Justice M. R. Shah and Justice A. S. Bopanna of the top court noted that the First Appellate Court cannot dispose of First Appeal as per Section 96, CPC, without points for determination as per Order XLI Order 31, CPC. The court while allowing the appeals had quashed as well as set aside the decision of High Court , restored the decision of Trial Court and directed original defendant to refund amount along with interest from date of agreement for sale till realization.
Defendant and plaintiff had entered into an agreement for sale of property and part of the sale consideration was given. In the agreement for sale , specific conditions were also mentioned wherein one condition was that defendant who is the original owner of suit property has to evict tenants from suit property as well as execute the agreement for sale on receiving complete sale consideration. Plaintiff issued a legal notice to defendant in this regard. A suit for specific performance of contract was filed by plaintiff before the Trial Court whereby the court dismissed the same. An appeal had been filed before the High Court and the court while allowing the appeal had quashed as well as set aside the decision of Trial Court and decreed the suit.
In a civil appeal that had been filed before the top court, the court observed:
“6.1 In the case of B.V. Nagesh and Anr. (supra), this Court has observed and held that without framing points for determination and considering both facts and law; without proper discussion and assigning the reasons, the First Appellate Court cannot dispose of the first appeal under Section 96 CPC and that too without raising the points for determination as provided under Order XLI Rule 31 CPC. In paragraphs 3 and 4, it is observed and held as under:-
“3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court shall state:
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.
4. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of 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. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings.
(Vide Santosh Hazari v. Purushottam Tiwari [(2001) 3 SCC 179], SCC p. 188, para 15 and Madhukar v. Sangram [(2001) 4 SCC 756] , SCC p. 758, para 5.)
LEGALFLAME 