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2009 Supreme(MP) 356
(SUPREME COURT)
Tarun Chatterjee and H.L. Dattu, JJ.
Nicholas V. Menezes v. Joseph M. Menezes and others
Civil Appeal No. 1874 of 2009; Decided on 25.3.2009.*
Headnote:Civil P.C., 1908 -- S. 96 -- first appeal -- should be disposed of appreciation of documentary and oral evidence, pleading and seasoning of trial Court disposal without such appreciation and without calling record not sustainable law.
It is well settled that while deciding a First Appeal, the High Court must consider the evidence on record, oral and documentary and also the questions of law raised before it and at the same time it was the duty of the Court to consider the reasons given by the trial Court against which the first appeal was filed and thereafter dispose of the same after passing a speaking and reasoned order in accordance with law. [Para 3
flfoy izfdz;k lafgrk] 1908 && /kkjk 96 && izFke vihy && nLrkosth rFkk ekSf[kd lk{;] vfHkopu rFkk fopkj.k U;k;y; ds rdZ dk foospu dj fuiVkbZ tkuk pkfg, && ,sls foospu ds fcuk rFkk vfHkys[k cqyk, fcuk fuiVkjk fd;k tkuk dk;e j[ks tkus ;ksX; ugha gSA
;g lqjf{kr gS fd izFke vihy fofuf‘pr djrs le;] mPp U;k;ky; dks vfHkys[k ij lk{;] ekSf[kd rFkk nLrkosth rFkk blds le{k mn~Hkwr fof/k ds iz‘uksa ij Hkh fopkj djuk pkfg, rFkk mlh le; fopkj.k U;k;ky; }kjk fn, x, dkj.kksa ij ftuds fo:) izFke vihy Qkby dh xbZ Fkh] fopkj fd;k tkuk U;k;ky; dk drZO; Fkk rFkk rRi‘pkr~ fof/k ds vuqlkj vk[;kid rFkk ldkj.k vkns‘k ikfjr djus ds Ik‘pkr~ mldk fuiVkjkA ¼iSjk 3
1. Leave granted.
2. In our view, this appeal can be disposed of on a very short point.
3. A First Appeal was filed by the appellant in the High Court of Judicature at Bombay, which was dismissed by a learned Single Judge of the High Court without calling for the records and proceedings and without appreciating the pleadings and evidence, oral and documentary, on record. It is well settled that while deciding a First Appeal, the High Court must consider the evidence on record, oral and documentary and also the questions of law raised before it and at the same time it was the duty of the Court to consider the reasons given by the trial Court against which the first appeal was filed and thereafter dispose of the same after passing a speaking and reasoned order in accordance with law. In the present case, having gone through the Judgment of the High Court, we find that this procedure was not adopted by the High Court. That being the position, we set aside the judgment of the High Court and send the case back to it for consideration of the appeal on merits.
4. We request the High Court to dispose of the appeal after remand within three months from the date of supply of a copy of this order to it positively. It is needless to say that the High Court shall now decide the same after giving reasons and after appreciating the records and the pleadings and evidence on record in accordance with law.
5. Accordingly, the impugned order is set aside and the appeal is allowed to the extent indicated above. There will be no order as to costs.
