NEMAI CHANDRA Vs. PRASANTA CHANDRA

JUDGEMENT

(1.) This is yet another case where contrary to the vision of the founding fathers, non-adherence to the principles governing the exercise of power by the first appellate Court has driven the parties to the highest Court. The principles entrenched in Order XLI Rule 31 of the Code of Civil Procedure, 1908, which has been the subject matter of catena of decisions of this Court, lay down the manner in which an appeal in a civil suit must be considered by the Appellate court. A further appeal to the High Court lies only on substantial questions of law. Therefore, the law contemplates that a party aggrieved by the decision of the trial Court gets full opportunity to have his grievance investigated by the first Appellate Court which is expected to reappreciate the evidence and consider the matter unless it be that it purports to invoke the power under Order XLI Rule 11.

(2.) The plaintiff in this case was wife of the uncle of the first defendant. Both the original plaintiff and the first defendant have passed away. The lis is at present being taken forward by their legal representatives.

(3.) Evidence was led by the parties. The plaintiff herself was examined as PW 1. She has undoubtedly deposed that the first defendant who was looking after her, after the death of her husband, impressed upon her for the need for a power of attorney and it is this which led her to execute the documents which she discovered later were actually gift deeds in favour of the defendant.