High Court is empowered to dismiss the first appeal at preliminary stage of hearing if it lacks merit

Karnataka High Court: In an appeal under Section 96 CPC, directed against the judgment and decree passed by the II Additional Senior Civil Judge and JMFC, Tumakuru, in O.S. No. 10/2014, dismissing the suit for partition and separate possession; and cancellation of documents, a two-Judge Bench comprising of Jayant Patel and S. Sujatha, JJ. held that a High Court is empowered to dismiss the first appeal at the preliminary stage of hearing if there is no merit in the appeal.

Plaintiff-appellants filed a suit for partition and separate possession against the defendants. Plaintiffs also claimed for cancellation of the relinquishment deed made by the plaintiffs in favor of the defendants relinquishing their right, title and interest of the joint family properties. The High Court held, that the evidence put forth by the defense proves that plaintiffs have executed the relinquishment deed, on their own will and volition. Thus, the joint family status of defendants and plaintiffs was severed and the relief of partition and separate possession needs to be rejected. As regards relief to cancel the relinquishment deed, the court held, that the plaintiffs failed to prove that it was an outcome of fraud, coercion and undue influence; and hence, it was also rejected. Learned counsel for the petitioners contended that the litigant have a right to be heard on facts and law in first appeal and the same cannot be disposed of in limine at the time of the admission.

The Court quoted and discussed Section 96 CPC along with Order 41 Rule 11 CPC. The High Court relied upon the judgment of the Division Bench of the same Court in Sri T.S. Channegowda v. Sri H. Thopiah, 2015 SCC OnLine Kar 8184 : ILR 2015 kar 2809, to hold that the object of providing a statutory appeal is to examine whether the trial court has erred in deciding the cases. It does not mean that in every case the appeal has to be admitted. The High Court also relied on the judgment of the Apex Court in Uttar Pradesh Avas Evam Vikas Parishad v. Sheo Narain Kushwaha, (2011) 6 SCC 456, to hold that the High Court is empowered to dismiss the first appeal at the preliminary stage of hearing if there is no merit in the appeal. The said dismissal should be supported by reasons while exercising powers under Order 41 Rule 11 CPC.

After considering all the documents and evidence produced by learned counsel for the appellants, the High Court held that the plaintiffs have miserably failed to establish their case. No error was found in the appreciation of evidence by the trial court. The High Court found no merit in the appeal and accordingly dismissed the appeal. [Smt. Lakshminarasamma v. Sri Lakshmana, Regular First Appeal No. 502/2017, decided on 21.07.2017]

 

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