1. This is a defendants' appeal which arises out of a suit brought by the plaintiff for partition and separate possession of a half share in the suit property. Plaintiff and defendant 1 are sisters and defendant 2 is the husband of defendant 1. The case for the plaintiff was that she became entitled to a half share in the suit property under the gift deed Exhibit 43 executed by her father in her favour and in favour of the defendant 1. The suit was resisted both on the ground that the gift was not acted upon and also on the ground that since the condition subject to which it was made was not fulfilled it was revoked. There was also a plea of adverse possession and relinquishment.
2. The important questions which arose from those pleadings were presented by as many as seven issues which were formulated by the court of first instance. The first issue covered the question whether the gift deed did not come into operation; the second related to the question whether the plaintiff relinquished her claim in favour of defendant 1; the third issue related to adverse possession; the fourth issue was whether defendant 2 was the tenant of defendant 1 and her father and the fifth was whether that lease was binding on the plaintiffs: and the other issues were the general issues,
3. On all these issues, the Munisiff recorded findings in favour of the plaintiff, and there was an appeal by defendants 1 and 2 to the Civil Judge who summarily dismissed the appeal under Rule 11 of Order 41 of the Code of Civil Procedurewithout even sending for the record. So the defendants appeal.
4. Mr. S.G. Bhat appearing for the defendants made the complaint that the Civil Judge should not have been too much Of a hurry to dispose of the appeal which raised so many complicated questions of law and fact without even a perusal of the record. I think that this complaint is reasonable.
5. The serious question of fact presented by the appeal was whether the gift deed in favour of the plaintiff was not acted upon. Although there was no issue with respect to revocation there was a discussion of that matter by the Munsiff, probably for the reason that the issue concerning relinquishment also involved the plea of revocation.
6. With respect to both these questions, both parties adduced evidence which was discussed by the Munsiff and the findings of fact recorded by the Munsiff on those matters were assailed before the Civil Judge in the memorandum of appeal produced before him.
7. Although Rule 11 of Order 41 of [the Code of Civil Procedure authorises the appellate Court to dispense with a requisition for the record, such summary disposal even without the assistance of record is permissible only in a case in which the questions arising for adjudication in the appeal are such that a perusal of the evidence produced by the parties is unnecessary to assist such disposal. So it may be possible for an appellate Court to desist from sending for the record if the question involved is a pure question of law, and the view taken by the Court of first instance is so unexceptionable that it would be hardly necessary either to send for the record or to notify the respondent. Similarly a disposal without the record may also be possible where the facts are not in dispute or where the correctness of the conclusions on a question of fact reached by the Court of first instance is not assailed.
8. But when a finding on a question of fact is impeached it is the plain duty of the first appellate Court, whose finding on a pure question of fact is normally impervious to criticism in second appeal, to send for the record, unless the effect of the evidence stated in the judgment under appeal is undisputed or appears irrefutable from materials such as may be produced by the appellant
9. And when an appeal presents a serious controversy on facts, its summary disposal without notice to the respondent Is a misuse of Rule 11 of Order XLI of the Code of Civil Procedure.
10. In the present case the question which the Civil Judge had to decide in appeal was whether the gift deed was or was not acted upon by the parties. Inregard to that question, the Civil Judge observed in Para 5 of his judgment that there was 'ample evidence' on record to show that the gift deed Exhibit 43 had been acted upon by the parties. It is seen from the proceedings of the Civil Judge, that the appeal was presented on January 29. 1965 and he dismissed it summarily on February 20, 1965, and he did so even without sending for the record. If the record was not before the Civil Judge, it is difficult to understand how he found it possible to say that there was 'ample evidence' on record to show that the gift deed Exhibit 43 has been acted upon by the parties. The evidence produced in the case was not before him, and what the Civil Judge himself stated in his judgment demonstrated the necessity for the scrutiny into the evidence concerning Exhibit 43.
11. Resort to a summary dismissal should be restricted to an appeal which is so obviously devoid of substance or merit that the issue of notice to the opposite side would be an unmeaning formality. But the appeal before the Civil Judge was not one such.
12. So, I allow the appeal and set aside the decree of the Civil Judge and remit it to him for fresh disposal according to law. Court-fee paid on the appeal shall be refunded,
13. No costs.
14. Appeal allowed.