The appellate court must provide a reasoned judgment when dismissing a first appeal, ensuring all issues are adequately addressed to uphold the parties' rights.

ORDER :

1. Leave granted.

2. This appeal deserves to be allowed on a short point that the Division Bench of the High Court, while deciding the First Appeal, has failed to take into consideration the parameters applicable for deciding a First Appeal under Section 96 of the Code of Civil Procedure, 1908¹[In short, “CPC”].

3. Appellant herein is the defendant in a suit for specific performance instituted by the respondent. Trial Court decreed the suit by an elaborate judgment dealing with the evidence on record. Aggrieved the appellant herein preferred an appeal under section 96 CPC. The First Appeal was dismissed by the High Court vide impugned judgment giving rise to the present appeal.

4. Briefly stated there was an agreement to sell to purchase a piece of land and building at Ashok Vihar for a total sale consideration of Rs.6 Crores 11 lakhs out of which initially an amount of Rs.60 lakhs was paid and thereafter it was alleged that Rs.30 lakhs were paid in cash later on. Thus, total amount of Rs.90 lakhs has been paid as alleged by the plaintiff and the balance consideration of Rs.5 Crores 21 lakhs was to be paid at the time of execution of sale deed and its registration. Both the parties had allowed oral as well as documentary evidence in support of their cases. The Trial Court (learned Single Judge) had discussed the evidence and had come to the conclusion that the suit was liable to be decreed, even though alternate prayer for refund of advance amount in double to be returned as was also claimed by the relief.

5. The defendant-appellant preferred the first appeal before the High Court under section 96 CPC which has since been dismissed by the impugned order.

6. From a bare perusal of the judgment, we find that, after noting the respective submissions of the counsel for the parties, thereafter extracting some portion of the judgment of the Trial Court, the Division Bench, in a single paragraph relying upon a particular clause of the agreement to sell, has dismissed the appeal in limine on the first date of its listing without even issuing notice. This is precisely as to how the First Appeal should not be dealt with.

7. We are mindful of the fact that a First Appeal may be dismissed without notice to the respondent and without calling for records under Order XLI Rule 11 CPC. However, it is well settled that the scope of dismissal under the above provision is very narrow and is akin to the powers of Court to reject a plaint under Order VII Rule 11 CPC. Order XLI Rule 11 CPC is reproduced hereunder:

“Order XLI Rule 11: Power to dismiss appeal without sending notice to Lower Court.—

[(1) The Appellate Court after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day may dismiss the appeal].

(2) If on the day fixed or arty other day to which the hearing may be adjourned the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed.

(3) The dismissal of an appeal under this rule shall be notified to the Court from whose decree the appeal is preferred.

(4) Where an Appellate Court, not being the High Court, dismisses an appeal under sub-rule (1), it shall deliver a judgment, recording in brief its grounds for doing so, and a decree shall be drawn up in accordance with the judgment.]1”

8. First Appellate Court is the last Court which can appreciate the evidence on record and record findings of fact. As such a First Appeal normally should not be thrown out at the stage of Order XLI Rule 11 CPC just as a plaint normally