‘REPORTABLE’

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 14699-14701 OF 2015

NEMAI CHANDRA DEY (DEAD) THROUGH LRS. Appellant(s)

VERSUS

PRASANTA CHANDRA (DEAD) THROUGH LRS. & ANR. Respondent(s)

J U D G M E N T

K. M. JOSEPH, J.

(1) This is yet another case where contrary to the vision

of the founding fathers, non-adherence to the principles

governing the exercise of power by the first appellate Court

has driven the parties to the highest Court. The principles

entrenched in Order XLI Rule 31 of the Code of Civil

Procedure, 1908, which has been the subject matter of catena

of decisions of this Court, lay down the manner in which an

appeal in a civil suit must be considered by the Appellate

court. A further appeal to the High Court lies only on

substantial questions of law. Therefore, the law

contemplates that a party aggrieved by the decision of the

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trial Court gets full opportunity to have his grievance

investigated by the first Appellate Court which is expected

to reappreciate the evidence and consider the matter unless

it be that it purports to invoke the power under Order XLI

Rule 11.

(2) The plaintiff in this case was wife of the uncle of

the first defendant. Both the original plaintiff and the

first defendant have passed away. The lis is at present

being taken forward by their legal representatives.

This suit was one filed by the plaintiff seeking inter

alia declaration of two documents which are styled as gift

deeds dated 29.07.1990 and 30.07.1990 as void. The Suit

came to be filed in the year 1999. The prayer sought in the

suit are as follows:

“(a) There be a decree for declaration of title of

the plaintiff in the property described in Schedule B

and that the alleged two gift deeds are void and not

executed by the plaintiff and decree for permanent

injunction restaining the defendants from creating any

claim or breach of peace on the basis of the alleged

gift deed.

b) if the plaintiff is declared to have title in

property in schedule B according to the learned Court

or she is dispossessed during the pendency of the suit

then a decree for restitution of Vhas possession with

the help of court in the said property.

c) All costs of the court

d) Any other relief the Plaintiff may get in law or

equity be decree.”

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CIVIL APPEAL NOS. 14699-14701 OF 2015

(3) Evidence was led by the parties. The plaintiff

herself was examined as PW 1. She has undoubtedly deposed

that the first defendant who was looking after her, after

the death of her husband, impressed upon her for the need

for a power of attorney and it is this which led her to

execute the documents which she discovered later were

actually gift deeds in favour of the defendant.

(4) The case of the appellants’ predecessor was that the

first defendant was, in fact, taking care of plaintiff after

the death of the paternal uncle of the first defendant and

it is out of love and affection and that the gift deeds were

indeed executed. The defendant has purported to examine the

scribe and attesting witness among other evidence. The

trial Court came to the conclusion on an appreciation of

evidence which, no doubt, according to the appellants, was

not carried out in the manner contemplated or warranted in

the facts of the case that the gift deeds were void and

liable to be cancelled. On the said reasoning, the trial

Court proceeded to decree the suit. The trial Court

proceeded on the basis that the plaintiff was a pardahnashin

lady and the character of the document was not brought to

the notice of the plaintiff.

(5) The first defendant appealed. In the first Appellate

Court, the problem of the parties begins. This is so for

the reason that contrary to the command of law which has

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CIVIL APPEAL NOS. 14699-14701 OF 2015

been reiterated on a number of occasions by this Court, the

appellate Court finds as follows:

“I have gone through the find of both sides

referred by Ld. Lawyers of both sides. Both Mr. A. K.

Misra, Ld. Lawyer of the app and Mr. S.Rahaman,

Ld.Lawyer of Respondent have elaborately discussed the

findings referred by them.

After hearing argument of both sides and after

giving my anxious thought over the matter I am

constrained to hold that the argument of App is not

tenable and the argument of Respondent is much

acceptable and the decision cited by the Ld. Advocate

for the Respondent is sustainable and rightly accepted

by the court below and as such no interference in the

judgment and decree of the Court below is required by

any means.

As a result, this appeal is likely to be

dismissed and the judgment and decree passed by the

court below is affirmed. Hence it is ordered that the

appeal be and the same in dismissed on contest but

without cost.

Let a x-rox copy of the judgment be sent to Ld.

Lower Court at an early date.”

(6) We may only notice what this Court on one occasion has

declared in Madhukar and Others v. Sangram and Others (2001)

4 SCC 756. This Court, inter alia, referred to an earlier

judgment reported in Santosh Hazari v. Purushottam (2001) 3

SCC 179 wherein it is stated as follows:

“6. In Santosh Hazari v. Purushottam Tiwari [(2001) 3

SCC 179 : JT (2001) 2 SC 407] this Court opined: (SCC

pp. 188-89, para 15)

“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

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CIVIL APPEAL NOS. 14699-14701 OF 2015

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. … 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.”

(7) We have no difficulty whatsoever in coming to the

conclusion that the first Appellate Court clearly has not

discharged its duties as the first Appellate Court. As

already noticed, the scheme of the Constitution, inter alia,

is that the findings of fact are ordinarily to attain

finality at the hands of the Court of Appeal and it is only

on substantial questions of law that the High Court can

interfere in the findings of the first Appellate Court.

Therefore, apart from reiterating that it is a valuable

right of the party which is at stake, it would not be

conducive to the interest of administration of justice that

findings of fact are rendered without due care and

application of mind to the evidence and the law governing

the parties. We say for the reason that any breach of duty

by the first appellate Court in this regard has far reaching

consequences on the administration of justice.

(8) The case which is not decided in the manner

contemplated under law, can finally culminate in the

litigants approaching the highest Court and invoking power

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CIVIL APPEAL NOS. 14699-14701 OF 2015

under Article 136 of the Constitution of India. Power under

Article 136 is intended to be used rarely. This is an

extraordinary jurisdiction.

(9) The founding fathers contemplated that Courts at each

level discharge their duties as contemplated under law.

That means that the first Appellate Court will reappreciate

the evidence, consider the arguments and apply the law and

arrive at findings. Only then limiting of the jurisdiction

of the High Court to only cases where substantial question

of law arises would be justified. Approach to this Court

under Article 136 could be on rare occasions only. We say

nothing more except to reiterate that it is the bounden duty

of the first appellate Court to deal with appeals within the

confines of law and keeping in mind the principles which

have been enumerated under Order XLI Rule 31 and various

judgments of this Court.

(10)Being dissatisfied, the appellants carried the matter

to the High Court in second appeal.

On one occasion, the High Court dismissed the appeal

on account of the absence of the appellants and under Order

XLI Rule 11. This is impugned. Thereafter the matter was

taken up and then followed the next impugned judgment. In

the said impugned judgment, the High Court proceeded to find

that the judgment of the trial Court was elaborate and

detailed and thereafter, the Court was of the view that the

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CIVIL APPEAL NOS. 14699-14701 OF 2015

contentions of the plaintiff was inevitable and the Court

below was correct in arriving at the findings returned. The

appellants was not able to show any perversity in the

impugned judgments. The five substantial questions of law

did not appeal to the Court. The appellants did not show

any material to establish that the findings of fact returned

by the trial Court and affirmed in appeal was perverse. And

so far as burden of proof was concerned, the trial Court had

not acted irregularly in arriving at the findings.

Therefore, the Court did not find it appropriate to recall

the order.

(11)When this Court initially heard the matter, on

25.08.2014, it issued notice and also granted stay of

further proceeding of execution. Thereafter, it would

appear that by order dated 16.12.2015, the interim order

granted earlier was vacated. But by the same order, the

Court granted leave and it is thereafter, the matter came

before us.

(12)We have heard the learned counsel for the appellants

and also the learned counsel for the respondents.

(13)Learned counsel for the appellants would point out

that the case of the appellants has not been considered by

the appellate Court, the point which we have already noted.

No doubt, learned counsel for the respondents supported the

order of the High Court.

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(14)As we have noticed, the High court has proceeded on

the basis that the consideration by the first appellate

Court to the findings of the trial Court constituted

concurrent findings as if this is a case where the first

appellate Court has discharged its duties and given its

approval to the trial Court findings. One could have

understood the High Court so holding in a case where the

first appellate Court had considered the appeal in the

manner provided by law and as established by long line of

judgments. We are clear in mind that this is indeed one

such case where by virtue of the first appellate Court

having failed to discharge its duties, in the facts of this

case, remand to the first appellate Court is warranted.

This is so for the reason that the suit was contested.

Parties led elaborate evidence. What is taken in defence

was the validity of the two registered gift deeds, which

according to the first defendant were executed lawfully. In

this connection there is a contention raised by the

appellants that the plaintiff has executed a number of

documents by way of sale deeds. The plaintiff, according to

the appellants was, in fact, literate, though a pardahnashin

lady. The first defendant has a case that it was a suit

which was laid on the strength of the influence wielded by

the nephew of the plaintiffs-sister in whose house the

plaintiff was staying for some time. The scribe has been

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examined as a witness. The attesting witness has been

examined. We may notice in this regard, no doubt that in

respect of a pardahnashin lady, this Court has followed the

view taken by the Privy Council and reiterated the

principles in Mst. Kharbuja Kuer v. Jangbahadur Rai and

Others AIR 1963 1203. In this case, no doubt, the plaintiff

has given evidence that she executed the gift deeds in

question on the basis of her being under the impression that

power of attorney was executed. There were other items of

evidence which were before the Court also. We do not wish

to say anything more in view of the order of remand that we

are passing. We are of the view that the interest of

justice do require a remand to the first appellate Court in

the nature of the order which has been passed by the Courts.

(15)Accordingly, the impugned judgments will stand set

aside. The appeals are allowed. We remand the case back to

the first appellate Court which will take up T.A. No.

18/2010. The appellate Court will proceed to dispose of the

appeal with notice to the parties and bearing in mind the

principles which are well settled and do not require any

reiteration. As the appeal emanates from the suit of the

year 1999, we direct that the first appellate Court will

dispose of the appeal as early as possible and preferably

within a period of six months from the date on which a copy

of the judgment is placed before it. We make it clear that

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we have not pronounced on the merits of the either sides.

Parties will bear their respective costs.

…………………………………………………………………., J.

[ K.M. JOSEPH ]

…………………………………………………………………., J.

[ HRISHIKESH ROY ]

New Delhi;

April 19, 2022.

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ITEM NO.3 COURT NO.10 SECTION XVI

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Civil Appeal Nos. 14699-14701/2015

NEMAI CHANDRA DEY (DEAD) THROUGH LRS. Appellant(s)

VERSUS

PRASANTA CHANDRA (DEAD) THROUGH LRS. & ANR. Respondent(s)

(With IA No. 66542/2021 - GRANT OF INTERIM RELIEF)

Date : 19-04-2022 This matter was called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE K.M. JOSEPH

HON'BLE MR. JUSTICE HRISHIKESH ROY

For Appellant(s) Mr. Joydeep Mazumdar, Adv.

Mr. Rabindra Narayan Dutta, Adv.

Mr. Rohit Dutta, Adv.

Mr. Priyata Chakraborty, Adv.

Ms. Shalini Kaul, AOR

For Respondent(s) Mr. Shaffi Mather, Adv.

Mr. Siddhartha Chowdhury, AOR

Mr. Amit Pawan, AOR

Mr. Hassan Zubair Waris, Adv.

Ms. Shivangi, Adv.

Mr. Aakarsh, Adv.

Mr. Abhishek Amritanshu, Adv.

UPON hearing the counsel the Court made the following

O R D E R

The appeals are allowed in terms of the signed

reportable judgment.

Pending application stands disposed of.

(NIDHI AHUJA) (RENU KAPOOR)

AR-cum-PS BRANCH OFFICER

[Signed reportable judgment is placed on the file.]

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