First Appellate Court Should Deal With All Issues And Evidence And Follow Procedure Under CPC: Supreme Court

The Supreme Court observed that it is the duty of the First Appellate Court to deal with all the issues and the evidence led by the parties before recording its findings.

First appeals are to be decided after following the procedure to be followed under the Code of Civil Procedure, the bench of Justices MR Shah and AS Bopanna observed. 

In this case, the Trial Court dismissed a specific performance suit filed by the plaintiff on the ground that he had not shown the willingness to purchase the property with the tenants and there are no such pleadings in the plaint and that the plaintiff has not elected to purchase the property as its nature. In first appeal, the High Court, the plaintiff filed an affidavit, in which for the first time he stated that he is ready and willing to purchase the property from the defendants. Taking note of this affidavit, the High Court decreed the suit for specific performance of the contract.

In appeal before the Apex Court, the defendant contended that the High Court not at all re-appreciated the evidence on record and without even discussing the evidence on record and even without raising the points for determination on the basis of the issues which were framed by the Trial Court, allowed the appeal and has decreed the suit for specific performance, which otherwise is not permissible.

Perusing the judgment of the High Court, the bench noted the following

(1) While disposing of the appeal, the High Court has not raised the points for determination as required under Order XLI Rule 31 CPC.

(2) It also appears that the High Court being the First Appellate court has not discussed the entire matter and the issues in detail and as such it does not reveal that the High Court has re-appreciated the evidence while disposing of the first appeal.

(3) It also appears that the High Court has disposed of the appeal preferred under Order XLI CPC read with Section 96 in a most casual and perfunctory manner.

(4) Apart from the fact that the High Court has not framed the points for determination as required under Order XLI Rule 31 CPC, it appears that even the High Court has not exercised the powers vested in it as a First Appellate Court.  

Referring to the decisions in B.V. Nagesh and Anr. Vs. H.V. Sreenivasa Murthy, (2010) 13 SCC 530, H. Siddiqui (Dead) by LRs. Vs. A. Ramalingam (2011) 4 SCC 240 and State Bank of India and Anr. Vs. Emmsons International Limited and Anr. (2011) 12 SCC 174, the bench observed thus:

7. Applying the law laid down by this Court in the aforesaid decisions, if the impugned judgment and order passed by the High Court is considered, in that case, there is a total non-compliance of the provisions of the Order XLI Rule 31 CPC. The High Court has failed to exercise the jurisdiction vested in it as a First Appellate Court; the High Court has not at all re-appreciated the entire evidence on record; and not even considered the reasoning given by the learned Trial Court, in particular, on findings recorded by the learned Trial Court on the issue of willingness.

The court also criticized the procedure adopted by the High Court of taking into account the affidavit filed by the plaintiff. It said:

8.The aforesaid procedure adopted by the High Court relying upon the affidavit in a First Appeal by which virtually without submitting any application for amendment of the plaint under Order VI Rule 17 CPC, the High Court as 15 a First Appellate Court has taken on record the affidavit and as such relied upon the same. Such a procedure is untenable and unknown to law. First appeals are to be decided after following the procedure to be followed under the CPC. The affidavit, which was filed by the plaintiff and which has been relied upon by the High Court is just contrary to the pleadings in the plaint. As observed hereinabove, there were no pleadings in the plaint that he is ready and willing to purchase the property and get the sale deed executed of the property with tenants and the specific pleadings were to hand over the peaceful and vacant possession after getting the tenants evicted and to execute the sale deed. The proper procedure would have been for the plaintiff to move a proper application for amendment of the plaint in exercise of the power under Order VI Rule 17 CPC, if at all it would have been permissible in a first appeal under Section 96 read with Order XLI CPC. However, straightaway to rely upon the affidavit without amending the plaint and the pleadings is wholly impermissible under the law. Therefore, such a procedure adopted by the High Court is disapproved

Setting aside the High Court judgment, the court observed that since there was no willingness on the part of the plaintiff, the plaintiff was not entitled to the decree for specific performance.  

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