Order XLI, Rule 31 CPC:
The said provisions provide guidelines for the appellate court as to how the court has to proceed and decide the case.
The provisions should be read in such a way as to require that the various particulars mentioned therein should be taken into consideration. Thus, it must be evident from the judgment of the appellate court that the court has properly appreciated the facts/evidence, applied its mind and decided the case considering the material on record. It would amount to substantial compliance of the said provisions if the appellate court’s judgment is based on the independent assessment of the relevant evidence on all important aspect of the matter and the findings of the appellate court are well founded and quite convincing. It is mandatory for the appellate court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final court of fact, the first appellate court must not record mere general expression of concurrence with the trial court judgment rather it must give reasons for its decision on each point independently to that of the trial court. Thus, the entire evidence must be considered and discussed in detail. Such exercise should be done after formulating the points for consideration in terms of the said provisions and the court must proceed in adherence to the requirements of the said statutory provisions. (Vide: Thakur Sukhpal Singh v. Thakur Kalyan Singh and Anr., AIR 1963 SC 146; Girijanandini Devi and Ors. v. Bijendra Narain Choudhary, AIR 1967 SC 1124; G. Amalorpavam and Ors. v. R.C. Diocese of Madurai and Ors., (2006) 3 SCC 224; Shiv Kumar Sharma v. Santosh Kumari, (2007) 8 SCC 600; and Gannmani Anasuya and Ors. v. Parvatini Amarendra Chowdhary and Ors., AIR 2007 SC 2380
In B.V. Nagesh and Anr. v. H.V. Sreenivasa Murthy JT (2010) 10 SC 551, while dealing with the issue, Apex Court held as under:
The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case therein is open for re-hearing 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 by reasons, on all the issues arising along with the contentions put- forth and pressed by the parties for decision of the appellate Court. Sitting as a court of appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179 and Madhukar and Ors. v. Sangram and Ors., (2001) 4 SCC 756
More so, none of the courts below had taken into consideration Clause 11 of the agreement dated 30.6.1979 which reads as under:
11. In the event of any default on the part of the vendors in completing the sale the earnest money paid herewith shall be refunded to the purchasers together with a like amount of ` 5,000/- (Rupees five thousand only) as liquidated damages for breach of contract.
Thus, in case of non-execution of the sale deed, the Appellant could get the earnest money with damages.
So far as the issues of inadequate consideration and rise in price are concerned, both the parties have argued the same at length and placed reliance on a large number of judgments of Apex Court, including: Chand Rani (Smt.) (dead) by L.Rs. v. Kamal Rani (Smt.)(dead) by L.Rs., AIR 1993 SC 1742; Nirmala Anand v. Advent Corporation (P) Ltd. and Ors., (2002) 8 SCC 146; P. D’Souza v. Shondrilo Naidu, (2004) 6 SCC 649; Jai Narain Parasrampuria (dead) and Ors. v. Pushpa Devi Saraf and Ors., (2006) 7 SCC 756; Pratap Lakshman Muchandi and Ors. v. Shamlal Uddavadas Wadhwa and Ors., (2008) 12 SCC 67; and Laxman Tatyaba Kankate and Anr. v. Taramati Harishchandra Dhatrak (2010) 7 SCC 717.
Categories: Civil Appeal