RATTAN DEV versus PASAM DEVI

Citation: [2002] SUPP. 2 S.C.R. 394 · Decided: 13-09-2002 · Supreme Court of India · Bench: R.C. LAHOTI, BRIJESH KUMAR · Disposal: Appeal(s) allowed
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Judgment (excerpt)

A 
RATTAN DEV 
V. 
PASAM DEVI 
SEPTEMBER 13, 2002 
B 
[R.C. LAHOTI AND BRIJESH KUMAR, JJ.] 
Code of Civil Procedure, 1908: 
s. l 00-Second appeal-Substantial question of law-Suit for permanent 
C injunction-Special power of allorney and other witnesses for the plaintiff 
examined but not the plaintiff-Suit decreed-First appellate court drew adverse 
inference against plaintiff for not examining himself and dismissed the suit-
High Court holding that findings arrived at by first appellate court were 
purely findings of fact and there did not arise any substantial question of 
D law-Held, first appellate court was bound to apply its mind to all evidence 
available on record along with the fact of non-examination of the plaintiff and 
then test legality of the findings of trial court-The manner in which the 
appeal has been disposed by first appellate court cannot be said to be 
satisfactory-Non-application of mind by appellate court to other material, 
though available, and consequent failure on its part to discharge its judicial 
E obligation did raise a question of law having a substantial impact on the 
rights of parties, and, therefore, second appeal deserved to be heard on merits-
However, since first appellate cow·/ failed in discharging its obligation-statutory 
and judicial, more so when it is a judgment of reversal it would meet ends of 
justice if first appeal itself is heard afresh-Order of High Court as also 
F judgment and decree of first appellate court set aside-First appeal restored 
on file of first appellate court for decision afresh. 
Jshwar Bhai C. Patel alias Bachu Bhai Patel v. Harihar Behera and 
Anr., [ 1999) 3 SCC 457, referred to. 
G 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5838 of 
H 
2002. 
From the Judgment and Order dated 26.4.200 I of the Himachal Pradesh 
High Court in R.S.A. No.174 of 200 I. 
Ravi Bakshi and Varinder Kumar Sharma for the Appellant. 
394 
RATTAN DEV v. PASAMDEVI 
395 
A.K. Nag, R.K. Bansal and Akshay Kr. Ghai for the Respondent. 
A 
The following Order of the Court was delivered: 
Leave granted 
A suit for issuance of permanent preventive m1unction filed by the B 
appellant herein was decreed by the Trial Court, The defendant preferred an 
appeal. The First Appellate Court reversed the decree of the Trial Court and 
directed the suit to be dismissed. The plaintiff preferred a second appeal 
which has been dismissed in limine by the High Court forming an opinion 
that the findings arrived at by the First Appellate Court were purely findings 
of fact and no substantial question of law within the meaning of Section I 00 C 
CPC arose for consideration. 
A perusal of the judgment of the First Appellate Court shows that the 
plaintiff-appellant did not appear in the witness box although his special 
power of attorney and other witnesses were examined by the plaintiff. The 
First Appellate Court influenced by the non-examination of the plaintiff drew D 
an adverse inference against him and directed the suit to be dismissed solely 
on the ground of non-examination of the dismissed of the plaintiff. The 
judgment of the First Appellate Court shows that other evidence, though 
available on record, did not receive the attention of the First Appellate Court 
at all. 
E 
In our opinion, the First Appellate Court was bound to apply its mind 
to all the evidence available on record and then test the legality of the findings 
arrived at by the Trial Court. While doing so, the First Appellate Court could 
have taken the factum of the non-examination of the plaintiff also into 
consideration. The manner in which the appeal has been disposed of by the F 
First Appellate Court cannot be said to be satisfactory. Non-application of 
mind by the Appellate Court to other material, though available, and 
consequent failure of the Appellate Court to discharge its judicial obligation, 
did raise a question of law having a substantial impact on the rights of the 
parties, and therefore, the second appeal deserved to be heard on merits. 
Learned counsel for the respondent has placed reliance on Ishwar Bhai. 
C. Patel alias Bachu Bhai Patel v. Harihar Behera & Anr., [1999] 3 SCC, 
G 
457 wherein this Court has emphasised that withholding of the plaintiff himself 
from the witness box and thereby denying the defendant an opportunity for 
cross- examination of himself results into an adverse inference being drawn H 
396 
SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R. 
A against the plaintiff. That
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