhukar and Others v. Sangram and Others (2001)4 SCC 756 : [2001] 3 SCR 138; Mst. Kharbuja Kuer v.Jangbahadur Rai and Others AIR 1963 1203 : [1963]1 SCR 456 - referred to.

ACase Law Reference

BCIVIL APPELLATE JURISDICTION: Civil Appeal Nos.14699-14701 of 2015.

From the Judgment and Order dated 12.12.2013 of the High Courtof Calcutta in S.A.T. No.40 of 2013 and Order dated 25.03.2014 inS.A.T. No.40 of 2013 with C.A.N. No.12727 of 2013.C

Joydeep Mazumdar, Rabindra Narayan Dutta, Rohit Dutta, PriyataChakraborty, Ms. Shalini Kaul, Advs. For the Appellants.

Shaffi Mather, Siddhartha Chowdhury, Amit Pawan, Hassan ZubairWaris, Ms. Shivangi, Aakarsh, Abhishek Amritanshu, Advs. for theDRespondents.

The Judgment of the Court was delivered by

K. M. JOSEPH, J.

(1) This is yet another case where contrary to the vision of theEfounding fathers, non-adherence to the principles governing the exerciseof power by the first appellate Court has driven the parties to the highestCourt. The principles entrenched in Order XLI Rule 31 of the Code ofCivil Procedure, 1908, which has been the subject matter of catena ofdecisions of this Court, lay down the manner in which an appeal in civilFsuit must be considered by the Appellate court. further appeal to theHigh Court lies only on substantial questions of law. Therefore, the lawcontemplates that party aggrieved by the decision of the trial Courtgets full opportunity to have his grievance investigated by the firstAppellate Court which is expected to reappreciate the evidence andconsider the matter unless it be that it purports to invoke the powerGunder Order XLI Rule 11.

(2) The plaintiff in this case was wife of the uncle of the firstdefendant. Both the original plaintiff and the first defendant have passedaway. The lis is at present being taken forward by their legalrepresentatives.H

This suit was one filed by the plaintiff seeking inter alia declarationof two documents which are styled as gift deeds dated 29.07.1990 and30.07.1990 as void. The Suit came to be filed in the year 1999. Theprayer sought in the suit are as follows:

“(a) There be decree for declaration of title of the plaintiff in theproperty described in Schedule and that the alleged two giftdeeds are void and not executed by the plaintiff and decree forpermanent injunction restaining the defendants from creating anyclaim 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 Baccording to the learned Court or she is dispossessed during thependency of the suit then decree for restitution of Vhas possessionwith 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.”

(3) Evidence was led by the parties. The plaintiff herself wasexamined as PW 1. She has undoubtedly deposed that the first defendantwho was looking after her, after the death of her husband, impressedupon her for the need for power of attorney and it is this which led herto execute the documents which she discovered later were actually giftdeeds in favour of the defendant.

(4) The case of the appellants’ predecessor was that the firstdefendant was, in fact, taking care of plaintiff after the death of thepaternal uncle of the first defendant and it is out of love and affectionand that the gift deeds were indeed executed. The defendant has purportedto examine the scribe and attesting witness among other evidence. Thetrial Court came to the conclusion on an appreciation of evidence which,no doubt, according to the appellants, was not carried out in the mannercontemplated or warranted in the facts of the case that the gift deedswere void and liable to be cancelled. On the said reasoning, the trialCourt proceeded to decree the suit. The trial Court proceeded on thebasis that the plaintiff was pardahnashin lady and the character of thedocument was not brought to the notice of the plaintiff.

(5) The first defendant appealed. In the first Appellate Court, theproblem of the parties begins. This is so for the reason that contrary tothe command of law which has been reiterated on number of occasionsby 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 theapp and Mr. S.Rahaman, Ld.Lawyer of Respondent haveelaborately discussed the findings referred by them.

After hearing argument of both sides and after giving myanxious thought over the matter I am constrained to hold that theargument of App is not tenable and the argument of Respondentis much acceptable and the decision cited by the Ld. Advocatefor the Respondent is sustainable and rightly accepted by the courtbelow and as such no interference in the judgment and decree ofthe Court below is required by any means.

As result, this appeal is likely to be dismissed and the judgmentand decree passed by the court below is affirmed. Hence it isordered that the appeal be and the same in dismissed on contestbut without cost.

DLet x-rox copy of the judgment be sent to Ld. Lower Courtat an early date.”

(6) We may only notice what this Court on one occasion hasdeclared in Madhukar and Others v. Sangram and Others (2001) 4SCC 756. This Court, inter alia, referred to an earlier judgment reportedEin Santosh Hazari v. Purushottam (2001) 3 SCC 179 wherein it isstated as follows:

“6. In Santosh Hazari v. Purushottam Tiwari [(2001) 3 SCC179 : JT (2001) 2 SC 407] this Court opined: (SCC pp. 188-89,para 15)

F“The appellate court has jurisdiction to reverse or affirm thefindings of the trial court. First appeal is valuable right of theparties and unless restricted by law, the whole case is thereinopen for rehearing both on questions of fact and law. Thejudgment of the appellate court must, therefore, reflect itsconscious application of mind and record findings supportedGby reasons, on all the issues arising along with the contentionsput forth, and pressed by the parties for decision of the appellatecourt. … while reversing finding of fact the appellate courtmust come into close quarters with the reasoning assigned bythe trial court and then assign its own reasons for arriving at aHdifferent finding. This would satisfy the court hearing further

appeal that the first appellate court had discharged the dutyexpected of it.”

(7) We have no difficulty whatsoever in coming to the conclusionthat the first Appellate Court clearly has not discharged its duties as thefirst Appellate Court. As already noticed, the scheme of the Constitution,inter alia, is that the findings of fact are ordinarily to attain finality at thehands of the Court of Appeal and it is only on substantial questions oflaw that the High Court can interfere in the findings of the first AppellateCourt. Therefore, apart from reiterating that it is valuable right of theparty which is at stake, it would not be conducive to the interest ofadministration of justice that findings of fact are rendered without duecare and application of mind to the evidence and the law governing theparties. We say for the reason that any breach of duty by the first appellateCourt in this regard has far reaching consequences on the administrationof justice.

(8) The case which is not decided in the manner contemplatedunder law, can finally culminate in the litigants approaching the highestCourt and invoking power under Article 136 of the Constitution of India.Power under Article 136 is intended to be used rarely. This is anextraordinary jurisdiction.

(9) The founding fathers contemplated that Courts at each leveldischarge their duties as contemplated under law. That means that thefirst Appellate Court will reappreciate the evidence, consider thearguments and apply the law and arrive at findings. Only then limiting ofthe jurisdiction of the High Court to only cases where substantial questionof law arises would be justified. Approach to this Court under Article136 could be on rare occasions only. We say nothing more except toreiterate that it is the bounden duty of the first appellate Court to dealwith appeals within the confines of law and keeping in mind the principleswhich have been enumerated under Order XLI Rule 31 and variousjudgments of this Court.

(10) Being dissatisfied, the appellants carried the matter to theHigh Court in second appeal.

On one occasion, the High Court dismissed the appeal on accountof the absence of the appellants and under Order XLI Rule 11. This isimpugned. Thereafter the matter was taken up and then followed thenext impugned judgment. In the said impugned judgment, the High Court

Aproceeded to find that the judgment of the trial Court was elaborate anddetailed and thereafter, the Court was of the view that the contentionsof the plaintiff was inevitable and the Court below was correct in arrivingat the findings returned. The appellants was not able to show anyperversity in the impugned judgments. The five substantial questions oflaw did not appeal to the Court. The appellants did not show any materialBto establish that the findings of fact returned by the trial Court andaffirmed in appeal was perverse. And so far as burden of proof wasconcerned, the trial Court had not acted irregularly in arriving at thefindings. Therefore, the Court did not find it appropriate to recall theorder.C

(11) When this Court initially heard the matter, on 25.08.2014, itissued notice and also granted stay of further proceeding of execution.Thereafter, it would appear that by order dated 16.12.2015, the interimorder granted earlier was vacated. But by the same order, the Courtgranted leave and it is thereafter, the matter came before us.

D(12) We have heard the learned counsel for the appellants andalso the learned counsel for the respondents.

(13) Learned counsel for the appellants would point out that thecase of the appellants has not been considered by the appellate Court,the point which we have already noted. No doubt, learned counsel forEthe respondents supported the order of the High Court.

(14) As we have noticed, the High court has proceeded on thebasis that the consideration by the first appellate Court to the findings ofthe trial Court constituted concurrent findings as if this is case wherethe first appellate Court has discharged its duties and given its approvalFto the trial Court findings. One could have understood the High Court soholding in case where the first appellate Court had considered theappeal in the manner provided by law and as established by long line ofjudgments. We are clear in mind that this is indeed one such case whereby virtue of the first appellate Court having failed to discharge its duties,Gin 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 ledelaborate evidence. What is taken in defence was the validity of the tworegistered gift deeds, which according to the first defendant wereexecuted lawfully. In this connection there is contention raised by theappellants that the plaintiff has executed number of documents byH

way of sale deeds. The plaintiff, according to the appellants was, in fact,literate, though pardahnashin lady. The first defendant has case thatit was suit which was laid on the strength of the influence wielded bythe nephew of the plaintiffs-sister in whose house the plaintiff was stayingfor some time. The scribe has been examined as witness. The attestingwitness has been examined. We may notice in this regard, no doubt thatin respect of pardahnashin lady, this Court has followed the view takenby the Privy Council and reiterated the principles in Mst. KharbujaKuer v. Jangbahadur Rai and Others AIR 1963 1203. In this case, nodoubt, the plaintiff has given evidence that she executed the gift deeds inquestion on the basis of her being under the impression that power ofattorney was executed. There were other items of evidence which werebefore the Court also. We do not wish to say anything more in view ofthe order of remand that we are passing. We are of the view that theinterest of justice do require remand to the first appellate Court in thenature 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 appellateCourt which will take up T.A. No. 18/2010. The appellate Court willproceed to dispose of the appeal with notice to the parties and bearing inmind the principles which are well settled and do not require anyreiteration. As the appeal emanates from the suit of the year 1999, wedirect that the first appellate Court will dispose of the appeal as early aspossible and preferably within period of six months from the date onwhich copy of the judgment is placed before it. We make it clear thatwe have not pronounced on the merits of the either sides.

Parties will bear their respective costs.

Ankit Gyan

Appeals allowed.

(Assisted by : Rahul Rathi, LCRA)