The High Court summarily rejected a first appeal under Section 96 and Order 41 Rule 11 CPC as devoid of merit, upholding the trial court's finding of non-maintainability due to lack of proof of the appellant's insanity when the suit was instituted.
The appeal was summarily rejected and dismissed without requiring the record to be called.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Civil First Appeal No. 369/2017
Chain Shanker Son Of Shri Khem Raj, By Caste Brahaman, Resident Of Village Badgaon, Tehsil- Girwa, District Udaipur. Through - Next Friend Manoharlal Son Of Shri Chain Shankar, By Caste Brahman, Aged About 34 Years, Resident Of Village Badgaon, Tehsil Girwa, District Udaipur.
----Appellant
----Respondents
For Appellant(s) : Mr. A.K. Acharya
HON'BLE MR. JUSTICE P.K. LOHRA
Judgment
05/10/2018
Appellant-plaintiff has preferred this first appeal under Section 96 CPC to challenge order dated 12.04.2017 passed by District Judge, Udaipur (for short, ‘learned trial Court’), whereby learned trial Court, after considering application of the respondent-defendants under Order 32 Rule 15 CPC has recorded its definite finding that the suit instituted by appellant through his next friend is not maintainable.
Learned trial Court, while passing the impugned order, has considered threadbare the provision under Order 32 Rule 15 CPC,
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and found that appellant-Chain Shanker has not been able to prima facie show that he was of unsound or insane on the crucial day when the suit was instituted by him through his next friend.
Learned trial Court has also objectively examined the evidence tendered on behalf of appellant to prove his insanity at the time of filing of the suit inasmuch as all the three Doctors produced in support thereof clearly and unequivocally testified that appellant was not treated by them anterior to 1982-83, i.e., on the day when suit was filed.
The learned trial Court, upon considering statements of three doctors, concluded that requisite proof about insanity of the appellant/plaintiff on the date of filing suit is not available and consequently while allowing application of the respondent/defendants found the suit not maintainable.
In these circumstances, in my considered opinion, learned trial Court has not committed any error in accepting the application of respondent-defendants under Order 32 Rule 15 CPC and non-suiting the appellant.
While it is true that normally, in first appeal, Court is required to requisition the record, but if the non-maintainability of suit itself rightly adjudicated by the learned trial Court, then obviously the instant appeal being bereft of any merit, it is not at all necessary to call for the record. The instant one is a fit case wherein Order 41 Rule 11 CPC can be invoked for rejecting the appeal at the admission stage without sending notice to lower Court.
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My aforesaid view is fortified by a decision of Supreme Court in the matter of U.P. Avas Evam Vikas Parishad Vs. Sheo Narain Kushwaha & Ors. [(2011) 6 SCC 456], wherein the Hon'ble Apex Court while interpreting the amended Rule 11(1) of Order 41 CPC, has held:
It is evident from sub-rule (1) that an appellate court can dismiss an appeal after a preliminary hearing without calling for the records of the trial court and without issuing notice to the respondent, if it is satisfied that the appeal has no merit. Sub-rule (1) does not however state that such dismissal can be without assigning any reasons.
Unless the order is reasoned, there will be no way of knowing whether the appellate court has examined the appeal before deciding that it did not deserve admission. As a limited right to appeal to the Supreme Court is available against the appellate judgments of the High Court, unless there are reasons in the order of dismissal, it will not be possible for the Supreme Court to examine whether the High Court has rightly rejected the appeal. The appellant who has filed the first appeal in pursuance of a statutory right to file such appeal, paying necessary court fee, can legitimately expect reappreciation of the evidence and redetermination of the questions raised, unless the statute providing for the appeal provides otherwise.”
It is also observed here that impugned order passed by the learned trial Court is a detailed order discussing the entire evidence and same is also in consonance and conformity with the
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intent of Legislature under Order 32 Rule 15 CPC. Thus, the appeal being devoid any force, merits rejection summarily. Resultantly, the appeal fails and same is hereby rejected.
(P.K. LOHRA),J
Bharti/5
2 issues framed by the court
Whether an appeal under Order 41 Rule 11 CPC can be rejected at the admission stage without calling for records if it is devoid of merit.
Whether the trial court erred in finding the suit non-maintainable under Order 32 Rule 15 CPC due to lack of proof of insanity at the time of filing.
Colour shows how this judgement treated each authority
U.P. Avas Evam Vikas Parishad Vs. Sheo Narain Kushwaha & Ors.Relied on¶24
U.P. Avas Evam Vikas Parishad Vs. Sheo Narain Kushwaha & Ors. [(2011) 6 SCC 456] · Who else cites this
3 provisions across 1 enactments
Chain Shanker
Narayanlal
Deu Bai
P.K. LOHRA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
