1. Heard Sri Ashish Kumar Singh, learned counsel for the defendant-appellant and Sri Raj Kumar Kesari, learned counsel for the plaintiff-respondent.
2. Briefly stated facts of the present case are that the plaintiff-respondent filed O.S. No.166 of 2006 ( Jagdeep Singh Vs. Ram Karan) for recovery and decree of Rs.3,77,900/- given by him to the defendant-appellant. The suit was dismissed by the Court of Civil Judge (J.D.) -I, Hapur.
3. Aggrieved with this judgment the plaintiff-respondent filed a Civil Appeal No.150 of 2017 (Computer registration No.1134 of 2017) (Jagdeep Singh Vs. Ram Karan) which has been allowed by the impugned judgment dated 17.7.2018, passed by the Court of Additional District and Sessions Judge/Fast Track Court at Hapur and the suit has been decreed. The judgment of the trial court passed in the O.S. No.166 of 2006 was set aside. Aggrieved with the judgment of the appellate court the defendant-appellant has filed the present second appeal.
4. Learned counsel for the defendant-appellant submits as under:
(i) The trial court recorded a finding that the alleged oral agreement to sale of the agricultural land of Village - Shiv Nagri was not enforceable in view of the provisions of Section 17 of the Registration Act but the appellate court has completely ignored this finding and without setting aside it, allowed the appeal of the plaintiff-respondent.
(ii) While deciding the appeal the appellate court below has not framed any point for determination which was a mandatory requirement under Order XLI Rule 31 C.P.C., therefore, the impugned judgment of the appellate court below deserves to be set aside. Reliance in this regard is placed upon the judgment of the Hon'ble Supreme Court in Laliteshwar Prasad Singh & Ors Vs. S.P. Srivastava (D) Thr. Lrs. 2017(2) SCC 415 (para 11, 12 & 13).
(iii) Plaintiff-respondent could not establish his own case. In view of the provisions of Section 101 of the Evidence Act, the claim of the plaintiff-respondent could not have been allowed inasmuch as the plaintiff-respondent has failed to prove the existence of facts which he asserted.
5. Sri Raj Kumar Kesari, learned counsel for the plaintiff-respondent submits as under:
(i) The plaintiff-respondent filed the suit for recovery of Rs.3,77,900/- which he had given to the defendant-respondent by a bearer Cheque No.0807509, dated 4.8.2003, of Bank of India, Lalpur Branch from his account No.651 which was encashed by the defendant-appellant on the same day and out of which he deposited Rs. 2 lakhs in his Bank account No.843 in the same Bank and paid Rs.1,10,000/- to the Collection Amin, Hapur, and kept the remaining money with him.
(ii) The Trial Court went completely wrong in dismissing the suit on irrelevant grounds of execution of registered agreement with respect to land of Village - Lalpur.
(iii) The appellate court has lawfully allowed the appeal after considering the facts and evidences on record and the submissions made by both the sides.
(iv) The judgment in the case of Laliteshwar Prasad Singh (supra) relied by learned counsel for the defendant-appellant does not support his own case which is evident from paragraphs 11 and 12 of the said judgment.
6. I have carefully considered the submissions of learned counsel for the parties and with their consent this Second Appeal is being finally heard at the admission stage.
7. Undisputedly, the O.S. No.166 of 2006 was filed by the plaintiff-respondent for refund of the amount with interest, paid by the plaintiff-respondent to the defendant-appellant. The defendant-appellant executed a registered agreement to sell on 4.8.2003 in favour of the plaintiff-respondent with respect to his agricultural land being Khasra No.61M, Area 0.672 Hectare of Village - Lalpur, Pargana and Tehsil - Hapur, District - Ghaziabad for Rs.2,88,000/- and out of which he received Rs.2,66,000/- before the Registrar. On the same day the defendant-appellant received a bearer cheque No.0807509, dated 4.8.2003 of Bank of India, Lalpur Branch, Pargana - Hapur, for Rs.3,77,900/- and encahsed it on the same day. According to the plaintiff-respondent this amount was paid by him to the defendant-appellant as advance for purchase of certain land of Village - Shiv Nagari under oral agreement with the defendant-appellant. In paragraphs 8 and 9 of the plaint the plaintiff-respondent has made specific averments stating facts with regard to the aforesaid bearer Cheque. In paragraph 8 of the written statement the defendant-appellant admitted that he received the aforesaid bearer Cheque of Rs.3,77,900/- from the plaintiff-respondent and after encashing it from the Bank of India, Branch - Lalpur, Tehsil - Hapur, District - Ghaziabad, he kept Rs.2 lakhs with him and the balance was kept by witness Sri Niwas Sharma. He also admitted that the aforesaid bearer Cheque was given by the plaintiff-respondent from his Bank Account No.651. The defendant-appellant also admitted that out of Cheque amount encashed by him he deposited Rs.2 lakhs in his Bank Account No.843 in the same Bank and Branch. Thus, issuance of the aforesaid bearer Cheque by the plaintiff-respondent to the defendant-appellant and encashment thereof by the defendant-appellant is admitted to the defendant-appellant as evident from the averments made in paragraph 8 of the written statement.
8. In the impugned judgment the appellate court has recorded a clear finding of fact that the defendant-appellant has not denied in his written statement the receipt of the aforesaid bearer Cheque No.0807509 dated 4.8.2003 of Rs.3,77,900/- and his signature on the counter foil of the Cheque. The encashment of the aforesaid Cheque is admitted. Before the appellate Court below the defendant-appellant specifically submitted that out of the amount of the aforesaid bearer Cheque of Rs.3,77,900/- he received only Rs.2 lakhs and the balance amount was kept by the witness Sri Niwas Sharma. This finding is recorded at internal page nos.14 and 15 of the impugned judgment of the appellate Court below.
9. Thus, from the own submissions and the stand taken by the defendant-appellant the receipt of Cheque of Rs.3,77,900/- was undisputed. The evidences were also led by the plaintiff-respondent that out of the aforesaid bearer Cheque amount of Rs.3,77,900/-, the defendant-appellant deposited a sum of Rs.2 lakhs in his Bank account No.843 of Bank of India, Lalpur Branch on the same day i.e. on 4.8.2003 and paid a sum of Rs.1,10,000/- to the Collection Amin which was deposited by the Collection Amin by Challan No.38 dated 5.8.2003 against the loan taken from Dena Bank. The trial court had dismissed the suit merely on the ground that the oral agreement pursuant to which the aforesaid bearer Cheque was given, was not enforceable. The trial court completely ignored the fact that the suit was filed for recovery of Rs.3,77,900/- given by the plaintiff-respondent to the defendant-appellant. The receipt of the Cheque by the defendant-appellant from the plaintiff-respondent was admitted by the defendant-appellant and it was also proved by the plaintiff-respondent as briefly discussed above. The findings recorded by the appellate court below are findings of fact based on consideration of relevant evidences on record and as such it can not be interfered with. No perversity could be pointed out by the learned counsel for the defendant-appellant in the findings of fact recorded by the appellate court below.
10. So far as the reliance placed by learned counsel for the defendant-appellant upon the judgment of Hon'ble Supreme Court in the case of Laliteshwar Prasad Singh (supra) is concerned, suffice to observe that it does not support the case of the defendant-appellant on the facts of the present case. Paragraph No. 12 of the judgment of Hon'ble Supreme Court in the case of Laliteshwar Prasad Singh (supra) is reproduced below:
"12. As per Order XLI Rule 31 CPC, the judgment of the first appellate court must explicitly set out the points for determination, record its reasons thereon and to give its reasonings based on evidence. Order XLI Rule 31 CPC reads as under:
"Order XLI Rule 31: Contents, date and signature of judgment. - The judgment of the Appellate Court shall be in writing and shall state -
a. the points for determination;
b. the decision thereon;
c. the reasons for the decision; and d. where the decree appealed from is reversed or varied, the relief to which the appellant is entitled;
and shall at the time that it is propounded be signed and dated by the Judge or by the Judges concurring therein."
It is well settled that the first appellate court shall state the points for determination, the decision thereon and the reasons for decision. However, it is equally well settled that mere omission to frame point/points for determination does not vitiate the judgment of the first appellate court provided that the first appellate court records its reasons based on evidence adduced by both the parties."
(Emphasis supplied by me)
11. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. An appellate court is the final courts of fact. The judgment of the first appellate court must, therefore, reflect Court's application of mind and findings supported by reasons. The law relating to powers and duties of the first appellate court in passing a judgment is reflected in Order XLI Rule 31 of the Code of Civil Procedure which provides that the judgment of the appellate court shall be in writing and shall state (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled; and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein. By judicial pronouncement it has been settled by Hon'ble Supreme Court that the first appellate court shall state the points for determination, the decision thereon and the reasons for decision but mere omission to frame point/points for determination does not vitiate the judgment of the first appellate court provided that the first appellate court records its reasons based on evidences adduced by the parties. Thus, the law requires that the judgment of the appellate court must 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. While reversing a finding of fact the appellate court must come into close quarters with the reasons assigned by the trial court and then assign his own reasons for arriving at a different finding. When appellate court agrees with the views of the trial court on evidence, it need not restate effect of evidence or reiterate reasons given by trial court; expression of general agreement with the reasons given by trial court would ordinarily be sufficient. It is only when the appellate court reverses the findings of the trial court, it must record the findings in clear terms explaining how the reasoning of the trial court is erroneous. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it. These principles of law have been well settled by the Hon'ble Supreme Court in various judgments including Vinod Kumar v. Gangadhar 2015 (1) SCC 391, Santosh Hazari v. Purushottam Tiwari 2001 (3) SCC 179 (para 15), H.K.N. Swami v. Irshad Basith 2005 (10) SCC 243 (para 3), Jagannath v. Arulappa 2005 (12) SCC 303 (para 2), B.V. Nagesh v. H.V. Sreenivasa Murthy 2010 (13) SCC 530, Madhukar v. Sangram 2001 (4) SCC 756, Laliteshwar Prasad Singh & Ors Vs. S.P. Srivastava (D) Thr. Lrs. 2017(2) SCC 415 (para 12, 13 & 14). In Madina Begum Vs. Shiv Murti Prasad Pandey 2016 (15) SCC 322 (paras 24 and 25) Hon'ble Supreme Court considered the question "whether the High Court was right in merely deciding the issue of limitation in a first appeal filed under Section 96 of the Code of Civil Procedure without going into the merits of the case" and held that deciding only the issue of limitation and not considering the other issues in appeal, is impermissible.
12. In the present set of facts as discussed in paragraphs 7, 8, and 9 above, I find that in the impugned judgment the First Appellate Court has considered the points pressed before it by the parties and recorded reasons in detail which are based on consideration of evidences on record. The findings recorded by the First Appellate Court are the findings of fact based on consideration of relevant evidences. No perversity in the finding could be pointed out by the learned counsel for the appellants.
13. In view of the above discussion, I find that no substantial question of law is involved in the present appeal. Consequently, the appeal is dismissed.
Order Date :- 31.10.2018/vkg