While Exercising Power U/S 96 CPC, High Court Can Consider Issues Both On Facts And Law By Itself Or Call For Such Finding From Trial Court: SC

A bench of Justice M.M. Sundresh and Justice S.V.N. Bhatti held, “…we are of the view that the High Court ought not to have set aside the judgment and decree despite finding that the trial Court did not venture into the issues framed, other than the one pertaining to the limitation. It is well open to the First Appellate Court while exercising power under Section 96 of the Code of Civil Procedure to act as the final Court of fact and law. An appeal is the continuation of the proceedings. In such view of the matter, it is well open to the High Court to consider the issues both on facts and law either by itself or at best call for such finding from the trial Court”.

Senior Advocate V. Chitambaresh appeared for the petitioner and AOR K. Parameshwar appeared for the respondent.

Further, the bench in the Special Leave Petition without saying anything on the discretion to be exercised by the Kerala High Court said that the impugned order deserves to be set aside as it is for the High Court to decide all the issues by rendering findings on it, while deciding the appeal on merits.

In the present matter, the impugned judgment was challenged on the ground that having found that the trial Court has not answered the issues of fact, the judgment and decree of the trial Court could not have been set aside by remanding it back for fresh consideration.

In the matter, the appellant while referring to Order XLI Rules 23 and 33, Code of Civil Procedure submitted that the First Appellate Court is duty bound to call for the findings from the trial Court in the event of its inability to decide an issue of fact.

Accordingly, it was further argued that there was no need for setting aside the judgment and decree of the trial Court and remand it thereafter.

However, the respondent had submitted that the trial Court dismissed the suit only on the question of limitation without noticing the fact that the respondents were challenging the sale deed which was executed by defendant No. 1.

Resultantly, the Supreme Court remitted the matter back to the High Court to decide by taking note of all issues raised before it. Additionally, while considering the fact that the appeal was of the year 2003 and the civil suit was filed way back in the year 1999, the bench requested the High Court to dispose of the appeal within a period of one year from the date of receipt of the copy of the order.

Appearances:

Petitioner: Senior Advocate V. Chitambaresh, AOR Jogy Scaria, Advocates Beena Victor, C. Govind Venugopal, Keerthipriyan E, M. Priya, Ashwani Soni

Respondent: AOR K. Parameshwar, Advocates Arti Gupta, Kanti, Chinmay Kalgaonkar, Raji Gururaj

Cause Title: Saseendran & Anr. v. K.M. Cherian (Died) Through Legal Heir & Ors.