Bombay HC (DB): Judgment passed in Moinoddin s/o.Khodboddin vs.State of Maharashtra is not good law

 In our view, the said proviso carves out

an exception to the general rule which is

provided under Section 353(5) and (6) of the

Code. We, therefore, disagree with the view

expressed by the learned single judge Shri.

N.V. Dabholkar, J. recorded in the case of

Moinoddin s/o.Khodboddin vs. State of

Maharashtra(supra). The said issue is answered

accordingly. {Para 8}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION NO.1455 OF 2008

Kanji R. Barot V The State of Maharashtra & Ors.

CORAM : V.M. KANADE & P.D. KODE JJ.

JUNE 12, 2014.

Citation: 2008 BCR CRI 2 881, 2008 BOMCR CRI 2 881

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Bombay HC: Sessions Judge shall pronounce Judgment in appeal against conviction in presence of the accused except as provided under S 353(6) of CRPC

Thus, taking note of all these pronouncements would make it clear that in fact, there is a duty on the Appellate Court i.e. Sessions Judge (including Additional Sessions Judge) to see that the Judgment in appeal against conviction should be pronounced in presence of the accused (only exception as enumerated in Section 353(6) of the Code) and to take such appellant in custody upon the confirmation of the conviction. The practice of pronouncing Judgments in appeal against conviction in absence of the accused, thereby dismissing the appeal and then directing the trial Court to issue warrant, requires to be deprecated. This is the practice adopted in the present case also and therefore, the point has been considered in detail.

 IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Criminal Application No. 2743 of 2019 in Criminal Revision Application No. 323 of 2019

Decided On: 12.06.2020

Fazal Khalil Ahemad Shaikh Vs. Nandkishor Ramnivasji Agrawal and Ors.

Hon'ble Judges/Coram:

Vibha Kankanwadi, J.

Citation: 2020 PLR IJ 198 40, 2020 SCC ONLINE BOM 706 ,2021 BC 3 52, 2020 AIR BOM R CRI 2 636, MANU/MH/0637/2020

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Bombay HC: First appellate Court after confirming the conviction, has no power to suspend the sentence, even if appellant may express his desire to prefer revision against the said conviction

 On reference to operative order of learned Sessions Judge, it is evident that while delivering the judgment on February 3, 2003, learned Sessions Judge ordered the petitioner to surrender his bail bond before the Trial Court- COM Nanded, on February 10, 2003 to undergo remaining part of the sentence. {Para 12}

13. In this context, a reference may be made to a judgment of this High Court (Coram R.M. LODHA, J.) in Dilip v. State of Maharashtra MANU/MH/0110/1995 : 1996(2)MhLj1004 , and more particularly contents in Paras. 5 and 7 of the judgment. It is evident that lower appellate Court after confirming the conviction, has no power to suspend the sentence, even if appellant may express his desire to prefer revision against the said conviction. The order directing the appellant accused to surrender after a week, in effect, resulted into suspension of sentence, by granting him some time to surrender.

14. Reading proviso to Section 387 of the Criminal Procedure Code, it may be argued that, it is not mandatory upon the appellate Court to direct the accused to be brought up or required to attend, to hear the judgment delivered because of the words "shall not" incorporated in the proviso. However, this proviso is required to be read in the light of Section 387 read with Sections 353(5) and 353(6). Provisions regarding the judgment, as contained in Chapter XXVII of the Criminal Procedure Code are applicable to the judgment of subordinate appellate Court and in Section 387 also the words used are "shall apply". The proviso to Section 387, therefore, shall stand controlled by the provisions contained in Sections 353(5) and 353(6) and, therefore, the subordinate appellate Court will be obliged to secure the presence of accused/appellant before it for pronouncement of judgment except in the cases wherein the judgment is of acquittal or one of fine only. Once the presence of appellant-accused is secured or the purpose of pronouncement of judgment confirming the conviction with substantive sentence, as: observed in the matter of Dilip v. State of Maharashtra (supra), the Subordinate Appellate Court would become functus officio and cannot suspend the sentence or grant bail in order to enable the accused to prefer revision before the High Court. The only course available, therefore, would be to execute the order of conviction confirmed by it, leaving the accused to obtain suspension of sentence and bail from the High Court by preferring appropriate revision.

15. On reference to criminal manual of instructions issued by the High Court of Judicature, Appellate Side, Bombay, for the guidance of criminal Courts and officers subordinate to it, the same contains Form XV regarding "warrant to jailor, in the case of a prisoner at first released on bail pending the f disposal of appeal to the Appellate Court, but subsequently rearrested in Court on the dismissal of the appeal or reduction or alteration of sentence, and forwarded to jail to undergo the remaining portion of the sentence". The contents of the warrant clearly indicate that the warrant is to be issued by the Court confirming the conviction and accused appellant cannot be directed to surrender to the trial Court for issuance of conviction warrant.

 IN THE HIGH COURT OF BOMBAY

Cr. R.A. No. 57/2003

Decided On: 14.02.2003

Moinoddin Vs. State of Maharashtra

Hon'ble Judges/Coram:

N.V. Dabholkar, J.

Citation: 2003 LLJ BOM 2 1040, 2003 BLR 2 296, 2003 SCC ONLINE BOM 170, 2003 LLN 2 479, 2003 FLR 98 634,MANU/MH/0394/2003.

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Amendment of Memorandum of Appeal in First Appeal: When It May Be Allowed, and Why It Does Not Amend the Trial Court Pleadings

 A first appellate court may permit amendment of the memorandum of appeal, or grant leave to urge an additional ground, where the amendment is necessary for effective adjudication of the real controversy and does not introduce a wholly new case causing irremediable prejudice to the respondent. However, such permission does not by itself amend the plaint, written statement, claim petition, or any other pleading before the trial court; the amendment must ordinarily be carried out in the appellate record itself.

Introduction

In appellate practice, applications are often made for amendment of the memorandum of appeal after filing, and sometimes even at an advanced stage of hearing. The real difficulty for courts is not whether such power exists, but how far that power extends and what exactly changes when the amendment is allowed.

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Can a Court Allow a Time-Barred Amendment of Pleadings? Scope of Trial Court and First Appellate Court Powers Under Order VI Rule 17 CPC

Order VI Rule 17 CPC confers a wide discretionary power on civil courts to permit amendment of pleadings at any stage if the amendment is necessary for determining the real question in controversy between the parties. But this power is not unstructured: the court must weigh necessity, prejudice, limitation, due diligence, and the effect of the proposed amendment on the nature of the case.

A frequent question is whether a court can permit an amendment when the plea or relief sought to be introduced appears to be barred by limitation. The correct answer is: yes, in some cases; no, in others. There is no absolute prohibition against allowing a time-barred amendment, but a court should ordinarily decline such amendment when it introduces a fresh cause of action or a fresh relief that had already become barred on the date of the amendment application, because that would deprive the opposite party of a valuable accrued defence.

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Silent Defendants, Noisy Records: How District Judges Should Handle Undefended Partition Appeals and Additional Evidence

 When a defendant appears but never files a written statement, and yet the trial court dismisses a partition suit with minimal reasoning, the real work shifts to the first appellate court. For District Judges, such appeals are a common—and delicate—test of how far one can go on the existing record, how to treat additional evidence under Order XLI Rule 27 CPC, and how strictly to enforce the “no new case in appeal” rule.

This article distils core principles from the CPC, the Evidence Act and leading Supreme Court decisions, using the typical pattern of a partition suit based on revenue records, an absent written statement, unrebutted plaintiff’s evidence, and an Order XLI Rule 27 application for certified 7/12 extracts or similar public documents.

“First appeals are not a mere formality; the District Court is the final court on facts.”

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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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Not a Formality: How a First Appellate Court Must Decide Facts, Law, and Mixed Issues under the CPC

 A first appeal under Section 96 of the Code of Civil Procedure, 1908, is a full rehearing on facts as well as law, and not a mere endorsement of the trial court’s judgment. The first appellate court is therefore expected to independently examine the record, frame proper points for determination, and render a reasoned judgment in conformity with Order XLI Rule 31 CPC.

The place of first appeal in civil justice

The right of first appeal is a valuable statutory right, and the whole case is ordinarily open for reconsideration on both facts and law. This is why the first appellate court is often described as the final court on facts, unlike the High Court in second appeal, which is generally confined to substantial questions of law under Section 100 CPC.

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Supreme Court: The Court can not recognize compromise if it is not reduced in to writing & not Signed By Parties

 During the pendency of appeal, on 22.08.1983

Mansha Ram and others executed a sale deed

in favour of Kartar Chand, Sansar Chand and

Rajinder Kumar- three sons of Bakshi Ram for

consideration of Rs. 12,500/-. The first

Appellate Court, by order dated 20.08.1984,

allowed the appeal, setting aside the decree of

Trial Court in light of statements made by

plaintiffs before the court. It noted that ‘the

plaintiffs have compromised the case and stated

that they do not want to pursue with the suit

and it to be dismissed.’ {Para 5}

22. Additionally, we must also note the case of

Som Dev v. Rati Ram (2006) 10 SCC 788. as presented by the

appellants to clarify the rigors of Order XXIII

Rule 3 of CPC. In this case, it was clarified by

this Court that after the amendment of Code of

Civil Procedure in 1977, a compromise decree

can be passed only on compliance with the

requirements of Rule 3 of Order XXIII, otherwise

it may not be possible to recognize the same as

compromise decree. When a compromise is to

be recorded and a decree is to be passed, Rule

3 of Order XXIII of the Code requires that the

terms of compromise should be reduced to

writing and signed by the parties.

23. In the present case, neither the

compromise deed has been reduced to writing,

nor it is recorded by the court. Mere statements

of the parties before court about such said

compromise, cannot satisfy the requirements of

Order XXIII Rule 3 of the CPC. Therefore, the

compromise decree is not valid.

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2024

(Arising out of SLP (C) No.14690 of 2015)

AMRO DEVI & ORS. Vs JULFI RAM.

Author: VIKRAM NATH, J.

Citation:  2024 INSC 527.

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Landmark Supreme Court Judgment on powers and duties of first appellate court while deciding first appeal

  The first appellate Court has, in a very cryptic manner, reversed the finding on question of possession and dispossession as alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. 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, 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 Court. The task of an appellate Court affirming the findings of the trial Court is an easier one. The appellate Court agreeing with the view of the trial Court need not restate the effect of the evidence or reiterate the reasons given by the trial Court; expression of general agreement with reasons given by the Court, decision of which is under appeal, would ordinarily suffice (See Girijanandini Devi & Ors. Vs. Bijendra Narain Choudhary MANU/SC/0287/1966 : [1967]1SCR93 : [1967]1SCR93 ). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate Court for shirking the duty cast on it. 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 (SeeMadhusudan Das Vs. Smt. Narayani Bai & Ors. MANU/SC/0147/1982 : [1983]1SCR851 : [1983]1SCR851 ). The rule is -- and it is nothing more than a rule of practice -- that 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 about 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 opinion as to where the credibility lies, the appellate Court should not interfere with the finding of the trial Judge on a question of fact.(See Sarju Pershad Ramdeo Sahu Vs. Jwaleshwari Pratap Narain Singh & Ors. MANU/SC/0002/1950 : [1950]1SCR781 : [1950]1SCR781 ). 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. The first appellate Court continues, as before, to be a final Court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate Court is also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate Court even on questions of law unless such question of law be a substantial one.

IN THE SUPREME COURT OF INDIA

C.A. No. 1117 of 2001

Decided On: 08.02.2001

Santosh Hazari vs. Purushottam Tiwai (Dead) by L.Rs.

Coram:

Dr. A.S. Anand, C.J., R.C. Lahoti and Brijesh Kumar, JJ.

Citation:(2001) 3 SCC 179.

Read full Judgment here: Click here.

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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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Guidelines for framing of point for determination by first appellate court

 At the time of submissions, learned Advocate Mr. S.S. Bora appearing for the appellants submitted that the first appellate court has not framed the points for determination as required under Order XLI Rule 31 of the Code of Civil Procedure, 1908. Whatever points are stated to have been framed in the judgment cannot be said to be the compliance of the law and, therefore, he prayed that the matter is required to be remanded for proper framing of points and deciding according to the issues in dispute. He relied on the decision in Khatunbi & others Vs. Aminabai 2006(6) Mh.L.J. 759, wherein it has been observed thus:

"5. Order 41, Rule 31 of the Code of Civil Procedure clearly provides that the judgment of the appellate Court shall be in writing and shall state the points for determination, the decision thereon, the reasons for the decision, and 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.

6. Plain reading of the said provision would disclose that the appellate Court before proceeding to deliver the judgment on merits of the case has to formulate the points for determination and with reference to such points for determination, analyse the materials on record and thereupon arrive at the conclusion to be delivered as its decision. Obviously the decision should disclose the reasons for the decision. However, the reasons for decision by themselves cannot constitute the points for determination. The points for determination have to be formulated in order to enable the Court to identify the exact points in controversy in the matter and with reference to those points, the Court has to appreciate the evidence led by the parties. In fact, the law on this aspect has been well settled by the decision of the learned Single Judge of this Court in Vishwas Balu v. Ghasiram Ramratan Jajum MANU/MH/0168/1975 : AIR 1975 Bom. 278 wherein it has been held that the compliance of Order 41, Rule 31 is mandatory and the expression used therein "shall state" clearly discloses that the failure to comply with the said provision of law would not be a mere irregularity. Indeed, the phraseology used in Rule 31 apparently discloses that compliance of the said provision is not a mere formality and therefore failure thereof cannot be said to be a mere irregularity. This is also clear from Rule 30 of Order 41 and in particular Sub-rule (2) thereof. Rule 30(2) of Order 41 provides that "where a written judgment is to be pronounced, it shall be sufficient if the points for determination, the decision thereon and the final order passed in the appeal are read out and it shall not be necessary for the Court to read out the whole judgment, but a copy of the whole judgment shall be made available for the perusal of the parties or their pleaders immediately after the judgment is pronounced," Obviously, in cases where on conclusion of the arguments in appeal, the judgment is reserved to be delivered and thereafter it is sought to be pronounced, it is not sufficient merely to declare as to whether the appeal is allowed or not, but ultimate decision has to be made known to the parties along with the points for determination which have been considered in the appeal. This provision of law clearly discloses the necessity for formulation of the point for determination before the appellate Court proceeds to deliver the judgment in the appeal.

7. The learned Single Judge of this Court in Smt. Anita M. Barretto v. Abdul Wahid Sanaullah MANU/MH/0711/1984 : 1984 Mh.L.J. 931 : AIR 1985 Bom. 98, while dealing with the necessity of compliance of provisions of Order 41, Rule 31, held that when a requirement such as this is insisted upon by the procedural law of the land, one must try to understand the object and scope of such provision. Merely asking the question as to whether the judgment of the Court below is correct, legal or valid is hopelessly an inadequate method of meeting the requirement of this legal provision. Further, while referring to the earlier decision in Mhasu v. Davalat (1905) 7 Bom. L.R. 174, it was also reminded that there was similar provision in the earlier Civil Procedure Code and it was pointed out that the object of the Legislature in making it incumbent on an appellate Court to raise points for determination is to clear up the pleadings and focus the attention of the Court and of the parties on the specific and rival contentions in the matter. It was further held that the points which must arise for determination by a Court of first appeal must cover all important questions involved in the case and they should not be general and vague. It was further held that it is a matter of almost textbook knowledge that the exact questions which arise in the appeal for determination must be stated in the judgment.

8. It is thus clear that right from the beginning of 20th century consistent view taken by this Court is that the provision regarding the requirement of formulation of points for determination by the appellate Court while proceeding to deliver the judgment in appeal has been held to be mandatory in nature and not a mere irregularity."

7. On behalf of the appellants, further reliance has been placed on the decision in Abdul Kadar s/o. Mohammad Ibrahim, Second Appeal No. 68 of 1991, decided by this Court on 14-10-2008. In this case also, reliance was placed on the above said decision of Khatunbi & others Vs. Aminabai and further reliance was placed on Smt. Anita M. Barretto Vs. Abdul Wahid Sanaullah (MANU/MH/0270/1985 : AIR 1985 Bom. 98). In both these above said cases, it was, therefore, held that when there is no proper framing of points in compliance of Order XLI Rule 31 of the Code of Civil Procedure, 1908, the matter deserves to be remanded.

9. At present, a limited question is arising as to whether the judgment of the first appellate court is in pursuance to the compliance of Order XLI Rule 31 of the Code of Civil Procedure. The Division Bench of this Court in Khatunbi & others (supra) had considered the pronouncement of the judgments of this Court as well as by Apex Court in Santosh Hazari Vs. Purushottam Tiwari deceased by L.Rs. (MANU/SC/0091/2001 : 2001(2) Mh.L.J. 786) and it was clearly observed that, compliance of Order XLI Rule 31 of the Code of Civil Procedure is not an empty formality. The necessity of formulation of points for determination by the appellate Court cannot be considered lightly and brushed aside as benefit of technical plea cannot be granted. In fact, formulation of points for determination has to be such that it should cover all important issues in dispute. Therefore, such formulation of points for determination cannot be vague.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 0282 of 2015

Decided On: 09.01.2019

Subabai Shivram Patil  Vs. Dharamsing Julalsing Patil 

Hon'ble Judges/Coram:

Vibha Kankanwadi, J.

Citation: 2019(3) MHLJ 400

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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 first appellate court can examine legality of finding recorded in favour of plaintiff in absence of cross objection of defendant?

Mere perusal of the judgment of the Trial Court would go to show that while answering the issues, the Trial Court had divided issue No. 4 in two parts. So far as first part is concerned, it was in relation to the question as to whether Defendant No. 1 was the Plaintiff's tenant or not. In other words, it was in relation to the question as to whether the Plaintiff was able to prove the relationship of landlord and tenant between him and Defendant No. 1 in relation to suit premises. Indeed, this was one of the main questions involved in the suit.

16. This question, i.e., first part of issue No. 4 was decided by the Trial Court in Plaintiff's favour wherein it was held that Defendant No. 1 was the Plaintiff's tenant. So far as second part of issue No. 4 is concerned, it was in relation to the question as to whether Defendant No. 1 was a defaulter in payment of rent to the Plaintiff. This question was answered by the Trial Court against the Plaintiff and in Defendant No. 1's favour wherein it was held that Defendant No. 1 did not commit any default in payment of rent to the Plaintiff. It is for this reason, the suit was dismissed.

17. The Plaintiff in his first appeal did not challenge the finding of the Trial Court recorded on the first part of issue No. 4 and rightly so because it was already answered by the Trial Court in his favour. The First Appellate Court, therefore, could not examine the legality and correctness of this finding in Plaintiff's appeal unless it was challenged by the Defendants by filing cross objection Under Order 41 Rule 22 of the Code in the appeal.

18. As mentioned above, the Defendants though suffered the adverse finding on first part of issue No. 4 but did not file any cross objection questioning its legality. In the light of these admitted facts arising in the case, the First Appellate Court had no jurisdiction to examine the legality and correctness of the finding on first part of issue No. 4 in Plaintiff's appeal and reverse it against the Plaintiff.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 9956 of 2018 

Decided On: 25.09.2018

Biswajit Sukul  Vs.  Deo Chand Sarda and Ors.

Hon'ble Judges/Coram:

Abhay Manohar Sapre and S. Abdul Nazeer, JJ.

Citation: 2019(4) MHLJ 34

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Whether appellate court can consider merits of appeal while deciding application for condonation of deay?

 Since the review petition is held not maintainable, there was no dispute that the Appellant had a right to file first appeal. As held in State of Jharkhand Vs. Ashok Kumar Chokhani, MANU/SC/0039/2009 : AIR 2009 SC 1927, in the application for condonation of delay, the first appellate court could not have gone into merits of the appeal and the delay condonation application could not have been rejected on the assumption that first appeal itself was not maintainable. At this stage, the Appellant had no opportunity to argue about the maintainability of the first appeal.

IN THE HIGH COURT OF BOMBAY

Second Appeal (St.) No. 7650 of 2018 in Civil Application No. 272 of 2018

Decided On: 03.10.2018

Pattherao Narsu Patil Vs. Gangubai A. Lad and Ors.

Hon'ble Judges/Coram:

A.M. Dhavale, J.

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What are proper test for determining whether a question of law raised in the case is substantial?

The phrase 'substantial question of law', as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying 'question of law', means - of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with - technical, of no substance or consequence, or academic merely. scope of 'substantial question of law' by suffixing the words 'of general importance' as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta & Anr. Vs. T. Ram Ditta,MANU/PR/0005/1934, the phrase 'substantial question of law' as it was employed in the last clause of the then existing Section 110 of the C.P.C. (since omitted by the Amendment Act, 1973) came up for consideration and Their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties. In Sir Chunilal V. Mehta & Sons Ltd. Vs. The Century Spinning and Manufacturing Co., Ltd.MANU/SC/0056/1962 : AIR1962SC1314 , the Constitution Bench expressed agreement with the following view taken by a Full Bench of Madras High Court in Rimmalapudi Subba Rao Vs. Noony Veeraju MANU/TN/0318/1951 : AIR1951Mad969 : AIR1951Mad969 :-

"...when a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative view, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest Court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law."

and laid down the following test as proper test, for determining whether a question of law raised in the case is substantial:-

"The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."

13. In Deputy Commr., Hardoi, in charge Court of Wards, Bharawan Estate Vs. Rama Krishna Narain & Ors. MANU/SC/0112/1953 : AIR1953SC521 : AIR1953SC521 , also it was held that a question of law of importance to the parties was a substantial question of law entitling the appellant to certificate under (the then) Section 110 of the Code.

14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be 'substantial', a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law 'involving in the case' there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.

IN THE SUPREME COURT OF INDIA

C.A. No. 1117 of 2001

Decided On: 08.02.2001

Santosh Hazari vs. Purushottam Tiwai (Dead) by L.Rs.

Coram:

Dr. A.S. Anand, C.J., R.C. Lahoti and Brijesh Kumar, JJ.

Citation:(2001) 3 SCC 179

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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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Whether first appellate court can reverse decree of trial court even in absence of any cross-appeal or cross-objection by plaintiff?

The fact remains that to the extent to which the decree is against the respondent and he wishes to get rid of it he should have either filed an appeal of his own or taken cross objection failing which the decree to that extent cannot be insisted on by the respondent for being interfered, set aside or modified to his advantage. The law continues to remain so post-1976 amendment. In a suit seeking specific performance of an agreement to sell governed by the provisions of theSpecific Relief Act, 1963 the Court has a discretion to decree specific performance of the agreement. The plaintiff may also claim compensation under Section 21 or any other relief to which he may be entitled including the refund of money or deposit paid or made by him in case his claim for specific performance is refused. No compensation or any other relief including the relief of refund shall be granted by the Court unless it has been specifically claimed in the plaint by the plaintiff. Certainly the relief of specific performance is a larger relief for the plaintiff and more onerous to the defendant compared with the relief for compensation or refund of money. The relief of compensation or refund of money is a relief smaller than the relief of specific performance. A plaintiff who files a suit for specific performance claiming compensation in lieu of or in addition to the relief of specific performance or any other relief including the refund of any money has a right to file an appeal against the original decree if the relief of specific performance is refused and other relief is granted. The plaintiff would be a person aggrieved by the decree in spite of one of the alternative reliefs having been allowed to him because what has been allowed to him is the smaller relief and the larger relief has been denied to him. A defendant against whom a suit for specific performance has been decreed may file an appeal seeking relief of specific performance being denied to the plaintiff and instead a decree of smaller relief such as that of compensation or refund of money or any other relief being granted to the plaintiff for the former is larger relief and the latter is smaller relief. The defendant would be the person aggrieved to that extent. It follows as a necessary corollary from the abovesaid statement of law that in an appeal filed by the defendant laying challenge to the relief of compensation or refund of money or any other relief while decree for specific performance was denied to the plaintiff, the plaintiff as a respondent cannot seek the relief of specific performance of contract or modification of the impugned decree except by filing an appeal of his own or by taking cross objection.

We are, therefore, of the opinion that in the absence of cross appeal preferred or cross objection taken by the plaintiff-respondent the First Appellate Court did not have jurisdiction to modify the decree in the manner in which it has done. Within the scope of appeals preferred by the appellants the First Appellate Court could have either allowed the appeals and dismissed the suit filed by the respondent in its entirety or could have deleted the latter part of the decree which granted the decree for specific performance conditional upon failure of the defendant to deposit the money in terms of the decree or could have maintained the decree as it was passed by dismissing the appeals. What the First Appellate Court has done is not only to set aside the decree to the extent to which it was in favour of the appellants but also granted an absolute and out and out decree for specific performance of agreement to sell which is to the prejudice of the appellants and to the advantage of the respondent who has neither filed an appeal nor taken any cross objection.

The learned counsel for the respondent forcefully argued that even in the absence of appeal preferred by the plaintiff or cross objection taken by the plaintiff-respondent the Appellate Court was not powerless to grant the decree which it has done in exercise of the power conferred by Rule 33 of Order 41 of the CPC. Rule 33 of Order 41 as also Rule 4 thereof, which have to be read necessarily together, are set out hereunder:

ORDER 41 Appeals from Original Decrees "33. Power of Court of Appeal.-The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees:

Provided that the Appellate Court shall not make any order under section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.

Illustration A claims a sum of money as due to him from X or Y, and in a suit against both obtains a decree against X. X, appeals and A and Y are respondents. The Appellate Court decides in favour of X. It has power to pass a decree against Y.

4. One of several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on ground common to all.-Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be."

Rule 4 seeks to achieve one of the several objects sought to be achieved by Rule 33, that is, avoiding a situation of conflicting decrees coming into existence in the same suit. The abovesaid provisions confer power of widest amplitude on the appellate court so as to do complete justice between the parties and such power is unfettered by consideration of facts like what is the subject matter of appeal, who has filed the appeal and whether the appeal is being dismissed, allowed or disposed of by modifying the judgment appealed against. While dismissing an appeal and though confirming the impugned decree, the appellate court may still direct passing of such decree or making of such order which ought to have been passed or made by the court below in accordance with the findings of fact and law arrived at by the court below and which it would have done had it been conscious of the error committed by it and noticed by the Appellate Court. While allowing the appeal or otherwise interfering with the decree or order appealed against, the appellate court may pass or make such further or other, decree or order, as the case would require being done, consistently with the findings arrived at by the appellate court. The object sought to be achieved by conferment of such power on the appellate court is to avoid inconsistency, inequity, inequality in reliefs granted to similarly placed parties and unworkable decree or order coming into existence. The overriding consideration is achieving the ends of justice. Wider the power, higher the need for caution and care while exercising the power. Usually the power under Rule 33 is exercised when the portion of the decree appealed against or the portion of the decree held liable to be set aside or interfered by the appellate court is so inseparably connected with the portion not appealed against or left untouched that for the reason of the latter portion being left untouched either injustice would result or inconsistent decrees would follow. The power is subject to at least three limitations: firstly, the power cannot be exercised to the prejudice or disadvantage of a person not a party before the Court; secondly, a claim given up or lost cannot be revived; and thirdly, such part of the decree which essentially ought to have been appealed against or objected to by a party and which that party has permitted to achieve a finality cannot be reversed to the advantage of such party. A case where there are two reliefs prayed for and one is refused while the other one is granted and the former is not inseparably connected with or necessarily depending on the other, in an appeal against the latter, the former relief cannot be granted in favour of the respondent by the appellate court exercising power under Rule 33 of Order 41.

Supreme Court of India

Banarsi And Ors vs Ram Phal on 17 February, 2003

Bench: R.C. Lahoti, Brijesh Kumar

Citation: AIR2003SC1989,(2003)9SCC606,

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