Supreme Court: First appellate court must give reasons on all issues and contentions

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 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 all issues of law as well as fact and with the evidence, oral as well as 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.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1485 of 2020 

Decided On: 12.02.2020

 Malluru Mallappa  Vs.   Kuruvathappa and Ors.

Hon'ble Judges/Coram:

S. Abdul Nazeer and Sanjiv Khanna, JJ.

Author:S. Abdul Nazeer, J.

Citation: (2020) 4 SCC 313,MANU/SC/0166/2020

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Whether high court can decide appeal on merit if it was preferred against order of remand?

The High Court failed to see that when the first Appellate Court itself did not decide the appeal on merits and considered it proper to remand the case to the Trial Court, a fortiori, the High Court had no jurisdiction to decide the appeal on merits. Moreover, Order 43 Rule 1(u) confers limited power on the High Court to examine only the legality and correctness of the remand order of the first Appellate Court but not beyond that. In other words, the High Court should have seen that Order 43 Rule 1(u) gives a limited power to examine the issue relating to legality of remand order, as is clear from Order 43 Rule 1(u) which reads thus:- “1(u) an order under rule 23 or rule 23A of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court”

25) It is well settled law that the jurisdiction to decide the appeal on merits can be exercised by the Appellate Court only when the appeal is filed under Section 96 or 100 of the Code against the decree. Such was not the case here.

Reportable

Supreme Court of India

J. Balaji Singh vs Diwakar Cole & Ors on 24 April, 2017

Bench: R.K. Agrawal, Abhay Manohar Sapre

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Procedure is to be followed by high court while deciding second appeal U/S 100 of CPC

 On perusal of the judgment it clearly shows that the High Court neither set out the case of the parties from their pleadings properly nor mentioned the findings recorded by the Trial Court and nor of the first appellate court. The High Court also did not examine the case in the context of legal provisions governing the issues and nor dealt with any submissions urged by the parties much less to record categorical finding on the questions framed.

17. On the contrary, we notice that the High Court in para 5 formulated another question as the only question arising in the case for decision which was not formulated as substantial question of law along with two questions already framed.

18. In our considered opinion, it was legally obligatory upon the High Court to properly set out the case of the parties, findings recorded by the Trial Court and the first Appellate Court, arguments of the parties on the questions of law framed and then answer the questions framed in the light of law applicable to the controversy involved by giving its reasoning. Order 20 Rule 4(2) and Rule 5 read with Order 41 Rule 31 provides for this requirement.

19. We may also consider apposite to mention that this Court had the occasion to examine the scope of Section 100 of the Code in Santosh Hazaro vs. Purushottam Tiwari (deceased) by LRs., [(2001) 3 SCC 179], wherein Justice R.C. Lahoti (as His Lordship then was and later became CJI) speaking for the three-judge Bench explained the scope and jurisdiction of the High Court while deciding the second appeal under Section 100 of the Code. The High Court, in our opinion, should have kept in consideration the law laid down in this case while deciding the second appeal.

Reportable

Supreme Court of India

Chintaman Namdev Patil (Dead) vs Sukhdev Namdev Patil & Anr on 28 September, 2015

Bench: J. Chelameswar, Abhay Manohar Sapre

Citation:(2016)1 SCC681

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Whether appeal U/S 100 of CPC is available if application for setting aside abatement of appeal is rejected?

 Under provisions of Order XLIII Rule 1(k) of the Code, an appeal
is maintainable  against  an   order  refusing  to set  aside   the  abatement  or
dismissal of a suit.  In Madan Naik (supra) a somewhat identical situation
was   considered   by   the   Honourable   Supreme   Court   and   in   paragraph   8
thereof it was held as under :  
“ 8. …. Abatement of an appeal does not imply adjudication on merits and
hence a specific provision had to be made in Order 22, Rule 9(1) that no
fresh suit could be brought on the same cause of action.  Therefore when
the appeal abated there was no decree, disposing the first appeal, only
course open is to move the Court for setting aside abatement.   An order

under   Order   22,   Rule   9(2)  C.P.C.   refusing   to   set  aside   abatement,   is
specifically appealable under Order 43, Rule 1(k).  Such an adjudication if
it can be so styled would not be a decree as defined in Section 2(2) C.P.C.
Section 100 provides for second appeal to the High Court from every decree
passed  in appeal by any Court subordinate  to  the High  Court  on the
grounds therein set out.  What is worthy of notice is that second appeal lies
against  a decree passed in appeal.   An order under Order 22 Rule 9
appealable as an order would not be a decree and therefore, no second
appeal would lie against that order.  Such an appeal is liable to be rejected
as incompetent.”  
In view of aforesaid, it is clear that once such application filed
under provisions of Order XXII Rule 9 of the Code is rejected, the remedy of
an appeal under provisions of Order XLIII Rule 1(k) of the Code would  be
available.  
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO.184 OF 2014
 Mahadeo s/o Champatrao Karluke
     
­vs­
State of Maharashtra
    
CORAM  : A.S.CHANDURKAR, J. 
  DATE   :  April 25, 2016 
Citation: 2016(3) ALLMR 825

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When first appellate court is last court of facts?

 ‘Perversity’ has been the subject matter of umpteen
number of decisions of this Court. It has also been settled by

several decisions of this Court that the first appellate court,
under Section 96 of The Civil Procedure Code, 1908, is the last
court of facts unless the findings are based on evidence or are
perverse.
10. In Krishnan v. Backiam and another 
(2007) 12 SCC 190
, it has been held
at paragraph-11 that:
“11.It may be mentioned that the first appellate
court under Section 96 CPC is the last court of
facts. The High Court in second appeal under
Section 100 CPC cannot interfere with the
findings of fact recorded by the first appellate
court under Section 96 CPC. No doubt the
findings of fact of the first appellate court can be
challenged in second appeal on the ground that
the said findings are based on no evidence or are
perverse, but even in that case a question of law
has to be formulated and framed by the High
Court to that effect. …”
11. In Gurvachan Kaur and others v. Salikram (Dead)
Through Lrs.(2010) 15 SCC 530, at paragraph-10, 
this principle has been
reiterated:
“10.It is settled law that in exercise of power
under Section 100 of the Code of Civil Procedure,
the High Court cannot interfere with the finding of
fact recorded by the first appellate court which is
the final court of fact, unless the same is found to
be perverse. 
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 231 OF 2015
DAMODAR LAL ... APPELLANT (S)
VERSUS
SOHAN DEVI AND OTHERS ... RESPONDENT (S)
Dated;January 5, 2016
KURIAN, J.:
Citation;(2016) 3 SCC 78

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When appellate court should not interfere with finding of trial court?

 The Appellate Court may not interfere with the finding of the trial court unless the finding recorded by the trial court is erroneous or the trial court ignored the evidence on record. The High Court reversed the decree passed by the trial court without discussing oral and documentary evidence and several grounds raised before the trial court. The High Court veered away from the main issue and went on to elaborate on the law of arbitration and the mode of setting aside the arbitral award under Section 34 of the Arbitration Act, which in our view, was not warranted. Without considering the oral and documentary evidence, the High Court erred in interfering with the factual findings recorded by the trial court and the impugned judgment is liable to be set aside.

Supreme Court of India

Venkatesh Constrn.Co vs Karnataka Vidyut Karkhane ... on 20 January, 2016

Bench: T.S. Thakur, A.K. Sikri, R. Banumathi

REPORTABLE

 CIVIL APPEAL NOS.       461-462  OF  2016
 (Arising out of SLP (C) Nos.29680-29681 of 2010)

Citation;(2016)4 SCC119

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Whether appeal U/S 100 of cpc can be admitted even though there is no substantial question of law?

Supreme Court observed that appeal under Section 100 Code of Civil Procedure is required to be admitted only on substantial question/questions of law. It cannot be formal admission like an appeal Under Section 96 Code of Civil Procedure. That is the fundamental imperative. It is peremptory in character, and that makes the principle absolutely cardinal.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3190 OF 2016
(Arising out of S.L.P. (Civil) No. 6662 of 2016)
Raghavendra Swamy Mutt …Appellant
Versus
Uttaradi Mutt ...Respondent
Dated;March 30, 2016.
Dipak Misra, J.

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