NEMAI CHANDRA DEY (DEAD) THROUGH LRS.versusPRASANTA CHANDRA (DEAD) THROUGH LRS. & ANR.

1076            SUPREME COURT
                          [2022]REPORTS
                                 4 S.C.R. 1076                 [2022] 4 S.C.R.


 A            NEMAI CHANDRA DEY (DEAD) THROUGH LRS.
                                          v.
          PRASANTA CHANDRA (DEAD) THROUGH LRS. & ANR.
                      (Civil Appeal Nos. 14699-14701 of 2015)
 B
                                  APRIL 19, 2022
               [K. M. JOSEPH AND HRISHIKESH ROY, JJ.]
              Civil Procedure Code, 1908 – Or. XLI, r. 31 – Duty of first
       Appellate Court – Reappreciation of evidence – Consideration of
 C     arguments and arriving at findings – Suit was filed by the plaintiff
       (wife of the uncle of the first defendant) seeking inter alia declaration
       of two documents i.e. gift deeds as void – Trial Court came to the
       conclusion that the plaintiff was a pardahnashin lady and the
       character of the document was not brought to the notice of the
 D     plaintiff – Gift deeds were declared void – Trial Court decreed the
       suit – First Appellate Court dismissed the appeal without
       reappreciating the evidence led by the parties – In the second appeal,
       the High Court proceeded to find that the judgment of the trial
       Court was elaborate and detailed – Also, the contentions of the
       plaintiff was inevitable and the Courts below was correct in arriving
 E     at the findings – On appeal, held: First Appellate Court has not
       discharged its duties as the first Appellate Court – 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 u/Or. XLI, r.31 and various judgments of the Supreme
 F     Court – That means 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 the Supreme Court u/Art. 136 could be on
       rare occasions only – Therefore, in the interest of justice, the matter
 G     remanded to the first Appellate Court.
             Allowing the appeals, the Court
             HELD: 1. The High court has proceeded on the basis that
       the consideration by the first appellate Court to the findings of
 H     the trial Court constituted concurrent findings as if this is a case
                                         1076
  NEMAI CHANDRA DEY (DEAD) THROUGH LRS. v. PRASANTA                   1077
         CHANDRA (DEAD) THROUGH LRS. & ANR.

where the first appellate Court has discharged its duties and given   A
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. It is clear that this
is indeed one such case where by virtue of the first appellate        B
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    C
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-    D
sister in whose house the plaintiff was staying for some time.
The scribe has been examined as a witness. The attesting witness
has been examined. 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
                                                                      E
was executed. There were other items of evidence which were
before the Court also. This Court is 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.
Accordingly, the impugned judgments will stand set aside. The
appeals are allowed and the case is remanded back to the first        F
appellate Court. [Paras 14 & 15][1082-E-H; 1083-A-D
      Santosh Hazari v. Purushottam (2001) 3 SCC 179 :
      [2001] 1 SCR 948 – relied on.
      Madhukar and Others v. Sangram and Others (2001)                G
      4 SCC 756 : [2001] 3 SCR 138; Mst. Kharbuja Kuer v.
      Jangbahadur Rai and Others AIR 1963 1203 : [1963]
      1 SCR 456 - referred to.


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1078            SUPREME COURT REPORTS                           [2022] 4 S.C.R.


 A                              Case Law Reference
       [2001] 3 SCR 138                  referred to                 Para 6
       [2001] 1 SCR 948                  relied on                   Para 6
       [1963] 1 SCR 456                  referred to                 Para 14
 B
            CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.14699-
       14701 of 2015.
             From the Judgment and Order dated 12.12.2013 of the High Court
       of Calcutta in S.A.T. No.40 of 2013 and Order dated 25.03.2014 in
 C     S.A.T. No.40 of 2013 with C.A.N. No.12727 of 2013.
            Joydeep Mazumdar, Rabindra Narayan Dutta, Rohit Dutta, Priyata
       Chakraborty, Ms. Shalini Kaul, Advs. For the Appellants.
             Shaffi Mather, Siddhartha Chowdhury, Amit Pawan, Hassan Zubair
       Waris, Ms. Shivangi, Aakarsh, Abhishek Amritanshu, Advs. for the
 D     Respondents.
             The Judgment of the Court was delivered by
             K. M. JOSEPH, J.
              (1) This is yet another case where contrary to the vision of the
 E
       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
 F     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 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
 G
       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.
 H
  NEMAI CHANDRA DEY (DEAD) THROUGH LRS. v. PRASANTA                             1079
  CHANDRA (DEAD) THROUGH LRS. & ANR. [K. M. JOSEPH, J.]

      This suit was one filed by the plaintiff seeking inter alia declaration   A
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            B
      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          C
      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.”
      (3) Evidence was led by the parties. The plaintiff herself was            D
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.                                               E
       (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
                                                                                F
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       G
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 been reiterated on a number of occasions
by this Court, the appellate Court finds as follows:                            H
1080            SUPREME COURT REPORTS                            [2022] 4 S.C.R.


 A              “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
 B           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.
 C
                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.

 D               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
 E     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)
 F              “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
 G
                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
 H              different finding. This would satisfy the court hearing a further
  NEMAI CHANDRA DEY (DEAD) THROUGH LRS. v. PRASANTA                                 1081
  CHANDRA (DEAD) THROUGH LRS. & ANR. [K. M. JOSEPH, J.]

           appeal that the first appellate court had discharged the duty            A
           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   B
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              C
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           D
Court and invoking power 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               E
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                  F
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             G
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
                                                                                    H
1082             SUPREME COURT REPORTS                            [2022] 4 S.C.R.


 A     proceeded to find that the judgment of the trial Court was elaborate and
       detailed and thereafter, the Court was of the view that the 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
 B
       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.
 C           (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.
 D            (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
 E     the respondents supported the order of the High Court.
               (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
 F     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,
 G     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
 H
  NEMAI CHANDRA DEY (DEAD) THROUGH LRS. v. PRASANTA                             1083
  CHANDRA (DEAD) THROUGH LRS. & ANR. [K. M. JOSEPH, J.]

way of sale deeds. The plaintiff, according to the appellants was, in fact,     A
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 examined as a witness. The attesting
witness has been examined. We may notice in this regard, no doubt that
                                                                                B
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            C
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.           D
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          E
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
we have not pronounced on the merits of the either sides.
       Parties will bear their respective costs.                                F

Ankit Gyan                                                   Appeals allowed.
(Assisted by : Rahul Rathi, LCRA)



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