BANSHIDHAR Vs. DAYA SHANKAR

JUDGEMENT

(1.) THE appellant Is taking exception to the judgments and decrees passed in First Appeals No. 173 and 174 of 1998 by which the learned Single Judge of this court dismissed both the appeals by passing the order which needs to be quoted for the purpose of better unfolding of the matter -

(2.) SHRI V.M. Rege counsel appearing for the appellant in both the appeals submitted that the Single Bench of this High Court being the last court of facts is obliged to pass the judgment and order giving good cogent reasoning for the purpose of justifying the findings to be recorded by it and failure in doing it results in miscarriage of justice and frustrates the cause of appellants. He submitted that in view of the correct reading of Order 41R.11(4) of the Code of Civil Procedure, 1973 (hereinafter referred to as the Code) and understanding the spirit behind it, both the LP. As deserves to be allowed and the judgments and the decrees assailed need to be set -aside. While substantiating his submissions on this point, he made reference to Clause 10 of the Letters Patent by which the Nagpur High Court was created. He submitted further that though Letter Patent is an intra court appeal that does not mean that this court Is without any jurisdiction and power to have the reappraisal of the facts and the resultant controversy involved. He submitted that in view of that also the impugned judgment and decree needs to be set -aside and the appeals need to be allowed. In the alternative he submitted that if this court is pleased to do so the matter can be remanded to the learned Single Bench for the purpose of hearing it on merit and for requesting the first appellate Court to pass a judgment and decree after taking into consideration entire facts, legal principle applicable to the controversy involved and appraisal of oral documentary evidence and then record its reasoned finding on all issues so framed.

(3.) ON this point Shri Sharma submitted that the provisions of Order 41R.11 (4) of the Code are not applicable to the High Court and, therefore, the High Court is not expected to provide elaborate reasoning for the purpose of justifying its conclusion and resulting judgment and decree passed by it. He submitted that the objections raised on behalf of the appellants need to be dismissed and the LPA's need to be heard on merit completely and fully. We find it necessary to deal with this first aspect and, therefore, it is being adjudicated fully for the purpose of resolving the controversy and putting the debate to rest.