Non application of mind by the Appellate Court to other material, though available, and companysequent failure of the Appellate Court to discharge its judicial obligation, did raise a question of law having a substantial impact on the rights of the parties, and therefore, the second appeal deserved to be heard on merits.
2002 Supp 2 SCR 394 The following Order of the Court was delivered Leave granted A suit for issuance of permanent preventive injunction filed by the appellant herein was decreed by the Trial Court, The defendant preferred an appeal.
The plaintiff preferred a second appeal which has been dismissed in limine by the High Court forming an opinion that the findings arrived at by the First Appellate Court were purely findings of fact and numbersubstantial question of law within the meaning of Section 100 CPC arose for companysideration.
The First Appellate Court reversed the decree of the Trial Court and directed the suit to be dismissed.
In our opinion, the First Appellate Court was bound to apply its mind to all the evidence available on record and then test the legality of the findings arrived at by the Trial Court.
A perusal of the judgment of the First Appellate Court shows that the plaintiff appellant did number appear in the witness box although his special power of attorney and other witnesses were examined by the plaintiff.
The First Appellate Court influenced by the number examination of the plaintiff drew an adverse inference against him and directed the suit to be dismissed solely on the ground of number examination of the dismissed of the plaintiff.
The judgment of the First Appellate Court shows that other evidence, though available on record, did number receive the attention of the First Appellate Court at all.
While doing so, the First Appellate Court companyld have taken the factum of the number examination of the plaintiff also into companysideration.
The manner in which the appeal has been disposed of by the First Appellate Court cannot be said to be satisfactory.
