Additional Evidence in First Appeal: Original Documents, Subsequent Events, and the Limits of Remand

Q :-  Documents were not produced before trial court as those documents were not traceable and were not exhibited as xerox copies were filed. whether any party can produce original documents before appellate court? whether appellate court can allow production of original documents at appellate stage only on the ground that those documents were not traceable at the time of proceeding before trial court?

Ans:- First appeals often raise a recurring procedural problem: can a party produce documents for the first time in appeal, especially when the originals were not filed before the trial court? The answer is yes, but only in limited circumstances, because additional evidence in appeal is an exception and not a matter of right.

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Ex Parte at Trial, New Defence in Appeal? The Real Limits of the First Appellate Court Under the CPC

A first appeal under Section 96 CPC is not a mere formality. It is a rehearing on facts and law, and the first appellate court has a duty to independently test the correctness of the decree on the basis of the pleadings, issues, and evidence already on record. But that wide appellate jurisdiction does not mean that a defendant who remained ex parte before the trial court can use the appeal as a fresh opportunity to construct an altogether new defence.

The governing principle is simple: appeal is a continuation of the suit, not a reconstruction of it. The Supreme Court has repeatedly held that in a first appeal the entire case is open for rehearing on facts and law, and the appellate court may reverse or affirm the trial court after reappreciating the evidence. At the same time, the appellate court remains confined to adjudicating the controversy as framed by the pleadings of the parties and proved through the trial record.

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Ex Parte at Trial, Active in Appeal: Can the Defendant File Fresh Documents in First Appeal?

Q :- Suit is proceeded exparte against defendant before trial court. trial court has dismissed the suit of plaintiff. plaintiff has filed appeal against dismissal of his suit. in that appeal, notice is issued to defendant. he appears before appellate court and produce copies of documents in support of his case. whether appellate court can consider those documents while deciding that appeal. what role defendant can play in the appeal?

Ans:-A defendant who was proceeded ex parte before the trial court does not get an unrestricted right to introduce fresh documents when he appears as respondent in the plaintiff’s first appeal. The appellate court normally decides the appeal on the trial court record, and any fresh documents can be considered only if they are admitted as additional evidence under Section 107 CPC read with Order XLI Rule 27 CPC.

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What approach the court should adopt while dealing with delay condonation application filed by Government department?

Thus, the Supreme Court has, in clear terms, held that existence of sufficient cause for not filing the appeal in time is a condition precedent for exercising discretionary power to condone the delay. The Court further clarified that the phrases 'liberal approach', justice-oriented approach' and cause for the advancement of 'substantial justice' cannot be employed to defeat the law of limitation so as to allow stale matters or as a matter of fact dead matters to be revived and re-opened by taking aid of Section 5 of the Limitation Act.

17. The Supreme Court, while highlighting the aspect of protecting the interest of institution, has also observed that the law of limitation will have to be implemented, though would harshly affect the party. Thus, at the end of the day, the delay will have to be condoned only upon showing sufficient cause. At the same time, the institutional interest of the State will have to be considered but then the default of individuals cannot be ignored as well.

18. The default will have to be dealt with in terms of Section 10 of the Maharashtra Government Servants Regulation of Transfers and Prevention of Delay in Discharge of Official Duties Act, 2005 (for short "the Act of 2005"), which reads thus :

"10. (1) Every Government servant shall be bound to discharge his official duties and the official work assigned or pertaining to him most diligently and as expeditiously as feasible :

Provided that, normally no file shall remain pending with any Government servant in the Department or Office for more than seven working days :

Provided further that, immediate and urgent files shall be disposed of as per the urgency of the matter, as expeditiously as possible, and preferably the immediate file in one day or next day morning and the urgent file in four days :

Provided also that, in respect of the files not required to be referred to any other Department, the concerned Department shall take the decision and necessary action in the matter within forty-five days and in respect of files required to be referred to any other Department, decision and necessary action shall be taken within three months.

(2) Any wilful or intentional delay or negligence in the discharge of official duties or in carrying out the official work assigned or pertaining to such Government servant shall amount to dereliction of official duties and shall make such Government servant liable for appropriate 1.[disciplinary action under the All India Services (Discipline and Appeal) Rules, 1969, the] Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 or any other relevant disciplinary rules applicable to such employee.

(3) The concerned competent authority on noticing or being brought to its notice any such dereliction of duties on the part of any Government servant, after satisfying itself about such dereliction on the part of such Government servant shall, take appropriate disciplinary action against such defaulting Government servant under the relevant disciplinary rules including taking entry relating to such dereliction of duty in the Annual Confidential Report of such Government servant."

19. As could be seen, sub-section (1) of Section 10 of the Act of 2005 provides that every Government servant shall discharge his official duties assigned or pertaining to him most diligently and expeditiously and that no file shall remain pending with any Government servant in the department, usually for more than seven working days. Thus, additional time taken will have to be properly justified. In addition, Rules 10 to 13 of the Maharashtra Prevention of Delay in Discharge of Official Duties Rules, 2013 (for short "the Rules of 2013) provides for detailed mechanism to prevent/avoid delay. Despite such a provision and several judgments of the Supreme Court deprecating casual approach in processing files, there is no improvement.

20. There is a reason for the same and the reason is not taking action, provided under sub-sections (2) and (3) of Section 10. It is unfortunate that the effect of sub-section (1) of Section 10 has been neutralized by not taking recourse to sub-sections (2) and (3) of Section 10. In that sense, all the officials have collectively failed to protect institutional interest of the State. Resultantly, the casual approach of Government servants continue and on top of it, the judgments of the Supreme Court are cited to argue as if the Government Servants have license to sit over the files and to expect the Courts to take liberal view.

21. As stated earlier, to expect from the Court a liberal approach, the officers, like the applicants, are/were duty bound to show that despite due diligence and bona fide efforts, the appeal could not be filed within stipulated time because of certain administrative exigencies, which were beyond their control. The Government Officials are under a special obligation to ensure that they perform their duties with due diligence and commitment.

22. The application as also the affidavit filed by the applicants before the First Appellate Court is completely silent as to what prevented the applicants to adhere to rigor of Section 10 of the Act of 2005. In fact, the reasons assigned to condone the delay does not show any cause, much less sufficient cause, to condone the delay. This is not a case where certain leeway could be provided to the applicants. The judgment of Sheo Raj Singh (supra) is, therefore, of no help to the applicants.

 IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 305 of 2009

Decided On: 25.04.2024

The State of Maharashtra and Ors. Vs. Omprakash

Hon'ble Judges/Coram:

Anil L. Pansare, J.

Citation: 2024:BHC-NAG:4790, 2024:BHC-NAG:4722,

MANU/MH/2714/2024, 2024(4) MhLJ 428(Bom).

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Whether Court Can Condone the Delay in Re-filing the Application to Set Aside A Domestic Award Beyond 3 months and 30 days?

 The cases of delay in re-filing are different from cases of delay in filing inasmuch as, in such cases the party has already evinced its intention to take recourse to the remedies available in courts and has also taken steps in this regard. It cannot be, thus, assumed that the party has given up his rights to avail legal remedies. However, in certain cases where the petitions or applications filed by a party are so hopelessly inadequate and insufficient or contain defects which are fundamental to the institution of the proceedings, then in such cases the filing done by the party would be considered non est and of no consequence. In such cases, the party cannot be given the benefit of the initial filing and the date on which the defects are cured, would have to be considered as the date of the initial filing. A similar view in the context of Rules 1 & 2 of Chapter IV of the Delhi High Court (Original Side) Rules, 1967 was expressed in Ashok Kumar Parmar v. D.C. Sankhla: MANU/DE/0672/1994 : 1995 RLR 85, whereby a Single Judge of this Court held as under:-

Looking to the language of the Rules framed by Delhi High Court, it appears that the emphasis is on the nature of defects found in the plaint. If the defects are of such character as would render a plaint, a non-plaint in the eye of law, then the date of presentation would be the date of re-filing after removal of defects. If the defects are formal or ancillary in nature not effecting the validity of the plaint, the date of presentation would be the date of original presentation for the purpose of calculating the limitation for filing the suit. {Para 16}

 IN THE HIGH COURT OF DELHI

FAO (OS) 485-86/2011

Decided On: 07.11.2013

 Delhi Development Authority  Vs. Durga Construction Co.

Hon'ble Judges/Coram:

Badar Durrez Ahmed and Vibhu Bakhru, JJ.

Author: Vibhu Bakhru, J.

Citation: MANU/DE/4933/2013

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Important Provisions of CPC(Part 2 ) (S 96 to S 153-B of CPC)

 96. Appeal from original decree.—(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court.

(2) An appeal may lie from an original decree passed ex parte.

(3) No appeal shall lie from a decree passed by the Court with the consent of parties.

200[(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed [ten]201 thousand rupees.]

97. Appeal from final decree where no appeal from preliminary decree.—Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.

98. Decision where appeal heard by two or more Judges.

99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction.—No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder 204[or non-joinder] of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court:

205[Provided that nothing in this section shall apply to non-joinder of a necessary party.]

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What is the duty of the first appellate court while appreciating the evidence in the first appeal?

 Section 96:

21.The first appellate court while exercising power under Section 96 can re-do the exercise of the trial court. However, such a power is expected to be exercised with caution. The reason being, the trial court alone has the pleasure of seeing the demeanor of the witness. Therefore, it has got its own advantage in assessing the statement of the witnesses which may not be available to the appellate court. In exercising such a power, the appellate court has to keep in mind the views of the trial court. If it finds that the trial court is wrong, its decision should be on the reasoning given. A mere substitution of views, without discussing the findings of the trial court, by the appellate court is not permissible. If two views are possible, it would only be appropriate to go with the view expressed by the trial court. While adopting reasoning in support of its findings, the appellate court is not expected to go on moral grounds alone.

36. Three requisites should normally be present before an appellate court reverses a finding of the trial court:

(i) it applies its mind to reasons given by the trial court;

(ii) it has no advantage of seeing and hearing the witnesses;

and

(iii) it records cogent and convincing reasons for disagreeing

with the trial court.

37. If the above principles are kept in mind, in our judgment, the

decision of the High Court falls short of the grounds which would

allow the first appellate court to reverse a finding of fact recorded

by the trial court. As already adverted earlier, the High Court has

'virtually' reached a conclusion without recording reasons in

support of such conclusion. When the court of original jurisdiction has considered oral evidence and recorded findings after seeing the demeanour of witnesses and having applied its mind, the appellate court is enjoined to keep that fact in mind. It has to deal with the reasons recorded and conclusions arrived at by the trial court. Thereafter, it is certainly open to the appellate court to come to its own conclusion if it finds that the reasons which weighed with the trial court or conclusions arrived at were not in consonance with law.”

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.1376-1377 OF 2010

V. PRABHAKARA  Vs BASAVARAJ K. (DEAD) BY LR. & ANR. 

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Supreme Court: Court Hearing First Appeal In Criminal Matter is Required To Form Its Own Opinion

We would like to say that the First Appeal in

criminal matter requires the court to form his opinion on

the basis of the evidence on record and the opinion of

the Trial Court. A perusal of the impugned order shows

that the facts have been set out followed by what each

witness has deposed. Thereafter, all that is stated is

as under:

“In view of the above, we find that the

prosecution has been successful in proving guilt of

the accused-appellant, by adducing cogent and

reliable evidence, beyond all reasonable doubt.

Hence, from the circumstances brought on record

by the prosecution, the guilt of the accusedappellant

with regard to the commission of crime inquestion

stands duly established.”

The aforesaid is followed by dismissal of the appeal.

We are of the view that this can hardly meet the

requirements of law for considering the First Appeal in

criminal matters and thus, have no option but to set

aside the impugned order and remit the matter back for

consideration by the High Court on merits as a First

Appeal in a Section 302 case of the I.P.C. in accordance

with law.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.688 OF 2020

CHANDRABHAN SINGH VS. THE STATE OF RAJASTHAN 

Dated: October 16, 2020.

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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 it is mandatory for appellate court to comply O 41 R 31 of CPC while deciding first appeal?

 It is clear from the above provisions and the decisions of this 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 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.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1485 OF 2020

MALLURU MALLAPPA Vs KURUVATHAPPA 

S. ABDUL NAZEER, J.

Dated:February 12, 2020.

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What is duty of first appellate court while deciding first appeal?

The Hon'ble Apex Court in Santosh Hazari Vs. Purushottam Tiwari (Deceased) by L.Rs. [MANU/SC/0091/2001 : (2001) 3 SCC 179] has observed thus:-

".......... While writing a judgment of reversal the appellate court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact (See Madhusudan Das v. Narayanibai [MANU/SC/0147/1982 : AIR 1983 SC 114]. The rule is--and it is nothing more than a rule of practice----than when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature abut the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his pinion as to where the credibility lie, the appellate court should not interfere with the finding of the trial Judge on a question of fact (See Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh [MANU/SC/0002/1950 : AIR 1951 SC 120]). Secondly, 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. We need only remind the first appellate courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code......"

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 0794 of 2017

Decided On: 04.06.2019

Bhaurao Vs.  Ravsaheb and Ors.

Hon'ble Judges/Coram:

Vibha Kankanwadi, J.

Citation: 2020(1) MHLJ 348

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Difference between scope of first appeal and application for setting aside exparte decree

We have, however, no doubt in our mind that when an application under Order 9, Rule 13 of the Code is dismissed, the defendant can only avail a remedy available there against, viz, to prefer an appeal in terms of Order 43, Rule 1 of the Code. Once such an appeal is dismissed, the Appellant cannot raise the same contention in the First Appeal. If it be held that such a contention can be raised both in the First Appeal as also in the proceedings arising from an application under Order 9, Rule 13, it may lead to conflict of decisions which is not contemplated in law.

37. The dichotomy, in our opinion, can be resolved by holding that whereas the defendant would not be permitted to raise a contention as regards the correctness or otherwise of the order posting the suit for ex-parte hearing by the Trial Court and/ or existence of a sufficient case for non-appearance of the defendant before it, it would be open to him to argue in the First Appeal filed by him against Section 96(2) of the Code on the merit of the suit so as to enable him to contend that the materials brought on record by the plaintiffs were not sufficient for passing a decree in his favour or the suit was otherwise not maintainable. Lack of jurisdiction of the court can also be a possible plea in such an appeal.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 8246 of 2004 

Decided On: 17.12.2004

Bhanu Kumar Jain  Vs. Archana Kumar and Ors.

Hon'ble Judges/Coram:

N. Santosh Hegde, B.P. Singh and S.B. Sinha, JJ.

S.B. Sinha, J.

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Supreme Court: Party can not be denied right to file first appeal after dismissal of application for setting aside exparte decree

 An appeal Under Section 96(2) Code of Civil Procedure is a statutory right, the Defendant cannot be deprived of the statutory right merely on the ground that earlier, the application filed Under Order IX Rule 13 Code of Civil Procedure was dismissed. Whether the Defendant has adopted dilatory tactics or where there is a lack of bona fide in pursuing the remedy of appeal Under Section 96(2) of the Code, has to be considered depending upon the facts and circumstances of each case. In case the court is satisfied that the Defendant has adopted dilatory tactics or where there is lack of bona fide, the court may decline to condone the delay in filing the first appeal Under Section 96(2) Code of Civil Procedure. But where the Defendant has been pursuing the remedy bona fide Under Order IX Rule 13 Code of Civil Procedure, if the court refuses to condone the delay in the time spent in pursuing the remedy Under Order IX Rule 13 Code of Civil Procedure, the Defendant would be deprived of the statutory right of appeal. Whether the Defendant has adopted dilatory tactics or where there is lack of bona fide in pursuing the remedy of appeal Under Section 96(2) of the code after the dismissal of the application Under Order IX Rule 13 Code of Civil Procedure, is a question of fact and the same has to be considered depending upon the facts and circumstances of each case.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 8898 of 2019

Decided On: 21.11.2019

 N. Mohan  Vs.  R. Madhu

Hon'ble Judges/Coram:

R. Banumathi, A.S. Bopanna and Hrishikesh Roy, JJ.

Citation: AIR 2020 SC 41

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Principles regarding mode of disposal of first appeal

 In this context, we may usefully refer to Order 41 Rule 31 Code of Civil Procedure which reads as follows:

ORDER 41

APPEALS FROM ORIGINAL DECREES

***

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;

(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 that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.

13. On a perusal of the said Rule, it is quite clear that the judgment of the appellate court has to state the reasons for the decision. It is necessary to make it clear that the approach of the first appellate court while affirming the judgment of the trial court and reversing the same is founded on different parameters as per the judgments of this Court. In Girijanandini Devi MANU/SC/0287/1966 : AIR 1967 SC 1124, the Court ruled that while agreeing with the view of the trial court on the evidence, it is not necessary to restate the effect of the evidence or reiterate the reasons given by the trial court. Expression of general agreement with reasons given in the trial court judgment which is under appeal should ordinarily suffice. The same has been accepted by another three-Judge Bench in Santosh Hazari MANU/SC/0091/2001 : (2001) 3 SCC 179. However, while stating the law, the Court has opined that expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage to be adopted by the appellate court for shirking the duty cast on it. We are disposed to think, the expression of the said opinion has to be understood in proper perspective. By no stretch of imagination it can be stated that the first appellate court can quote passages from the trial court judgment and thereafter pen few lines and express the view that there is no reason to differ with the trial court judgment. That is not the statement of law expressed by the Court. The statement of law made in Santosh Hazari has to be borne in mind.

14. In this regard, a three-Judge Bench decision in Asha Devi v. Dukhi Sao MANU/SC/0019/1974 : (1974) 2 SCC 492 is worthy of noticing, although the context was different. In the said case, the question arose with regard to power of the Division Bench hearing a letters patent appeal from the judgment of the Single Judge in a first appeal. The Court held that the letters patent appeal lies both on questions of fact and law. The purpose of referring to the said decision is only to show that when the letters patent appeal did lie, it was not restricted to the questions of law. The Appellant could raise issues pertaining to facts and appreciation of evidence. This is indicative of the fact that the first appellate court has a defined role and its judgment should show application of mind and reflect the reasons on the basis of which it agrees with the trial court. There has to be an "expression of opinion" in the proper sense of the said phrase. It cannot be said that mere concurrence meets the requirement of law. Needless to say, it is one thing to state that the appeal is without any substance and it is another thing to elucidate, analyse and arrive at the conclusion that the appeal is devoid of merit.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7418 of 2009

Decided On: 01.07.2019

R.S. Anjayya Gupta Vs.   Thippaiah Setty and Ors.

Hon'ble Judges/Coram:

A.M. Khanwilkar and Ajay Rastogi, JJ.

Citation:( 2019)7 SCC 300

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Whether time spent in proceeding with application U 9 R 13 of CPC can be condoned in filing of first appeal?

As pointed out earlier, an appeal under Section 96 CPC is a
statutory right. Generally, delays in preferring appeals are
required to be condoned, in the interest of justice, where there is
no gross negligence or deliberate inaction or lack of bonafide is
imputable to the party seeking condonation of delay.
17. In the case in hand, respondents No.1 to 13 filed a suit for
partition in the year 2007, which was decreed ex-parte on

04.07.2008. Appellant and respondents No.14 and 15 filed
application under Order IX Rule 13 CPC and the same came to
be dismissed on 06.08.2010. Being aggrieved by dismissal of
application under Order IX Rule 13 CPC, the appellant and
respondents No.14 and 15 preferred an appeal under Order XLIII
Rule 1(d) CPC on 03.09.2010. Of course, the said appeal was
pending for about three years and the same was withdrawn on
11.06.2013. Thereafter, on the next day i.e. on 12.06.2013, the
appellant and respondents No.14 and 15 filed an appeal
challenging the ex-parte decree and judgment dated 04.07.2008
passed in Regular Civil Suit No.35 of 2007. It cannot be said that
the appellant and respondents No.14 and 15 were grossly
negligent in pursuing the matter more so, when the decree was
passed in the suit for partition.
18. It is pertinent to note that as per Section 97 CPC where any
party aggrieved by a preliminary decree does not appeal from
such decree, he shall be precluded from disputing its correctness
in any appeal which may be preferred from the final decree. The
object is that the questions decided by the court at the stage of
passing preliminary decree cannot be challenged at the time of
final decree. If no appeal had been preferred against the

preliminary decree, the suit filed by the respondents-plaintiffs
being a suit for partition, the appellant would be deprived of the
opportunity in challenging the decree on merits. In the interest of
justice, the appellant and respondents No.14 and 15 are to be
given an opportunity to challenge the ex-parte decree dated
04.07.2008 on merits, notwithstanding the dismissal of their
application filed under Order IX Rule 13 CPC.
19. In the facts and circumstances of the present case, the time
spent in pursuing the application under Order IX Rule 13 CPC is
to be taken as “sufficient cause” for condoning the delay in filing
the first appeal. The impugned judgment of the High Court
cannot be sustained and is liable to be set aside.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4669 OF 2019

BHIVCHANDRA SHANKAR MORE Vs  BALU GANGARAM MORE 

R. BANUMATHI, J.
Dated:May 07, 2019.

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Whether high court can decide issue of limitation in first appeal without going into merits of case?

The second question that requires consideration is
whether the High Court was right in merely deciding the issue
of limitation in a first appeal filed under Section 96 of the Code
of Civil Procedure without going into the merits of the case.
Quite recently, in Vinod Kumar v. Gangadhar(2015) 1 SCC 391
this Court had
occasion to consider the issue whether, under Section 96 of the
Code of Civil Procedure, the first appellate court ought to decide
all the issues before it or not. Reference was made to a very
large number of decisions rendered by this Court and it was
concluded, particularly relying upon Madhukar v. Sangram (2001) 4 SCC 756
decided by a Bench of three learned judges of this Court that
sitting as a court of first appeal it is the duty of the High Court
to deal with all the issues and evidence led by the parties before
recording its findings.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6687 OF 2016
Madina Begum & Anr. 
 versus
Shiv Murti Prasad Pandey & Ors
Citation: 2016 SCCONLINESC751

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Whether rejection of delay condonation application for filing first appeal amounts to dismissal of first appeal?

This Court in the case of Chandrakant Govind Sutar
.vs. M. K. Associates and another reported in 2003 (1) Mh.L.J.
1011 considered the duty of the Counsel towards his client as well
as duty towards the Court with reference to the Advocates Act as
well as the Civil Procedure Code. Regarding the order passed
below the application for condonation of delay, when such order is
passed at the stage of first appeal, it was specifically observed by
this Court that when application for condonation of delay is
allowed by the subordinate Court, in those cases revision under
Section 115 of the Code of Civil Procedure would be available. In
other words, when an order is passed dismissing the application
for condonation of delay in preferring the First Appeal, the
revision application against such order was held not tenable as the
consequence of dismissing the application for condonation of
delay in filing the appeal results in disposing the appeal as time
barred. Therefore, remedy by way of Second Appeal is available
in such cases.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, AT NAGPUR
SECOND APPEAL NO.128 OF 2013

 Smt.Shewantabai Kashinath Kumbhare Vs Purushottam s/o. Mahadeorao Ambatkar,

CORAM: A.P.BHANGALE, J.
DATED : 3rd February, 2014.
Citation;2015(7) ALLMR425

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What are duties of first appellate court while deciding first appeal?

Before parting with the judgment, I think it necessary to
place on record what are seen to be the established obligations of the
first appellate Court while deciding the first appeal. If the first

appellate Court agrees with the view of the trial Court, there is no
need for it to restate the effect of the evidence or reiterate the
reasons given by the trial Court and an expression of general
agreement with reasons given by the Court should suffice the
purpose as held in the case of Girijanandini Devi and others vs.
Bijendra Narain Choudhary, reported in AIR 1967 SC 1124.
However, when the findings of facts recorded by the trial Court are
to be reversed by the first appellate Court, the first appellate Court
must come into close quarters with the reasoning assigned by the
trial Court and then assigning its own reasons, it may record
different findings of fact. It must be remembered that first appeal is
a valuable right of the parties and unless restricted by law, the whole
case in the appeal is open for rehearing on questions of facts as well
as questions of law. The judgment of the first appellate Court must,
therefore, reflect its application of mind to the evidence available on
record and must show the reasons for recording the findings which
should be recorded on all the issues involved in the appeal and on
which adjudication is sought by the parties. A useful reference may
be made to the law laid down by the Hon’ble Apex Court in this
regard, in the case of Santosh Hazari vs. Purushottam Tiwari

(Dead) by Lrs., reported in AIR 2001 SC 965. These are the duties
of the appellate Court which must be discharged by it while deciding
first appeal.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL No.113 OF 1995
 Bhaskar s/o. Narayan Khandare.

...VERSUS...
 Ramesh s/o. Bhimrao Ghogre.

CORAM : S.B. SHUKRE, J.

 DATE : 24thFEBRUARY, 2014.
Citation; 2015(7) ALLMR375

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