( 2026:HHC:5244 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 510 of 2006. Date of decision: 28.02.2026. Madan Sharma …..Appellant. Versus Bhupinder Singh Southa (deceased) through LRs Vinod and others ….Respondents. Coram The Hon’ble Mr. Justice Romesh Verma, Judge. Whether approved for reporting ?1 For the Appellant : Mr. R.K. Bawa, Senior Advocate with Mr. Ajay Kumar Sharma, Advocate. For the Respondents : Mr.Bhupinder Singh Kanwar, Advocate. Romesh Verma, Judge (Oral). The present appeal arises out of the judgment and decree as passed by the learned District Judge (Forest), Shimla, dated 19.08.2006, whereby, the appeal preferred by the present appellant was ordered to be dismissed and the judgment and decree as passed by the learned Sub Judge First Class, Chopal, in Civil Suit No.5-1 of 2003 dated 29.07.2023 was affirmed. 1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes 2 ( 2026:HHC:5244 ) 2. It is contended by learned Senior Counsel for the appellant that the judgment and decree as passed by the learned first Appellate Court is not in conformity with the requirement of Section 96 read with Order 41 Rule 31 of CPC. It has been contended that it is the duty of the first Appellate Court to appreciate the entire evidence and arrive at its own conclusion, for reasons assigned, either by affirmance or difference. 3. On perusal of the judgment and decree as passed by the learned first Appellate Court, it emanates that the learned District Judge has not adhered to the provisions of Section 96 read with Order 41 Rule 31 of CPC. 4. What would be the proper mode for disposal of first appeal has been succinctly dealt with by the Hon’ble Supreme Court in its judgment in C. Venkata Swamy versus H.N. Shivanna (dead) by legal representatives and another (2018) 1 SCC 604, wherein it was observed as under:- “10. The need to remand the case to the High Court has occasioned for the reason that the Single Judge dismissed the appeals very cursorily and without undertaking any appreciation of evidence, dealing with various issues arising in the case and discussing the arguments raised by the parties in support of their case. In other words, the disposal of the two first appeals could not be said to be in conformity with the 3 ( 2026:HHC:5244 ) requirements of Section 96 read with Order 41 Rule 31 of the Code. 11. It is a settled principle of law that a right to file first appeal against the decree under Section 96 of the Code is a valuable legal right of the litigant. The jurisdiction of the first Appellate Court while hearing the first appeal is very wide like that of the Trial Court and it is open to the appellant to attack all findings of fact or/and of law in first appeal. It is the duty of the first Appellate Court to appreciate the entire evidence and arrive at its own independent conclusion, for reasons assigned, either of affirmance or difference. 12. Similarly, the powers of the first Appellate Court while deciding the first appeal are indeed well defined by various judicial pronouncements of this Court and are, therefore, no more res integra. It is apposite to take note of the law on this issue. 13. As far back in 1969, the learned Judge V.R. Krishna Iyer, J (as His Lordship then was the judge of Kerala High Court) while deciding the first appeal under Section 96 ofthe Code in Kurian Chacko vs. Varkey Ouseph, 1969 AIR(Ker) 316, reminded the first Appellate Court of its duty to decide the first appeal. In his distinctive style of writing with subtle power of expression, the learned judge held as under: (SCC OnLine Ker paras 1-3) “1. The plaintiff, unsuccessful in two Courts, has come up here aggrieved by the dismissal of his suit which was one for declaration of title and recovery of possession. The defendant disputed the plaintiff's title to the property as also his possession and claimed both in himself. The learned Munsif, who tried the suit, recorded findings against the plaintiff both on title and possession. But, in appeal, the learned Subordinate Judge disposed of the whole matter glibly and briefly, in a few sentences. 4 ( 2026:HHC:5244 ) 2. An appellate court is the final Court of fact ordinarily and therefore a litigant is entitled to a full and fair and independent consideration of the evidence at the appellate stage. Anything less than this is unjust to him and I have no doubt that in the present case the learned Subordinate Judge has fallen far short of what is expected of him as an appellate Court. 3. Although there is furious contest between the counsel for the appellant and for the respondent, they appear to agree with me in this observation ....." (emphasis supplied) 14. This Court also in various cases reiterated the aforesaid principle and laid down the powers of the Appellate Court under Section 96 of the Code while deciding the first appeal. We consider it apposite to refer to some of the decisions. 15. In Santosh Hazari vs. Purushottam Tiwari (Deceased) by L.Rs., (2001) 3 SCC 179,this Court held as under ( SCC pp. Pages 188-189 para 15: "15....the appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it …." 16. The above view was followed by a three-Judge Bench decision of this Court in Madhukar & Ors. v. Sangram & Ors., (2001) 4 SCC 756, wherein it was reiterated that sitting as a Court of first appeal, it is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. 5 ( 2026:HHC:5244 ) 17. In H.K.N. Swami v. Irshad Basith, (2005) 10 SCC 243, this Court stated as under: (SCC p.244, para 3) "3. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title." 18. Again in Jagannath v. Arulappa & Anr., (2005) 12 SCC 303, while considering the scope of Section 96 of the Code, this Court observed as follows ( SCC p. 303, para 2): "2. A court of first appeal can reappreciate the entire evidence and come to a different conclusion …" 19. Again in B.V Nagesh & Anr. vs. H.V. Sreenivasa Murthy, (2010) 13 SCC 530, this Court taking note of all the earlier judgments of this Court reiterated the aforementioned principle with these words: (SCC pp.530-31, paras 3-5) "3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court shall state: a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. 4. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is 6 ( 2026:HHC:5244 ) therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179 at p. 188, para 15 and Madhukar v. Sangram, (2001) 4 SCC 756 at p. 758, para 5.) 5. In view of the above salutary principles, on going through the impugned judgment, we feel that the High Court has failed to discharge the obligation placed on it as a first appellate court. In our view, the judgment under appeal is cryptic and none of the relevant aspects have even been noticed. The appeal has been decided in an unsatisfactory manner. Our careful perusal of the judgment in the regular first appeal shows that it falls short of considerations which are expected from the court of first appeal. Accordingly, without going into the merits of the claim of both parties, we set aside the impugned judgment and decree of the High Court and remand the regular first appeal to the High Court for its fresh disposal in accordance with law." 20. The aforementioned cases were relied upon by this Court while reiterating the same principle in State Bank of India & Anr. vs. Emmsons International Ltd. & Anr., (2011) 12 SCC 174 and Union of India vs. K. V. Lakshman & Ors., (2016) 13 SCC 124.” 5. In light of the aforesaid exposition of law, I have no option, but to allow the present appeal and set aside the impugned judgment and decree as passed by the learned first appellate Court and remand the case to the Court of learned District Judge, Shimla, for deciding 7 ( 2026:HHC:5244 ) the appeal afresh on merits in accordance with law keeping in view the observations made (supra). 6. However, it is made clear that this Court has not made any observation on the merits of the case having formed an opinion to remand the case to the learned first appellate Court. Therefore, the learned first appellate Court shall proceed to decide the appeal uninfluenced by any of the observations in accordance with law. Since, the suit out of which the present appeal arises was filed as far back in the year 2003, it is requested that the learned first appellate Court shall decide the appeal as expeditiously as possible and in no event later than 30.07.2026. 7. The parties are directed to appear before the learned District Judge, Shimla, on 31.03.2026. 8. The appeal stands disposed of in the aforesaid terms. 9. Pending application, if any, also stands disposed of. ( Romesh Verma) 28th February, 2026. Judge (Ritu/krt)