# MALLURU MALLAPPA (D) THR. LRS v. KURUVATHAPPA & ORS

- **Citation:** [2020] 2 S.C.R. 789
- **Court:** Supreme Court of India
- **Decided:** 2020-02-12
- **Case number:** Civil Appeal No. 1485 of 2020
- **Bench:** S. Abdul Nazeer, Sanjiv Khanna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/malluru-mallappa-d-thr-lrs-v-kuruvathappa-ors-34232
- **Pages:** 9

## Headnote

Code of Civil Procedure, 1908 - ss.96, 100 and Or.XLI, r.31
- Appellant-plaintiff filed suit against respondents-defendants for
specific performance of agreement to sell - Defendant no.1 pleaded
that the suit was barred by limitation and that the plaintiff was not
ready and willing to perform his part of the contract - Suit dismissed
- Confirmed by High Court - Held: s.96 provides for filing of an
appeal from the decree passed by any court exercising original
jurisdiction to the court authorized to hear the appeals from the
decisions of such courts - In the instant case, the appeal from the
decree passed by the trial court lies to High Court - An appeal is a
continuation of the proceedings of the original court - Ordinarily,
the appellate jurisdiction involves re-hearing on law as well as on
fact and is invoked by an aggrieved person - First appeal is a
valuable right of the appellant wherein all questions of fact and
law decided by the trial court are open for re-consideration - A
first appeal u/s.96 is entirely different from a second appeal u/s.100
- s.100 expressly bars second appeal unless a question of law is
involved in a case and the question of law so involved is substantial
in nature - In the present case, issue relating to readiness and
willingness of the plaintiff to perform his part of the contract and
limitation were held against him and the suit was dismissed - Appeal
before High Court involved both disputed questions of law and
fact - Without examination of any of these aspects it dismissed the
appeal by a cryptic order - High Court failed to follow the provisions
of Or.XLI, r.31 while deciding the appeal - Judgment set aside -
Matter remanded to High Court for fresh disposal in accordance
with law - Limitation Act, 1963 - Article 54 of the Schedule.
Words & Expressions - 'appeal' - Meaning of - Held:
Expression 'appeal' has not been defined in CPC - It is a judicial
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examination of the decision by a higher court of the decision of a
subordinate court to rectify any possible error in the order under
appeal - Code of Civil Procedure, 1908 - s.96.
Partly allowing the appeal, the Court
HELD: 1.1 Section 96 of the CPC provides for filing of an
appeal from the decree passed by any court exercising original
jurisdiction to the court authorized to hear the appeals from the
decisions of such courts. In the instant case, the appeal from the
decree passed by the trial court lies to the High Court. The
expression 'appeal' has not been defined in the CPC. It is a judicial
examination of the decision by a higher court of the decision of a
subordinate court to rectify any possible error in the order under
appeal. An appeal is a continuation of the proceedings of the
original court. Ordinarily, the appellate jurisdiction involves a
re-hearing on law as well as on fact and is invoked by an aggrieved
person. The first appeal is a valuable right of the appellant and
therein all questions of fact and law decided by the trial court are
open for re-consideration. The judgment of the first appellate
court must display conscious application of mind and record
findings supported by reasons on all issues and contentions. A
first appeal under Section 96 of the CPC is entirely different from
a second appeal under Section 100. Section 100 expressly bars
second appeal unless a question of law is involved in a case and
the question of law so involved is substantial in nature. [Paras
11, 14 and 15][793-G-H; 794-A-B, F-H; 795-A-C]
1.2 The judgment of the first appellate court has to set out
points for determination, record the decision thereon and give
its own reasons. Even when the first appellate court affirms the
judgment of the trial court, it is required to comply with the
requirement of Order XLI Rule 31 and non-observance of this
requirement leads to infirmity in the judgment of the first appellate
court. The issue relating to readiness and willingness o

## Text

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MALLURU MALLAPPA (D) THR. LRS.
v.
KURUVATHAPPA & ORS.
(Civil Appeal No. 1485 of 2020)
FEBRUARY 12, 2020
[S. ABDUL NAZEER AND SANJIV KHANNA, JJ.]
Code of Civil Procedure, 1908 - ss.96, 100 and Or.XLI, r.31
- Appellant-plaintiff filed suit against respondents-defendants for
specific performance of agreement to sell - Defendant no.1 pleaded
that the suit was barred by limitation and that the plaintiff was not
ready and willing to perform his part of the contract - Suit dismissed
- Confirmed by High Court - Held: s.96 provides for filing of an
appeal from the decree passed by any court exercising original
jurisdiction to the court authorized to hear the appeals from the
decisions of such courts - In the instant case, the appeal from the
decree passed by the trial court lies to High Court - An appeal is a
continuation of the proceedings of the original court - Ordinarily,
the appellate jurisdiction involves re-hearing on law as well as on
fact and is invoked by an aggrieved person - First appeal is a
valuable right of the appellant wherein all questions of fact and
law decided by the trial court are open for re-consideration - A
first appeal u/s.96 is entirely different from a second appeal u/s.100
- s.100 expressly bars second appeal unless a question of law is
involved in a case and the question of law so involved is substantial
in nature - In the present case, issue relating to readiness and
willingness of the plaintiff to perform his part of the contract and
limitation were held against him and the suit was dismissed - Appeal
before High Court involved both disputed questions of law and
fact - Without examination of any of these aspects it dismissed the
appeal by a cryptic order - High Court failed to follow the provisions
of Or.XLI, r.31 while deciding the appeal - Judgment set aside -
Matter remanded to High Court for fresh disposal in accordance
with law - Limitation Act, 1963 - Article 54 of the Schedule.
Words & Expressions - 'appeal' - Meaning of - Held:
Expression 'appeal' has not been defined in CPC - It is a judicial
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examination of the decision by a higher court of the decision of a
subordinate court to rectify any possible error in the order under
appeal - Code of Civil Procedure, 1908 - s.96.
Partly allowing the appeal, the Court
HELD: 1.1 Section 96 of the CPC provides for filing of an
appeal from the decree passed by any court exercising original
jurisdiction to the court authorized to hear the appeals from the
decisions of such courts. In the instant case, the appeal from the
decree passed by the trial court lies to the High Court. The
expression 'appeal' has not been defined in the CPC. It is a judicial
examination of the decision by a higher court of the decision of a
subordinate court to rectify any possible error in the order under
appeal. An appeal is a continuation of the proceedings of the
original court. Ordinarily, the appellate jurisdiction involves a
re-hearing on law as well as on fact and is invoked by an aggrieved
person. The first appeal is a valuable right of the appellant and
therein all questions of fact and law decided by the trial court are
open for re-consideration. The judgment of the first appellate
court must display conscious application of mind and record
findings supported by reasons on all issues and contentions. A
first appeal under Section 96 of the CPC is entirely different from
a second appeal under Section 100. Section 100 expressly bars
second appeal unless a question of law is involved in a case and
the question of law so involved is substantial in nature. [Paras
11, 14 and 15][793-G-H; 794-A-B, F-H; 795-A-C]
1.2 The judgment of the first appellate court has to set out
points for determination, record the decision thereon and give
its own reasons. Even when the first appellate court affirms the
judgment of the trial court, it is required to comply with the
requirement of Order XLI Rule 31 and non-observance of this
requirement leads to infirmity in the judgment of the first appellate
court. The issue relating to readiness and willingness of the
plaintiff to perform his part of the contract and issue relating to
limitation were held against the plaintiff and the suit was
dismissed. The appeal before the High Court involved both
disputed questions of law and fact. The High Court without
examination of any of these aspects dismissed the appeal by a
cryptic order. The court below neither reappreciated the evidence
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of the parties, nor it passed a reasoned order. The High Court
has failed to follow the provisions of Order XLI Rule 31 of the
CPC while deciding the appeal. The judgment and decree of the
High Court is set aside and the matter is remanded to the High
Court for fresh disposal in accordance with law. [Paras 19-21]
[797-B-G]
Hari Shankar v. Rao Girdhari Lal Chowdhury AIR 1963
SC 698 : [1962] Suppl. SCR 933;
Shankar
Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat
(1969) 2 SCC 74 : [1970] 1 SCR 322; Vinod Kumar v.
Gangadhar (2015) 1 SCC 391 : [2014] 10 SCR 1050;
Shasidhar and Ors. v. Ashwani Uma Mathad & Anr.
(2015) 11 SCC 269 : [2015] 2 SCR 1- relied on.
Santosh Hazari v. Purushottam Tiwari (Deceased) By
Lrs. (2001) 3 SCC 179 : [2001] 1 SCR 948; Madhukar
and others v. Sangram and Others (2001) 4 SCC 756 :
[2001] 3 SCR 138; B. M. Narayana Gowda v.
Shanthamma (Dead) By LRs. and Another (2011) 15
SCC 476; H. K. N. Swami v. Irshad Basith (Dead) By
LRs. (2005) 10 SCC 243; M/s. Sri Raja Lakshmi Dyeing
Works v. Rangaswamy Chettiar (1980) 4 SCC 259 -
referred to.
Black's Law Dictionary (7th Edn.) - referred to.
Case Law reference
[1962] Suppl. SCR 933
relied on
Para 12
[1970] 1 SCR 322
relied on
Para 13
[2001] 1 SCR 948
referred to
Para 14
[2001] 3 SCR 138
referred to
Para 14
(2011) 15 SCC 476
referred to
Para 14
(2005) 10 SCC 243
referred to
Para 14
(1980) 4 SCC 259
referred to
Para 14
[2014] 10 SCR 1050
relied on
Para 17
[2015] 2 SCR 1
relied on
Para 18
MALLURU MALLAPPA (D) THR. LRS. v. KURUVATHAPPA
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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1485
of 2020.
From the Judgment and Order dated 09.02.2012 of the High Court
of Karnataka at Bangalore in Regular First Appeal No. 1731 of 2006
(SP).
S. N. Bhat, Adv. for the Appellants.
 The Judgment of the Court was delivered by
S. ABDUL NAZEER, J.
1. Delay condoned. Leave granted.
2. This is the plaintiff's appeal challenging the judgment and decree
in RFA No.1731 of 2006 dated 09.02.2012 passed by the High Court of
Karnataka at Bangalore, whereby the High Court has confirmed the
judgment and decree passed by the trial court in O.S. No. 32 of 2005
dated 09.06.2006.
3. The plaintiff filed the above suit against the respondents/
defendants for specific performance of the agreement to sell dated
30.3.2000. The agreement provided that the sale was to be executed
within three years from the date of the agreement, subject to the
defendants fulfilling certain obligations.
4. Defendant No.1 filed the written statement and the other
defendants filed a memo adopting the same as their written statement.
Defendant No.1 admitted the execution of the agreement to sell in favour
of the plaintiff. However, the defendant pleaded that the suit was barred
by limitation. It was further contended that plaintiff was not ready and
willing to perform his part of the contract.
5. Based upon the rival pleadings of the parties, the trial court
framed the following issues: -
"1. Whether the plaintiff proves that, the defendants 1 and 2 their
father have executed an agreement to sell on 30.3.2000 for
Rs.2,00,000/- in favour of the plaintiff after receiving
Rs.1,50,000/- as earnest money?
2. Whether the plaintiff proves that, he is always ready and willing
to perform his part of contract?
3. Whether the suit of the plaintiff is barred by limitation?
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4. What order or decree?"
6. The plaintiff got himself examined as PW-1 and Ex. P-1, P1(a)
to (c) were marked in his evidence. The defendant No.1 was examined
as DW1 and three other witnesses were examined as DW-2 to 4. On
appreciation of the evidence on record, the trial court held that the suit
was barred by time. It was also held that the plaintiff was not ready and
willing to perform his part of the contract. The suit was accordingly
dismissed.
7. As noticed above, the High Court has confirmed the said decree
of the trial court.
8. We have heard Shri S.N. Bhat, learned counsel for the appellant/
plaintiff. Though notice was served on the respondents, no one has entered
appearance on their behalf.
9. Shri Bhat, learned counsel, has made two-fold submissions.
Firstly, he submits that the High Court has passed a cryptic judgment
without reappreciating the evidence on record. It was argued that the
first appeal filed by the plaintiff under Section 96 of the Code of Civil
Procedure, 1908 (for short 'the CPC') was a continuation of the suit
and it was incumbent upon the High Court to reassess the entire evidence
on record. It was argued that the High Court as an appellate court has
failed to follow the guidelines provided under Order XLI Rule 31 of the
CPC while deciding the appeal. Secondly, it was argued that the agreement
to sell was dated 30.03.2000, providing for three years' time from the
date of the agreement to complete the execution of the sale deed. The
suit was filed on 28.01.2005 which was well within time. Referring to
Article 54 of the Schedule to the Limitation Act, 1963, (for short 'the
Limitation Act') it was submitted that when a date is fixed for performance
of the contract, the period of limitation for filing the suit is three years
from the date fixed for the performance. It was further argued that
there is no finding by the High Court as to the readiness and willingness
of the plaintiff to perform his part of the contract.
10. We have carefully considered the submission of the learned
counsel made at the Bar and perused the materials placed on record.
11. Section 96 of the CPC provides for filing of an appeal from
the decree passed by any court exercising original jurisdiction to the
court authorized to hear the appeals from the decisions of such courts.
In the instant case, the appeal from the decree passed by the trial court
MALLURU MALLAPPA (D) THR. LRS. v. KURUVATHAPPA
[S. ABDUL NAZEER, J.]
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lies to the High Court. The expression 'appeal' has not been defined in
the CPC. Black's Law Dictionary (7th Edn.) defines an appeal as "a
proceeding undertaken to have a decision reconsidered by bringing it to
a higher authority." It is a judicial examination of the decision by a
higher court of the decision of a subordinate court to rectify any possible
error in the order under appeal. The law provides the remedy of an
appeal because of the recognition that those manning the judicial tiers
too commit errors.
12. In Hari Shankar v. Rao Girdhari Lal Chowdhury1 it was
held that a right of appeal carries with it a right of re-hearing on law as
well as on fact, unless the statute conferring a right of appeal limits the
re-hearing in some way as has been done in second appeal arising under
the CPC.
13. In Shankar Ramchandra Abhyankar v. Krishnaji
Dattatreya Bapat2 it was held thus:
5. ........... In the well known work of Story on Constitution (of
United States), Vol. 2, Article 1761, it is stated that the essential
criterion of appellate jurisdiction is that it revises and corrects the
proceedings in a cause already instituted and does not create that
cause. The appellate jurisdiction may be exercised in a variety of
forms and, indeed, in any form in which the Legislature may choose
to prescribe. According to Article 1762 the most usual modes of
exercising appellate jurisdiction, at least those which are most
known in the United States, are by a writ of error, or by an appeal,
or by some process of removal of a suit from an inferior tribunal.
An appeal is a process of civil law origin and removes a cause,
entirely subjecting the fact as well as the law, to a review and a
retrial......."
14. It is a settled position of law that an appeal is a continuation of
the proceedings of the original court. Ordinarily, the appellate jurisdiction
involves a re-hearing on law as well as on fact and is invoked by an
aggrieved person. The first appeal is a valuable right of the appellant
and therein all questions of fact and law decided by the trial court are
open for re-consideration. Therefore, the first appellate court is required
to address itself to all the issues and decide the case by giving reasons.
The court of first appeal must record its findings only after dealing with
1 AIR 1963 SC 698
2 1969 (2) SCC 74
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all issues of law as well as fact and with the evidence, oral as well as
documentary, led by the parties. The judgment of the first appellate court
must display conscious application of mind and record findings supported
by reasons on all issues and contentions [see: Santosh Hazari v.
Purushottam Tiwari (Deceased) By Lrs.3, Madhukar and others
v. Sangram and Others4, B. M. Narayana Gowda v. Shanthamma
(Dead) By Lrs. and Another5, H. K. N. Swami v. Irshad Basith
(Dead) By Lrs.6 and M/s. Sri Raja Lakshmi Dyeing Works v.
Rangaswamy Chettiar7].
15. A first appeal under Section 96 of the CPC is entirely different
from a second appeal under Section 100. Section 100 expressly bars
second appeal unless a question of law is involved in a case and the
question of law so involved is substantial in nature.
16. Order XLI Rule 31 of the CPC provides the guidelines for the
appellate court to decide the matter. For ready reference Order XLI
Rule 31 of the CPC is as under: -
"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 it is pronounced be signed and dated by the
Judge or by the Judges concurring therein."
17. In Vinod Kumar v. Gangadhar8 this Court has reiterated the
principles to be borne in mind while disposing of a first appeal, as under:-
"15. Again in B.V. Nagesh v. H.V. Sreenivasa Murthy [(2010)
13 SCC 530 : (2010) 4 SCC (Civ) 808] , this Court taking note of
3 (2001) 3 SCC 179
4 (2001) 4 SCC 756
5 (2011) 15 SCC 476
6 (2005) 10 SCC 243
7 (1980) 4 SCC 259
8 (2015) 1 SCC 391
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all the earlier judgments of this Court reiterated the aforementioned
principle with these words: (SCC pp. 530-31, paras 3-5)
"3. How the regular first appeal is to be disposed of by the
appellate court/High Court has been considered by this Court
in various decisions. Order 41 CPC deals with appeals from
original decrees. Among the various rules, Rule 31 mandates
that the judgment of the appellate court 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.
4. 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 is therein
open for rehearing 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 first 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 :
(2001) 1 SCR 948] , SCC p. 188, para 15 and Madhukar v.
Sangram [(2001) 4 SCC 756] SCC p. 758, para 5.)"
18. In Shasidhar and Ors. v. Ashwani Uma Mathad and Anr.9,
it was held as under:-
"21. Being the first appellate court, it was, therefore, the duty of
the High Court to decide the first appeal keeping in view the scope
and powers conferred on it under Section 96 read with Order 41
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Rule 31 of the Code mentioned above. It was unfortunately not
done, thereby, causing prejudice to the appellants whose valuable
right to prosecute the first appeal on facts and law was adversely
affected which, in turn, deprived them of a hearing in the appeal
in accordance with law."
19. It is clear from the above provisions and the decisions of this
Court that the judgment of the first appellate court has to set out points
for determination, record the decision thereon and give its own reasons.
Even when the first appellate court affirms the judgment of the trial
court, it is required to comply with the requirement of Order XLI Rule
31 and non-observance of this requirement leads to infirmity in the
judgment of the first appellate court. No doubt, when the 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 a general agreement with the reasons given by the trial court would
ordinarily suffice.
20. Keeping in mind the above principles, let us examine the present
case. As stated above, the issue relating to readiness and willingness of
the plaintiff to perform his part of the contract and issue relating to
limitation were held against the plaintiff and the suit was accordingly
dismissed. The appeal before the High Court involved both disputed
questions of law and fact. The High Court without examination of any
of these aspects has dismissed the appeal by a cryptic order. The court
below has neither reappreciated the evidence of the parties, nor it has
passed a reasoned order. The High Court has failed to follow the provisions
of Order XLI Rule 31 of the CPC while deciding the appeal. Mr. Bhat
has argued that the suit was well within time under Article 54 of the
Schedule to the Limitation Act. Even this question has not been examined
in its proper perspective.
21. In the result, the appeal succeeds and is accordingly allowed
in part. The judgment and decree of the High Court in RFA No.1731 of
2006 dated 09.02.2012, is set aside and the matter is remanded to the
High Court for fresh disposal in accordance with law.
22. All the contentions of the parties are left open. There will be
no order as to costs.
Divya Pandey
Appeal partly allowed and remanded to High Court.
MALLURU MALLAPPA (D) THR. LRS. v. KURUVATHAPPA
[S. ABDUL NAZEER, J.]