AIR 2015 SUPREME COURT 1139 ::2015 AIR SCW 777 ::2015 (1) AKR 828 ::2015 (11) SCC 269 ::(2015) 2 All WC 1345

Supreme Court Of India

(From : Karnataka)

Hon'ble Judge(s): F. M. Ibrahim Kalifulla, Abhay Manohar Sapre , JJ

Civil P.C. (5 of 1908) , S.96, O.41 R.31— First appeal - Finding recorded by High Court without considering merit of claim of respective parties - No appreciation of evidence done - Decision of High Court liable to be set aside - Matter remanded. RFA No. 3052 of 2010, D/- 1-6-2012 (Kant), Reversed. In the instant case the High Court in first appeal against the decree in partition suit, did not deal with any of the submissions urged by the appellants and/or respondents nor it took note of the grounds taken by the appellants in grounds of appeal nor took note of cross objections filed by plaintiffs under O.41, R. 22 of the Code and nor made any attempt to appreciate the evidence adduced by the parties in the light of the settled legal principles and decided case laws applicable to the issues arising in the case with a view to find out as to whether the judgment of the trial Court can be sustained or not. Held, being the first appellate Court, it was, the duty of the High Court to decide the first appeal keeping in view the scope and powers conferred on it under S. 96 read with O. 41, R. 31 of the Code. 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 ....