LexVINOD KUMAR versus GANGADHAR
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A 8 [2014] 10 S.C.R. 1050 VINOD KUMAR v. GAN GAD HAR (Civil Appeal No. 9681 of 2014) OCTOBER 13, 2014 [FAKKIR MOHAMED IBRAHIM KALIFULLA AND ABHAY MANOHAR SAPRE, JJ.] Code of Civil Procedure, 1908 - s.96 rlw Or.41, r.31 - C Scope and powers of the first appellate court - Suit filed by appellant against respondent for specific performance of contract for purchase of house - Dismissed by trial court - Order affirmed in first appeal by High Court - Validity - Held: High Court did not deal with any of the submissions urged by D the appellant and/or respondent nor it took note of the grounds taken by the appellant in appeal nor made any attempt to appreciate the evidence adduced by the parties with a view to find out as to whether judgment of the trial court could be sustained or not - This resulted in causing prejudice to the E appellant whose valuable right to prosecute in the first appeal on facts and law was adversely affected which, in turn, deprived him of a hearing in the appeal in accordance with law - Case remanded to High Court for deciding the first appeal afresh. F Allowing the appeal, the Court HELD: The High Court did not deal with any of the submissions urged by the appellant and/or respondent nor it took note of the grounds taken by the appellant in G grounds of appeal nor made any attempt to appreciate the evidence adduced by the parties in the light of the settled legal principles and decided case law applicable to the issues arising in the case with a view to find out as to whether judgment of the trial court can be sustained H 1050 VINOD KUMAR v. GANGADHAR 1051 or not and if so, how, and if not, why? Being the first A appellate court, it was the duty of the High Court to have decided the first appeal keeping in view the scope and powers conferred on it under Section 96 read with Order 41 Rule 31. It was not done, thereby, resulting in causing prejudice to the appellant whose valuable right to B prosecute in the first appeal on facts and law was adversely affected which, in turn, deprived him of a hearing in the appeal in accordance with law. The case is remanded to ttie 1-tigh Court for deciding the first appeal afresh. [Paras 22, 23, 26) [1059-C-G] c Santosh Hazari vs. Purushottam Tiwari (Deceased) by L.Rs. (2001) 3 SCC 179: 2001 (1) SCR 948; Madhukar & Ors. v. Sang ram & Ors. (2001) 4 SCC 756: 2001 (3) SCR 138; H.K.N. Swami v. lrshad Basith (2005) 10 SCC 243; Jagannath v. Arulappa & Anr. (2005) 12 SCC 303; B. V D Nagesh & Anr: vs. H. V. Sreenivasa Murthy (2010) 13 SCC 530 and State Bank of India & Anr. vs. Emmsons International Ltd. & Anr. (2011) 12 sec 17 4 - relied on. Kurian Chacko vs. Varkey Ouseph, AIR 1969 Kerala 316 E - referred to. Case Law Reference: AIR 1969 Kerala 316 · referred to Para 12 2001 (1) SCR 948 relied on Para 15 F 2001 (3) SCR 138 . relied on Para 16 (2005) 1 o sec 243 relied on Para 17 (2005) 12 sec 303 relied on Para 18 G (2010) 13 sec 530 relied on Para 19 (2011) 12 sec 114 relied on Para 20 ,. H 1052 SUPREME COURT REPORTS [2014] 10 S.C.R. A CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9681 of 2014. From the Judgment & Order dated 21.03.2013 of the High Court of Madhya Pradesh Bench at Indore in First Appeal No. B 173 of 1999. c Ravindra Kumar, Manoj Saxena, Ram Krishna (for Dr. Kailash Chand) for the Appellant. Rameshwar Prasad Goyal for the Respondent. The Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J. 1. We have perused the Office Report dated 10.10.2014. It discloses that despite last opportunity granted to the respondent, he has not filed any D counter affidavit till date. Today, when the matter was taken up for hearing, there was no representation for the respondent. Therefore, we proceed to decide the appeal on merits. 2. Leave granted. E 3. This is a civil appeal filed by the plaintiff against the judgment/decree dated 21.03.2013 passed by the single Judge of the High Court of M. P., Indore Bench in First Appeal No. 173 of 1999, which in tum arises out of the judgment and decree dated 27.02.1999 passed by the second Additional District F Judge, Mandsaur in Civil Suit No. 3-SA/97. 4. In order to appreciate the short issue involved in this appeal, it is necessary to state a few relevant facts: G 5. The appellant (plaintiff) filed a civil suit in the Court of second Additional DistrictJudge, Mandsore being Civil Suit no. 36A/97 agai
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