IN THE SUPREME COURT OF INDIA

CIVIL  APPELLATE JURISDICTION

CIVIL  APPEAL NO.  6599 OF 2008 (Arising out of S.L.P. (C) No.22382/2002)

    Mehrunnissa Bee         ...Appellant

Versus

    Mohd. Noorulla Sheriff & Ors....Respondents                    

O  R  D  E  R

Delay condoned.

Applications for substitution are allowed.

Leave granted.

Having  heard  learned  counsel  for  the  parties,  we  are  of  the

opinion that the interest of justice would be subserved if the impugned judgment is set

aside and the matter is remitted to the High Court for consideration thereof afresh.

We have passed this  order having regard to the fact that the

High  Court  while  disposing  of  the  appeal  noticed  the  contentions  of  the  learned

counsel appearing on behalf of the parties as also the findings of the Courts below

and dealt  as under:

" It is not only the decision arrived at by the Lower Court as aforeseen, but also the manner in which the said decision has been arrived at on trial recording the

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evidence following the procedures established by law, the Lower Court cannot be said to be either on the error or to be unfair. This Court is not able to see any patent error

of law or perversity in approach or any legal infirmity or inconsistency in the whole of the judgment rendered by the Court below and therefore the interference of this Court that is sought to be made into the well considered and merited judgment and decree  passed  by  the  Lower  Court,  is  neither  necessary  nor  warranted  in  the circumstances of the case."

The manner in which the impugned judgment has been passed is wholly

unsatisfactory.  The  First  Appellate  Court  while  exercising  its  jurisdiction  under

Section 96 of the Code of Civil Procedure is bound to consider the facts as also the law

arising in the suit.

However, in this case, as noticed hereinbefore, the High Court has refused

to interfere with the judgment of the trial Judge, inter-alia, on the ground that the

recording of the evidence cannot be said to be either erroneous or unfair.

The Hight court, therefore, while considering the matter afresh shall pass a

judgment on the merit of the matter upon hearing the learned counsel for the parties.

With  the  aforementioned  directions  and  observations,  the  appeal  is

allowed.

......................J.       [S.B. SINHA]

.....................J                                       [ CYRIAC JOSEPH ] New Delhi, November 4, 2008.