MALLURU MALLAPPA (D) THR. LRS. versus KURUVATHAPPA & ORS.

Citation: [2020] 2 S.C.R. 789 · Decided: 12-02-2020 · Supreme Court of India · Bench: S. ABDUL NAZEER · Disposal: Directions issued

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Judgment (excerpt)

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789
MALLURU MALLAPPA (D) THR. LRS.
v.
KURUVATHAPPA & ORS.
(Civil Appeal No. 1485 of 2020)
FEBRUARY 12, 2020
[S. ABDUL NAZEER AND SANJIV KHANNA, JJ.]
Code of Civil Procedure, 1908 – ss.96, 100 and Or.XLI, r.31
– Appellant-plaintiff filed suit against respondents-defendants for
specific performance of agreement to sell – Defendant no.1 pleaded
that the suit was barred by limitation and that the plaintiff was not
ready and willing to perform his part of the contract – Suit dismissed
– Confirmed by High Court – Held: s.96 provides for filing of an
appeal from the decree passed by any court exercising original
jurisdiction to the court authorized to hear the appeals from the
decisions of such courts – In the instant case, the appeal from the
decree passed by the trial court lies to High Court – An appeal is a
continuation of the proceedings of the original court – Ordinarily,
the appellate jurisdiction involves re-hearing on law as well as on
fact and is invoked by an aggrieved person – First appeal is a
valuable right of the appellant wherein all questions of fact and
law decided by the trial court are open for re-consideration – A
first appeal u/s.96 is entirely different from a second appeal u/s.100
– s.100 expressly bars second appeal unless a question of law is
involved in a case and the question of law so involved is substantial
in nature – In the present case, issue relating to readiness and
willingness of the plaintiff to perform his part of the contract and
limitation were held against him and the suit was dismissed – Appeal
before High Court involved both disputed questions of law and
fact – Without examination of any of these aspects it dismissed the
appeal by a cryptic order – High Court failed to follow the provisions
of Or.XLI, r.31 while deciding the appeal – Judgment set aside –
Matter remanded to High Court for fresh disposal in accordance
with law – Limitation Act, 1963 – Article 54 of the Schedule.
Words & Expressions – ‘appeal’ – Meaning of – Held:
Expression ‘appeal’ has not been defined in CPC – It is a judicial
 [2020] 2 S.C.R. 789
789
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SUPREME COURT REPORTS
[2020] 2 S.C.R.
examination of the decision by a higher court of the decision of a
subordinate court to rectify any possible error in the order under
appeal – Code of Civil Procedure, 1908 – s.96.
Partly allowing the appeal, the Court
HELD: 1.1 Section 96 of the CPC provides for filing of an
appeal from the decree passed by any court exercising original
jurisdiction to the court authorized to hear the appeals from the
decisions of such courts. In the instant case, the appeal from the
decree passed by the trial court lies to the High Court. The
expression ‘appeal’ has not been defined in the CPC. It is a judicial
examination of the decision by a higher court of the decision of a
subordinate court to rectify any possible error in the order under
appeal. An appeal is a continuation of the proceedings of the
original court. Ordinarily, the appellate jurisdiction involves a
re-hearing on law as well as on fact and is invoked by an aggrieved
person. The first appeal is a valuable right of the appellant and
therein all questions of fact and law decided by the trial court are
open for re-consideration. The judgment of the first appellate
court must display conscious application of mind and record
findings supported by reasons on all issues and contentions. A
first appeal under Section 96 of the CPC is entirely different from
a second appeal under Section 100. Section 100 expressly bars
second appeal unless a question of law is involved in a case and
the question of law so involved is substantial in nature. [Paras
11, 14 and 15][793-G-H; 794-A-B, F-H; 795-A-C]
1.2 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. The issue relating to readiness and willingness of the
plaintiff to perform his part of the contract and issue relating to
limitation were held against the plaintiff and the suit was
dismissed. The appeal before the High Court involved both
disputed questions of law and fact. The High Court without
examination of any of these aspects dismissed the appeal by a
cryptic order. The cour

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