Case Note & Summary
The case involves two second appeals arising from a property dispute between brothers. The appellants (Ulhas Shankar Barde and Urmila Ulhas Barde) and the respondents (Harischandra Shankar Barde and Jaya Harischandra Barde) are parties in cross-appeals against the same judgment dated 18.11.2008 passed by the learned District Judge-1, Panaji in Regular Civil Appeal No. 80/07. The trial court had dismissed the suit for permanent and mandatory injunction filed by the original plaintiffs (respondents in SA 61/2009). The First Appellate Court dismissed the appeal, leading to both parties filing second appeals. The High Court admitted the appeals on two substantial questions of law: (a) whether the finding on limitation had attained finality and thus the suit stood dismissed, vitiating the appellate order; and (b) whether the First Appellate Court could dismiss the suit for injunction without discussing the evidence on record. After hearing both sides, the court found that the appellate court had not properly considered the limitation issue and had not discussed the evidence. Consequently, the High Court set aside the impugned judgment and remanded the matter to the First Appellate Court for fresh disposal in accordance with law, directing the appellate court to consider all aspects including the limitation issue and to discuss the evidence on record.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - The court admitted the appeal on substantial questions of law regarding the finality of the limitation finding and the appellate court's failure to discuss evidence. Held that the appellate court must examine all aspects and cannot ignore a finding that has attained finality. (Paras 3-4)
B) Limitation - Finality of Finding - Where the finding on limitation has attained finality due to non-reversal in appeal, the suit stands dismissed. The appellate court's order is vitiated for not examining this aspect. (Para 3)
C) Injunction - Permanent and Mandatory Injunction - Appellate Court's Duty - The First Appellate Court cannot dismiss the suit for injunction without discussing the evidence on record and without appreciating the evidence. Held that the appellate court must independently assess the evidence. (Para 3)
Issue of Consideration
Whether the First Appellate Court erred in dismissing the suit for permanent and mandatory injunction without discussing the evidence on record and without considering the finality of the finding on limitation.
Final Decision
Both second appeals are allowed. The impugned judgment dated 18.11.2008 passed by the learned District Judge-1, Panaji in Regular Civil Appeal No. 80/07 is set aside. The matter is remanded to the First Appellate Court for fresh disposal in accordance with law. The appellate court shall consider all aspects including the limitation issue and discuss the evidence on record. No order as to costs.
Law Points
- Limitation
- Finality of findings
- Appellate court's duty to discuss evidence
- Substantial question of law
- Remand
Case Details
2010 LawText (BOM) (07) 126
Second Appeal No. 61 of 2009 with Second Appeal No. 62 of 2009
Mr. Sudin Usgaonkar with Mr. A. Borkar for Appellants (in SA 61/2009); Mr. S. D. Lotlikar, Senior Advocate with Mr. P. Lotlikar for Respondents (in SA 61/2009); Mr. S. D. Lotlikar, Senior Advocate with Mr. P. Lotlikar for Appellants (in SA 62/2009); Mr. Sudin Usgaonkar with Mr. A. Borkar for Respondents (in SA 62/2009)
Shri Ulhas Shankar Barde and Smt. Urmila Ulhas Barde (in SA 61/2009); Shri Harischandra Shankar Barde and Smt. Jaya Harischandra Barde (in SA 62/2009)
Shri Harischandra Shankar Barde and Smt. Jaya Harischandra Barde (in SA 61/2009); Shri Ulhas Shankar Barde and Smt. Urmila Ulhas Barde (in SA 62/2009)
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Nature of Litigation
Civil second appeals against judgment in Regular Civil Appeal No. 80/07 concerning a suit for permanent and mandatory injunction.
Remedy Sought
The appellants in both appeals sought to set aside the impugned judgment of the First Appellate Court and restore the trial court's decree or remand the matter.
Filing Reason
The First Appellate Court dismissed the appeal without discussing the evidence on record and without considering the finality of the finding on limitation.
Previous Decisions
The trial court dismissed the suit for permanent and mandatory injunction. The First Appellate Court dismissed the appeal. Both parties filed second appeals.
Issues
Whether the finding on limitation has attained finality and the suit stands dismissed, vitiating the appellate order.
Whether the First Appellate Court could dismiss the suit for injunction without discussing the evidence on record.
Submissions/Arguments
The learned Counsel for the Appellants argued that the finding on limitation had attained finality and the appellate court failed to consider this.
The learned Counsel for the Respondents argued in support of the impugned judgment.
Ratio Decidendi
The First Appellate Court must independently discuss the evidence on record and cannot ignore a finding on limitation that has attained finality. Failure to do so vitiates the judgment and warrants remand.
Judgment Excerpts
Admit, on the following substantial questions of law : (a) As the finding on the plea of limitation has attained finality having been maintained on account of non-reversal in appeal, the suit stands dismissed. Therefore, the entire order of the Appellate Court stands vitiated for not having examined this aspect at all ? (b) Whether the First Appellate Court could have proceeded to dismiss the Suit of the Appellants in respect of the prayer for permanent injunction and mandatory injunction, without discussing the evidence on record by concurring with the conclusion drawn by the Trial Court and that too, without appreciating the evidence on record ?
Procedural History
The trial court dismissed the suit for permanent and mandatory injunction. The First Appellate Court dismissed the appeal. Both parties filed second appeals which were admitted on substantial questions of law and heard finally.
