In the case of Manjula vs. Shyamsundar [CIVIL APPEAL NO. 6744 of 2013], supreme court observed that an appellate court’s jurisdiction u/s 96 of cpc, involves a rehearing of appeal on questions of law as well as fact.
This appeal is directed against the judgment and decree in R.F.A. No. 468 of 2004 dated 07.09.2006 whereby the High Court of Karnataka has dismissed the appeal filed by the appellants.
The appellants were the plaintiffs in original suit no. 1/2002 on the file of the Principal Sessions Judge, Dharwad, and the respondents were the defendants.
The plaintiffs filed a petition u/s 278 of Indian Succession Act, 1925 praying for issuance of a letter of administration in respect of the Will dated 19.12.1976 executed by one Srinivas Gambhir.
Since the defendants challenged the execution of the Will, the said petition was registered as a suit. Srinivas Gambhir died on 24.12.1983.According to the plaintiffs, at the time of his death, he left the aforesaid Will in the custody of the scribe of the Will.
They have further contended that by the said Will, deceased-Srinivas Gambhir bequeathed his undivided share in the suit scheduled property in favour of the plaintiffs. On the basis of this Will, the plaintiffs claim title to the said property.
The defendants are the brother and sisters of Srinivas Gambhir. They have denied execution of the said Will in their written statement. They have also contended that Srinivas Gambhir was an idiot/lunatic in the care and custody of his mother-Indirabai and was incompetent to execute a Will.
The competency of Srinivas Gambhir to execute the Will has already been decided by a judgment and decree passed by the High Court in R.F.A. NO.582/1987.Trial court dismissed the suit in 2003.
The plaintiffs challenged the said judgment and decree before the High Court of Karnataka, dismissed the appeal, thereby confirming the judgment and decree of the trial court.SC observed, trial court had framed as many as six issues and appeal before the High Court involved questions of law and facts.
But the HC, without examination any of these aspects, dismissed the appeal by a cryptic order without advertise any of the contentions of parties and by not appreciating the oral evidence adduced by the parties.
Under sec 96 and O 41 R 31, mandates that the judgment of the appellate court shall state
(a) points for determination
(b) the decision thereon;
(c) the reasons for the decision;
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.
Thus, the appellate court has the jurisdiction to reverse or affirm the findings of the trial court.
The first appeal is a valuable right, and, at that stage, all questions of fact and law decided by the trial court are open for re-consideration. The judgment of the appellate court must, therefore, reflect conscious application of mind and must record the court’s findings, supported by reasons for its decision in respect of all the issues, along with the contentions put forth and pressed by the parties.
Needless to say, the first appellate court is required to comply with the requirements of Order 41 Rule 31 CPC and non-observance of these requirements lead to infirmity in the judgment.
The judgment and decree of the HC is set aside and matter is remanded to the HC for fresh disposal of the same in accordance with law.