Kuldeep Saxena vs Smt. Archana Saxena & 6 Others
2017 Latest Caselaw 3423 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
RESERVED
 
Court No. - 6
 
Case :- SECOND APPEAL No. - 309 of 2016
 
Appellant :- Kuldeep Saxena
 
Respondent :- Smt. Archana Saxena & 6 Others
 
Counsel for Appellant :- Sudeep Seth,Yogesh Gurnanee
 
Counsel for Respondent :- Deepanshu Das
 

 
Hon'ble Anil Kumar,J.

Heard Shri Sudeep Seth, learned counsel for the appellant, Shri Deepanshu Das, learned counsel for the respondents and perused the record.

The controversy involved in the present case relates to House No.342/110 situated in Mohalla-Naubasta, Triveniganj, Near Old Ward Saadatganj, District-Lucknow, boundaries of the same are as under :-

East-Open Place,

West-Government Road,

North, Government Road and

West-House of Shri S. N. Srivastava.

Plaintiff/appellant filed a Regular Suit No.21 of 2002 "Kuldeep Saxena vs. Raj Bahadur Saxena and others" in the Court of Civil Judge (Junior Division), South, Lucknow seeking for permanent injunction to restrain the defendants/respondents from interfering in the peaceful possession of the plaintiff/appellant and not to sell the house in question.

Thereafter, defendants/respondents filed a written statement and also set up a counter claim in which they sought a relief that a decree in the nature of possession of the portion in occupation of the plaintiff, described in detail in paragraph 24 of this written statement-cum-counter claim may be passed in their favour.

The trial Court/ Civil Judge (Junior Division), South, Lucknow, by means of the judgment and decree dated 15.01.2009, had dismissed the Regular Suit No.21 of 2002 and decree the counter claim filed by the defendants/respondents.

Aggrieved by the same, plaintiff/appellant filed a Regular Civil Appeal No.0000028/2009, dismissed by judgment and decree dated 11.08.2016 passed by Additional Session Judge, Court No.2, Lucknow. Thereafter, the plaintiff/appellant has challenged the judgments and decree dated 15.01.2009 as well as 11.08.2016 passed by the courts below by filing the present second appeal under Section 100 C.P.C.

On 03.11.2016, this Court has admitted the second appeal on the following substantial questions of law :-

"Whether both the Courts below have committed error of law in recording a perverse finding of the Will dated 9.11.2002 attended with suspicious circumstances, in the absence of any issue as to whether the Will dated 9.11.2002 was genuine and attended with suspicious circumstances framed by the Trial Court or the First Appellate Court ?

Whether both the Courts below misread the evidence of Shri Sanjiv Sinha (P.W.-2), attesting witness of Will dated 9.11.2002 and recorded the perverse finding of Will not proved by the Appellant ?"

In its order dated 03.11.2016, this Court has also observed that any other question, which may emerge during the course of hearing of the appeal is also left open.

On 17.07.2017, the following substantial question of law has also been framed :-

"Whether the First Appellate Court has committed error in law by not formulating the points for consideration before proceeding to consider and discuss the evidence, causing prejudice to the Appellant, by ignoring the provisions of Order 41 Rule 31 C.P.C. ? "

Shri Sudeep Seth and Shri Deepanshu Das, learned counsel appearing for the parties had requested the Court that the present appeal may be considered/heard on the substantial question of law framed on 17.07.2017 first. Further the said substantial question of law is involved in number of appeals which are pending before this Court, so a request has been made by the member of the Bar that they may also be allowed to argue on the point in issue.

As such, Shri Mohd. Arif Khan, learned Senior Advocate, Shri A. S. Chaudhary, Shri R. S. Pandey, G. C. Sinha, Shri U. S. Sahai and Shri Hari Om Singh, learned counsel have been permitted to assist the Court.

Shri Sudeep Seth, learned counsel for the appellant submits that it is mandatory on the part of appellate court to frame the point of determination under Order 41 Rule 31 CPC which is procedural law and the same is to be followed because Sub-section 16 of Section 2 of Code of Civil Procedure provides as under :-

"Prescribed" means prescribed by rules."

In order to elaborate his argument, he submits that Section 96 CPC provides that while hearing the appeal, First Appellate Court has the power as provided under Section 107 C.P.C., which reads as under :- (1) Subject to such condition and limitations as may be prescribed, an Appellate Court shall have power -

(a) to determine a case finally

(b) to remand a case

(c) to frame issues and refer them for trial

(d) to take additional evidence or to require such evidence to be taken

(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.

In this regard, he has placed reliance on the provisions of Order 41 Rule 30 C.P.C., which reads as under :-

" (1) The Appellate Court, after hearing the parties or their pleaders and referring to any part of the proceedings, whether on appeal or in the Court from whose decree the appeal is preferred, to which reference may be considered necessary, shall pronounce judgment in open Court, either at once or on some future day of which notice shall be given to the parties or their pleaders.

(2) Where a written judgment is to be pronounced, it shall be sufficient if the points for determination, the decision thereon and the final order passed in the appeal are read out and it shall not be necessary for the Court to read out the whole judgment, but a copy of the whole judgment shall be made available for the perusal of the parties or their pleaders immediately after the judgment is pronounced."

He further submits that as per wording given under Order 41 Rule 31 C.P.C., which reads as under :-

"The judgment of the Appellate Court shall be in writing and 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 l;

and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein."

So the position which emerges out is that the condition as mentioned in Order 41 Rule 31 C.P.C. is mandatory in nature because Legislature has used word "shall" in the said order, so it is mandatory on the part of the Appellate Court to comply with the said provisions.

In support of his arguments, Shri Sudeep Seth, learned counsel for the appellant has placed reliance on the following judgments :-

" 1. Thakur Sukhpal Singh vs. Thakur Kalyan Singh AIR 1963 Supreme Court 146

2. Girijanandini vs. Bijendra Narain AIR 1967 SCC 1124

3. Santosh Hazari vs. Purushottam Tiwari (Deceased) by Lrs. (2001) 3 SCC 179

4. Lakshmi Ram Bhuyan vs. Hari Prasad Bhuyan and others (2003) 1 SCC 197

5. G. Amalorpavam and others vs. R. C. Diocese of Madurai and others (2006) 3 SCC 224

6. Shiv Kumar Sharma vs. Santosh Kumari (2007) 8 SCC 600

7. Gannmani Anasuya and others vs. Parvatini Amarendra Chowdhary and others (2007) 10 SCC 296

8. M/s. Nopany Investments (P) Ltd. vs. Santokh Singh (HUF) (2008) 2 SCC 728

9. B. V. Nagesh and another vs. H. V. Sreenivasa Murthy (2010) 13 SCC 530

10. H. Siddiqui (Dead) by Lrs. vs. A. Ramalingam (2011) 4 SCC 240

11. United Engineers and Contractors vs. Secretary to Government of Andhra Pradesh and others (2014) 16 SCC 10

12. Vinod Kumar vs. Gangadhar (2015) 1 SCC 391

13. A. M. Sangappa @ Sangappa vs.Sangondeppa & Anr. 2014 (102) ALR 274

14. Laliteshwar Prasad Singh vs. S. D. Srivastava 2017 (35) LCD 7.

Shri Sudeep Seth, learned counsel for the appellant further argued that in addition to the above said position of law, the compliance of Order 41 Rule 31 C.P.C. is mandatory, the same should be framed by the Appellate Court prior to hearing the matter on merit at the appellate stage in order to enable the learned counsel for the parties to know on what point, they have to argue.

In support of his argument, he submitted that while deciding a suit, after exchange of pleadings and evidence, the trial Court has to frame the issues as per the provisions of Order 14 Rule 1 C.P.C. and while deciding the second appeal, this Court has to frame the substantial question of law under Section 100 C.P.C. prior to hearing the second appeal.

Because the provision requires adjudication in the societal context and its interpretation requires dynamism and to shun static interpretation. The provision of framing points for determination prior to hearing the appellant and respondents ought to be read in purposive interpretation of Order 41 Rule 31 (a) read with Order 41 Rule 30 (1) CPC, so as to afford litigating parties an opportunity of knowing/understanding and arguing on the points of determination framed to eschew the allegation of not granting opportunity of hearing on a particular issue though dealt in the Appellate Court Judgment or an issue raised and argued but not dealt in the Appellate Court Judgment.

He further submits that Order 41 Rule 31 CPC is preceded by Rule 30 (1) which emphasizes pronouncement of judgment by the Appellate Court after hearing the parties or their pleaders and referring to any part of the proceedings, whether on appeal or in the court and from whose decree the appeal is preferred. Under Rule 30 (2), the points for determination, the decision thereon and the final order passed in the Appeal are required to be read out while pronouncing a written judgment. As such, the purposive interpretation of Rule 31 (a) on reading with Rule 30 (1) (2) requires framing of points for determination by a separate order prior to hearing the parties or their pleaders and making reference to that separate order, the judgment should be pronounced. In such an eventuality, the points for determination duly framed by the Appellate Court in the knowledge of the parties or their pleaders, they can make specific and rival contention in a more focused manner. It also obliterates the allegation of party or pleader about issue/point raised and argued but not considered/dealt in the judgment or the presumption of point not determined/framed by the Appellate Court in the judgment which was not argued/pressed.

In support of his argument, he has placed reliance on two cases, namely, Abhiram Singh vs. C. D. Commachen 2017 (2) SCC 629 and Shailesh Dhairyawan vs. Mohan Balkrishan Lulla 2016 (3) SCC 619.

Accordingly, Shri Sudeep Seth, learned counsel for the appellant submits that in the present case, Appellate Court has not followed the provisions of Order 41 Rule 31 (a) CPC, so the present is liable to be allowed on the substantial question of law as framed on 17.07.2017.

Shri Deepanshu Das, learned counsel for the respondent while rebutting the contention made by learned counsel for the appellant, on the basis of the paragraph no.9 of the judgment given by Hon'ble the Apex Court in the case of G. Amalorpavam vs. R. C. Diocese of Madurai 2006 (3) SCC 224 submits that there should be only substantial compliance of Order 41 Rule 31 and it is not mandatory on the part of the Appellate Court to frame the point of determination as per said order where the Appellate Court has given a decision after taking into consideration the rival contention as made by the parties in the appeal and determined the point involved in the case which provides the opportunity to litigant in understanding the ground upon which the decision is founded with a view to enable them to know the basis of the decision and if so considered appropriate and so advised to avail the remedy of second appeal conferred by Section 100 C.P.C.

He further on the basis of the judgment given by Hon'ble the Apex Court in the case of Peri Sankayya and another vs. Nallayyee and others (2005) 13 SCC 448 submits that if the Appellate Court gives a judgment after considering the entire facts and law cited by the parties, in accordance to which substantial compliance has been made, then it is not mandatory on the part of Appellate Court to frame the point of determination as per Order 41 Rule 31 C.P.C. and on the point in issue, he has also relied upon the judgment given by Hon'ble the Apex Court in the case of Syeda Rahimunnisa vs. Malan Bi (Dead) By Legal Representatives and another (2016) 10 SCC 315 wherein it has been held that the procedure of Order 41 Rule 31 C.P.C. cannot be a ground for setting the judgment as per provisions of Section 100 C.P.C. as the substantial questions of law cannot be regarded as satisfying the test of being "substantial questions of law" within the meaning of Section 100 C.P.C. and has also placed reliance upon the judgment given by Privy Council in the case of Gokal Chand Jagan Nath vs. Nand Ram Das Atma Ram 1938 ILR (DC) 156.

Accordingly, he argued that it is not mandatory for the appellate Court to frame the point of determination as the said defects is merely irregularities because in the case of Gokal Chand Jagan Nath (Supra), Hon'ble the Apex Court has held that compliance of Order 41 Rule 31 is not mandatory if the appellate court has pronounced the judgment without framing the point of determination as per the provisions of Order 41 Rule 31 C.P.C.

Sri Deepanshu Das, learned counsel for the respondents further submits that after taking into consideration the provisions of Order 41 Rule 30 sub rule (1), Order 42 as well as Section 100 CPC it can be said that legislature while in-acting Code of Civil Procedure in respect to trial stage by way of Order 14 Rule 1 has laid the mandatory condition to frame the issue first. Similarly, while deciding the second appeal under Section 100 CPC, this Court has to formulate the question of law. However, so far as the matter in regard to hearing the first appeal is concerned, legislature has not made the point of determination to be formulated first.

In order to elaborate his arguments, Sri Deepanshu Das, learned counsel for the respondents submits that Order 41 Rule 30 CPC provides that the Appellate Court after hearing the parties or their pleaders and referring to any part of the proceedings, whether on appeal or in the Court from whose decree the appeal is preferred, from which reference may be considered necessary , shall pronounce judgment in open Court either at once or on some future day on which notice shall be given to the parties or their pleaders. Order 41 Rule 30 further says that where a written judgment is to be pronounced, it shall be sufficient if the points of determination, the decision thereon and the final order passed in the appeal are read out and it shall not be necessary for the Court to read out the whole judgment, so taking into consideration the said fact as well as the provisions of Order 41 Rule 31 CPC, it is not mandatory on the part of the Appellate Court to frame point of determination first and thereafter decide the appeal.

He further submits that in none of the judgment which has been cited by learned counsel for the petitioner the Apex Court has laid down the stage on which point of determination has to be framed only by passing the remark in regard to framing point of issue under order 41 Rule 31 CPC.

Sri Deepasnshu Dass, learned counsel for the respondents, on the basis of judgments given by Hon'ble Apex Court in the case of Thakur Sukhpal Singh (supra) submits that it is not necessary for the Appellate Court to hear the learned counsel for the parties before framing the point of determination as per the provisions of Order 41 Rule 31 CPC and the only requirement is that the judgment of the Appellate Court must contain point of determination in order to enable the Second Appellate Court or Revisional Court to know on what points the appeal has been decided.

So in view of Para-16 of the Thakur Sukhpal Singh (supra)'s case, it is not incumbent upon the appellate court to comply the provisions under Order 41 Rule 31 CPC while passing the judgment and the intention of legislature is crystal clear that provisions of Order 41 Rule 31 CPC has to be followed by the appellate court only at the time of writing of judgment because Hon'ble the Apex Court in the case of Gannmani Anasuya and others Vs. Parvatini Amarendra Chowdhary and others ( 2007) 10 SCC 297 held that the point of determination shall be framed by the Appellate Court only after submissions made on behalf of the appellants and in the case of G. Amalorpavam and others Vs. R.C. Diocese of Madurai and others , (2006) 3 SCC 224 it has been held that there should be substantial compliance of Order 41 Rule 31 CPC and the substantial compliance has been done. It cannot be said that judgment passed by the appellate court without formulating the point of determination under Order 41 Rule 31 CPC is contrary to law and non compliance of the said provisions will not vitiate the judgment void.

It is further submitted by Shri Deepanshu Das, learned counsel for the respondent that the Appellate Court has framed the point of determination while deciding the First Appeal, which is evident from the bare perusal of the pages 4 and 7 of the judgment dated 11.08.2016 passed in First Appeal, so there is compliance of Order 41 Rule 31(a) CPC in the instant matter.

Mohd. Arif Khan, learned Senior counsel submits that from the bare reading of Order 41 Rule 31 CPC, the position which emerges out is that the legislature has laid down a complete procedure in regard to giving a judgment by the Appellate Court i.e. Appellate Court shall first (a) frame point of determination, (b) decision thereon and (C) the reasons for the decision.

Accordingly, it is submitted by learned Senior counsel that from the bare reading of Order 41 Rule 31 CPC, the position which emerges out is that the provisions of Order 41 Rule 31(a) is mandatory and the Appellate Court shall frame the point of determination.

He further submits that from the bare reading of Order 42 Rule 2 CPC, the position which emerges out is that while hearing a second appeal, court shall formulate the substantial question of law as required under Section 100 CPC and in doing so, the Court may direct that the second appeal be heard on the question so formulated and it shall not be open to the appellant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of Section 100.

Accordingly, it is submitted by him that the provisions of Order 41 Rule 31 CPC is pari materia to the provisions as provided under Order 42 Rule 2 CPC, hence the compliance of provisions of Order 41 Rule 31(a) CPC is mandatory.

Sri Mohd. Arif Khan, learned Senior Counsel further submits that if mandatory duty is casted upon the first appellate court to decide the first appeal after determining the point of determination, the same will facilitate and enable the learned counsel for the parties to know on what points they have to argue in the first appeal and it also enables the Second Appellate Court to know that on what points, the Appellate Court had decided the appeal.

Mohd. Arif Khan, learned Senior Counsel further submits that so far as the Order 41 Rule 31 CPC is concerned, procedural law has been enacted only in order to facilitate the court in deciding the first Appellate Court. In this regard, he further submits that mandatory duty has been casted upon the first Appellate Court as per the provisions of Order 41 Rule 31 CPC to frame the point of determination first and thereafter hear the appeal themselves only on conclusion which can be drawn from the bare reading of the provisions as the object of the same is that learned counsel for the parties shall know on what points they have to argue the appeal.

Mohd. Arif Khan, learned Senior counsel further submits that even if there is substantial compliance to frame the point of determination in the judgment of the Appellate Court because legislature has used word "shall" in the provisions of Order 41 Rule 31 CPC and there is logic behind the same without framing the point of determination before higher court and should be able to came to know that on what points and the reasoning, the First Appellate Court had decided the first appeal.

Mohd. Arif Khan, learned Senior Advocate argued that in the light of pronouncement of judgments on the point in issue by Hon'ble Apex Court as well as this Court , the only conclusion which can be drawn is that the appellate court while deciding the first appeal should strictly comply with the Order 41 Rule 31-A C.P.C. i.e. it should frame the point of determination.

Mohd. Arif Khan, learned Senior Advocate further submits that once the first appeal is admitted and respondent has to put his appearance in appeal then prior to adjudicating the disputes between the parties , the first appellate court shall frame point of determination as per the provisions as provided under Order 41 Rule 31(a) CPC which is also pursuant to principle of natural justice as both the counsel should be aware of the facts that on what point they have to address to the first appellate court.

He further submits that on the point in issue there is no direct decision but in view of para 5 and relevant portion of Para 9 of Sayed Muhammed Mashur Kunhi Koya Thangal Vs. Badagara Jumayath Palli Dharas Committee and others,2005(23) LCD 309's case, this Court has held as under:-

"Shri R.F. Nariman, the learned senior counsel for the appellant, contended that the High Court committed a serious error in reversing the judgment of the first appellate court on a so-called substantial question of law without formulating it so as to put the parties on notice; such a course adopted by the High Court was contrary to the mandatory requirement of Section 100 of Civil Procedure Code. The reversal of the judgment of the first appellate court on a question of fact under Section 100 of Civil Procedure Code, that too in the absence of any pleading issue and supporting evidence, cannot be sustained.

The first appellate court having elaborately considered the evidence placed on record in the light of the pleadings of the parties had come to the right conclusion in dismissing the suit of the plaintiff. The High Court in second appeal, in our view, was not right in upsetting the findings of fact recorded by the first appellate court, that too without putting the parties on notice on the substantial question of law. Even otherwise, the finding of the High Court on question no. 3 cannot be sustained when such a case did not arise for consideration in the absence of necessary pleading in the plaint in that regard. More so when the case of the plaintiff was based clearly on title said to have been derived under Exbt. A-2."

Accordingly, Shri Mohd. Arif Khan, learned Senior Counsel submits that :-

(a) It is mandatory duty cased upon the Appellate Court to frame the point of determination.

(b) The point of determination should be framed by the Appellate Court prior to hearing the appeal on merit, which will enable the learned counsel for the parties to know on what points, they have to argue the appeal.

Shri R. S. Pandey, Shri U. S. Sahai, Shri Hari Om Singh, learned counsel have submitted that the appellate Court should strictly comply with the provisions as provided under Order 41 Rule 31 C.P.C., and supported the argument raised by Shri Sudeep Seth, learned counsel and Shri Mohd. Arif Khan, learned Senior Advocate.

Shri A. S. Chaudhary, learned counsel submits that no mandatory duty is casted upon the Appellate Court to frame the point of determination while deciding the appeal, if there is substantial compliance of the same which is evident from the bare reading of the judgment.

He further submits that at the appellate stage, if mandatory duty is casted upon the Appellate Court to frame the point of determination, then in that circumstances, the appeals which are pending before this Court in which the point of determination has not been framed as per provisions of Order 41 Rule 31 CPC be allowed on the substantial questions of law, the same will prejudice the appellant in the said second appeal, the same shall not be in the interest of the litigants.

Shri G. C. Sinha, learned counsel has supported the contention raised by Shri Deepanshu Das, learned counsel for the respondent as well as Shri A. S. Chaudhary, learned counsel.

In order to consider and decide the controversy involved in the present case, it will be appropriate to go though the provisions as provided under Order 41 Rule 31 CPC, which is reproduced herein below:-

"31 . Contents, date and signature of judgment-- The judgment of the Appellate Court shall be in writing and 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;

and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein."

The word used by the legislature under Order 41 Rule 31 CPC are to the effect that the order of the appellate court shall be in writing and shall state (a) the point for determination; so the question which is to be considered whether intention of the legislature while indicating the provisions as provided under Order 41 Rule 31 (a) CPC is mandatory in nature or not ?

The distinction of mandatory compliance or directory effect of the language depends upon the language couched in the statute under consideration and its object, purpose and effect. Where the language of statute creates a duty, the special remedy is prescribed for non-performance of the duty. In "Craies on Statute Law" (7th Edn.), it is stated that the Court will, as a general rule, presume that the appropriate remedy by common law or mandamus for action was intended to apply. General rule of law is that where a general obligation is created by statute and statutory remedy is provided for violation, then the statutory remedy is mandatory. The scope and language of the statute and consideration of policy at times may, however, create exception showing that legislature did not intend a remedy (generality) to be exclusive. Words are the skin of the language. The language is the medium of expressing the intention and the object that particular provision or the Act seeks to achieve, therefore, it is necessary to ascertain the intention. The word "shall" is not always decisive. Regard must be to the context, subject matter and object of the statutory provision in question in determining whether the same is mandatory or directory.

No universal principle of law could be laid in that behalf as to whether a particular provision or enactment shall be considered mandatory or directory. It is the duty of the Court to try to get at the real intention of the legislature by carefully analysing the whole scope of the statute or section or a phrase under consideration. Further whether the statute is mandatory or directory depends upon the language in which the intent is couched. [The meaning and purpose the act seeks to achieve].

In "Suhtherland Statutory Construction" (3rd Edn.) Volume 1 at page 81 in paragraph 316, it is stated that although the problem of mandatory and directory legislation is a hazard, it is peculiarly hazardous to administrative agencies because the validity of their action depends upon exercise of authority in accordance with their charter of existence the statute. If the directions of the statute are mandatory, then strict compliance with the statutory terms is essential to the validity action. But if the language of the statute is directory only, then variation from its direction does not invalidate action. Conversely, if the statutory direction is discretionary only, it may not provide an adequate standard for legislative action and the delegation.

In "Crawford on the Construction of Statutes" at page 516, it is stated that :

"The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other ...."

In "Maxwell on the interpretation of Statutes", 10th Edition, at page 381, it is stated thus :

"On the other hand, where the prescriptions of a statute relate to the performance of a public duty and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and government of those on whom as directory only. The neglect of them may be penal, indeed, but it does not affect the validity of the act done in disregard of them."

In the case of State of U.P. Vs. Babu Ram Upadaya, 1961 (2) SCR 679, the law was down thus :

"When a statute uses the word "shall", prima facie, it is mandatory, but the Court may ascertain the real intention of the legislature by carefully attending the whole scope of the statute. For ascertaining the real intention of the Legislature the Court may consider, inter alia, the nature and statute, and the consequences which would follow from construing it the one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstances, contingency of the non-compliance with the provisions, the fact the non- compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow therefrom, and, above all, whether the object of the legislation will be defeated or furthered."

In the case of State of Uttar Pradesh Vs. Jogendra Singh, 1964 (2) SCR 197, in which Hon'ble the Apex Court Court has held that the word `may' is capable of meaning `must' or `shall' in the light of the context in which the word is used and where a discretion is conferred upon a public authority coupled with an obligation, the word `may' which denotes discretion should be construed to mean a command.

In the case of Govindlal Chhaganlal Patel Vs. the Agricultural Produce Market Committee, Godhra and Others, 1975 (2) SCC 482, wherein Hon'ble the Supreme Court has held that the question as to whether a statue is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed and, therefore, the use of the word `shall' or `may' is not conclusive on the question where the particular requirement of law is mandatory or directory.

Ho'ble the Apex Court in the case of Pesara Pushpamata Reddy Vs. G. Veera Swamy and Ors., 2011(3) SCR 496, after taking into consideration the principle of Statutory Interpretation, 12th Edition, 2010 at page 406-407, held as under:-

"The use of word `shall' raises a presumption that the particular provision is imperative; but this prima facie inference may be rebutted by other considerations such as object and scope of the enactment and the consequences flowing from such construction."

In the case of Khub Chand vs. State of Rajasthan AIR 1967 SC 1074, Hon'ble the Apex Court held that the term "shall" in its ordinary significance is mandatory and the court shall ordinarily give that interpretation to that term unless such an interpretation leads to some absurd or inconvenient consequence or be at variance with the intent of the legislature, to be collected from other parts of the Act. The construction of the said expression depends on the provisions of a particular Act, the setting in which the expression appears, the object for which the direction is given, the consequences that would flow from the infringement of the direction and such other considerations. (See M/s. Sainik Motors, Jodhpur and others vs. State of Rajasthan AIR 1961 SC 1480).

Order 41 Rule 31 CPC had come up for consideration in the case of Gupta Nand vs. Behari Lal and others AIR 1924 Allahabad 100, wherein this Court has held that "the provisions of the law are mandatory and the reason is obvious. A Judge is bound to give the points for decision and the reasons for the decision thereon in order to enable the Court of appeal to see that the judge whose findings on facts are binding on this Court, has put properly before him the points at issue and has decided them. (See Baban Singh v. Jaimangal Singh (1906) A.W.N. 86)."

In the case of Muhammad Husain Khan and others vs. Babu Kishva Nandan Sahai AIR 1937 Privy Council 233, it has been held that although the provisions contained in the Civil Procedure Code do not regulate the procedure of their Lordships of the Privy Council in hearing appeals from India, still as the rule embodied in Section 99 C.P.C. proceeds upon a sound principle and is calculated to promote justice, hence, it can be applied. "

In the case of Gokal Chandjagan Nath vs. Nand Ram Das Atma Ram 1938 ILR (DC) 56, the Privy Council held as under :-

"Order XLI, Rule 31, requires that the judgment of the appellate Court shall be in writing and shall state various matters, and "shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.

The rule does not say that if its requirements are not complied with the judgment shall be a nullity. So startling a result would need clear and precise words. Indeed the rule does not even state any definite time in which it is to be fulfilled. The time is left to be defined by what is reasonable. The rule from its very nature is not intended to affect the rights of parties to a judgment. It is intended to secure certainty in the ascertainment of what the judgment was. It is a rule which Judges are required to comply with for that object. No doubt in practice Judges do so comply, as it is their duty to do. But accidents may happen. A Judge may die after giving judgment but before he has had a reasonable opportunity to sign it. The Court must have inherent jurisdiction to supply such a defect. The case of a Judge who has gone on leave before signing the judgment may call for more comment, but even so the convenience of the Court and the interest of litigants must prevail. The defect is merely an irregularity. But in truth the difficulty is disposed of by Sections 99 and 108 of the Civil Procedure Code. Section 99 provides that no decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account ofany error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court. That section conies in the part dealing with appeals from original decrees. But Section 108 applies the same provision to appeals from appellate decrees, and it is always in the discretion of the Board to apply the principle on appeal to His Majesty in Council. In their Lordships' judgment, the defect here was an irregularity not affecting the merits of the case or the jurisdiction of the Court, and is no ground for setting aside the decree."

Order 41 Rule 31 C.P.C. was come up for consideration before Hon'ble the Apex Court in the case of Thakur Sukhpal Singh vs. Thakur Kalyan Singh AIR 1963 Supreme Court 146 and in the said case, three Judges Bench of Hon'ble the Apex Court has held as under :-

"Learned counsel for the appellant does not dispute these propositions. His contention, however is that even if the appellant does not address the Court, the Court must go through the record and the judgment under appeal and come to its own conclusion about the correctness of the decision under appeal. Support for this contention is sought from the provisions of r. 32 of O. XLI which reads :

"The judgment of the Appellate Court shall be in writing and shall state -

(a) the points for determination;

(b) the decision there on;

(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;

and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein."

7. It is urged that the judgment of the appellate Court has to state the points for determination, the decision thereon and the reasons for the decision, and these the appellate Court cannot do till it has gone through the record and considered the entire matter on record including the judgment under appeal. The matters have to be in the judgment when points in dispute between the parties are raised before the appellate Court. If no such points are raised for consideration, the appellate judgment cannot refer to the points for determination in its judgment and, when there be no points raised for determination, there can be no decision thereon and no reasons for such decision. Such is the position when the appellant does not address the Court and does not submit anything against the decision of the Court below. The memorandum of appeal does contain the grounds of objection of the decree appealed from, without any argument or narrative as laid down in sub-r (2) of r. 1, O. XLI. Such grounds cannot take the place of the points for determination contemplated by r. 31. Not unoften certain grounds of objection raised in the memorandum of appeal are not argued or passed at the hearing and in that case such grounds cannot be taken to be the points for determination and are rightly not discussed in the judgment at all. It is for the appellant to raise the points against the judgment appealed from. He has to submit reasons against its correctness. He cannot just raise objections in his memorandum of appeal and leave it to the appellant Court to give its decision on those points after going through the record and determining the correctness thereof. It is not for the appellate Court itself to find out that the points for determination can be and then proceed to give a decision on those points.

The Privy Council observed in Mt. Fakrunisa v. Moulvi Izarus A.I.R. 1921 P.C. 55

"In every appeal it is incumbent upon the appellants to show reason why the judgment appealed from should be disturbed; there must be some balance in their favour when all the circumstances are considered, to justify the alteration of the judgment that stands. Their Lord-ships are unable to find that this duty has been discharged."

With respect, we agree with this and hold that it is the duty of the appellant to show that the judgment under appeal is erroneous for certain reasons and it is only after the appellant has shown this that the appellate Court would call upon the respondent to reply to the contention. It is only then that the judgment of the appellate Court can fully contain all the various matters mentioned in r. 31, O. XLI."

In the case of Girijanandini vs. Bijendra Narain AIR 1967 SCC 1124, Hon'ble the Apex Court has held as under :-

" The Trial Court, as we have already observed, on a consideration of the entire evidence and the subsequent conduct of the parties came to the conclusion that there was no severance of Bijendra Narain from his uncle Bidya Narain and with that view the High Court agreed. It is true that the High Court did not enter upon a reappraisal of the evidence, but it generally approved of the reasons adduced by the Trial Court in support of its conclusion. We are unable to hold that the learned Judges of the High Court did not, as is contended before us, consider the evidence. It is not the duty of the appellate court when it agrees with the view of the Trial Court on the evidence either to restate the effect of the evidence or to reiterate the reasons given by the Trial Court. Expression of general agreement with reasons given by the Court decision of which is under appeal would ordinarily suffice."

However, in the case of Girijanandini (Supra), Hon'ble the Apex Court had not considered the judgment rendered by three Judges Bench of Hon'ble the Apex Court in the case of Thakur Sukhpal Singh (Supra).

In the case of Santosh Hazari vs. Purushottam Tiwari (Deceased) by Lrs. (2001) 3 SCC 179, Hon'ble the Apex Court has held as under :-

"A perusal of the judgment of the trial Court shows that it has extensively dealt with the oral and documentary evidence adduced by the parties for deciding the issues on which the parties went to trial. It also found that in support of his plea of adverse possession on the disputed land, the defendant did not produce any documentary evidence while the oral evidence adduced by the defendant was conflicting in nature and hence unworthy of reliance. The first appellate Court has, in a very cryptic manner, reversed the finding on question of possession and dispossession as alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. 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. The task of an appellate Court affirming the findings of the trial Court is an easier one. The appellate Court agreeing with the view of the trial Court need not restate the effect of the evidence or reiterate the reasons given by the trial Court; expression of general agreement with reasons given by the Court, decision of which is under appeal, would ordinarily suffice (See Girijanandini Devi & Ors. Vs. Bijendra Narain Choudhary, AIR 1967 SC 1124). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate Court for shirking the duty cast on it. While writing a judgment of reversal the appellate Court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial Court must weigh with the appellate Court, more so when the findings are based on oral evidence recorded by the same presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate Court is entitled to interfere with the finding of fact (See Madhusudan Das Vs. Smt. Narayani Bai & Ors., AIR 1983 SC 114). The rule is __ and it is nothing more than a rule of practice __ that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judges notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the finding of the trial Judge on a question of fact.(See Sarju Pershad Ramdeo Sahu Vs. Jwaleshwari Pratap Narain Singh & Ors., AIR 1951 SC 120). Secondly, 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. We need only remind the first appellate Courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate Court continues, as before, to be a final Court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate Court is also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate Court even on questions of law unless such question of law be a substantial one."

In the case of Lakshmi Ram Bhuyan vs. Hari Prasad Bhuyan and others (2003) 1 SCC 197, Hon'ble the Apex Court has held as under :-

"The obligation is cast not only on the Trial Court but also on the Appellate Court. In the event of the suit having been decreed by the Trial Court if the Appellate Court interferes with the judgment of the trial court the judgment of the Appellate Court should precisely and specifically set out the reliefs granted on the modifications, if any, made in the original decree explicitly and with particularity and precision. Order XLI, Rule 31 of the CPC casts an obligation on the author of the appellate judgments to state the points for determination, the decision thereon, the reasons for the decision and when the decree appealed from is reversed or varied, the relief to which the appellant is entitled."

In the case of G. Amalorpavam and others vs. R. C. Diocese of Madurai and others (2006) 3 SCC 224, Hon'ble the Apex Court after taking into consideration the law laid down by Hon'ble the Apex Court in the cases of Girijanandini (Supra) and Sanotsh Hazari (Supra) while interpreting the provisions as provided under Order 41 Rule 31 C.P.C. has held as under :-

"The question whether in a particular case there has been a substantial compliance with the provisions of Order 41 Rule 31 CPC has to be determined on the nature of the judgment delivered in each case. Non-compliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it and the second appellate Court is in a position to ascertain the findings of the lower appellate Court. It is no doubt desirable that the appellate court should comply with all the requirements of Order 41 Rule 31 CPC. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient. Where the appellate court has considered the entire evidence on record and discussed the same in detail, come to any conclusion and its findings are supported by reasons even though the point has not been framed by the appellate Court there is substantial compliance with the provisions of Order 41 Rule 31 CPC and the judgment is not in any manner vitiated by the absence of a point of determination. Where there is an honest endeavour on the part of the lower appellate court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations appearing on both sides is clearly manifest by the perusal of the judgment of the lower appellate court, it would be a valid judgment even though it does not contain the points for determination. The object of the Rule in making it incumbent upon the appellate court to frame points for determination and to cite reasons for the decision is to focus attention of the Court on the rival contentions which arise for determination and also to provide litigant parties opportunity in understanding the ground upon which the decision is founded with a view to enable them to know the basis of the decision and if so considered appropriate and so advised to avail the remedy of Second Appeal conferred by Section 100 CPC."

In the case of Shiv Kumar Sharma vs. Santosh Kumari (2007) 8 SCC 600, Hon'ble the Apex Court has held as under :-

" We, therefore, are of the opinion that the High Court was not correct in framing the additional issues of its own which did not arise for consideration in the suit or in the appeal. Even otherwise, the High Court should have formulated the points for its consideration in terms of Order XLI, Rule 31 of the Code. On the pleadings of the parties and in view of the submissions made, no such question arose for its consideration. In any event, if a second suit was maintainable in terms of Order II, Rule 4 of the Code, as was submitted by Ms. Luthra, no leave was required to be granted therefore. A civil court does not grant leave to file another suit. If the law permits, the plaintiff may file another suit but not on the basis of observations made by a superior court."

In the case of Gannmani Anasuya and others vs. Parvatini Amarendra Chowdhary and others (2007) 10 SCC 296, Hon'ble the Apex Court has held as under :-

"It was for the High Court to frame appropriate points for its determination in the light of the submissions made on behalf of Appellants in terms of Order 41 Rule 31 of the Code of Civil Procedure. The High Court failed to address itself on the said issue. Thus, apart from Issues Nos. 2 and 4, other points which for its consideration including the extent of the share of Plaintiffs and Defendant No. 1 were required to be specifically gone into particularly in view of the fact that such a contention had been considered by the learned Trial Judge. Issue Nos. 2 and 4, in our opinion, therefore, require fresh consideration at the hands of the High Court."

In the case of M/s. Nopany Investments (P) Ltd. vs. Santokh Singh (HUF) (2008) 2 SCC 728, Hon'ble the Apex Court has held as under :-

"In view of our discussions made hereinabove, we are, therefore, unable to agree with the learned senior counsel for the appellant Mr. Gupta that the High Court was not justified in holding that the findings of the first appellate court were in compliance with Order 41 of the CPC. That apart, the learned senior counsel for the appellant Mr. Gupta could not satisfy us or even point out the specific issues which, in his opinion, had been left to be addressed by the first appellate court. In view of the discussions made herein above, we are, therefore, of the view that no ground was made out by the appellant to set aside the judgment of the High Court on the question whether the judgment of the first appellate court was liable to be set aside for non- compliance with the mandatory provisions of Order 41 of the CPC."

In the case of B. V. Nagesh and another vs. H. V. Sreenivasa Murthy JT (2010) 13 SCC 530, Hon'ble the Apex Court has held as under :-

"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 therein is open for re-hearing 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 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 and Madhukar and Ors. v. Sangram and Ors. (2001) 4 SCC 756].

In the case of H. Siddiqui (Dead) by Lrs. vs. A. Ramalingam (2011) 4 SCC 240, while interpreting the Order 41 Rule 31 CPC, Hon'ble the Apex Court has held as under :-

" The said provisions provide guidelines for the appellate court as to how the court has to proceed and decide the case. The provisions should be read in such a way as to require that the various particulars mentioned therein should be taken into consideration. Thus, it must be evident from the judgment of the appellate court that the court has properly appreciated the facts/evidence, applied its mind and decided the case considering the material on record. It would amount to substantial compliance of the said provisions if the appellate court's judgment is based on the independent assessment of the relevant evidence on all important aspect of the matter and the findings of the appellate court are well founded and quite convincing. It is mandatory for the appellate court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final court of fact, the first appellate court must not record mere general expression of concurrence with the trial court judgment rather it must give reasons for its decision on each point independently to that of the trial court. Thus, the entire evidence must be considered and discussed in detail. Such exercise should be done after formulating the points for consideration in terms of the said provisions and the court must proceed in adherence to the requirements of the said statutory provisions." (Vide: Thakur Sukhpal Singh v. Thakur Kalyan Singh & Anr., AIR 1963 SC 146; Girijanandini Devi & Ors. v. Bijendra Narain Choudhary, AIR 1967 SC 1124; G. Amalorpavam & Ors. v. R.C. Diocese of Madurai & Ors., (2006) 3 SCC 224; Shiv Kumar Sharma v. Santosh Kumari, (2007) 8 SCC 600; and Gannmani Anasuya & Ors. v. Parvatini Amarendra Chowdhary & Ors., AIR 2007 SC 2380), B.V. Nagesh & Anr. v. H.V. Sreenivasa Murthy (2010) 10 SCC 551 and Santosh Hazari vs. Purushottam Tiwari, (2001) 3 SCC 179 and Madhukar and Others vs. Sangram and Others, (2001) 4 SCC 756].

In the case of United Engineers and Contractors vs. Secretary to Government of Andhra Pradesh and others (2014) 16 SCC 109, Hon'ble the Apex Court after taking into consideration the judgment given by Hon'ble the Apex Court in the case of Thakur Sukhpal Singh (Supra), Girijanandini Devi (Supra), G. Amalorpavam (Supra), Shiv Kumar Sharma (Supra) and Gannmani Anasuya (Supra) has held as under :-

"The High Court decided the appeal without following the procedure required under Order XLI Rule 31 Code of Civil Procedure. Therefore, without entering into the merits, the impugned judgment and order is set aside and the matter is remanded to the High Court to decide the first appeal in accordance with law. As the matter is quite old, we request the High Court to dispose of the first appeal as early as possible."

In the case of A. M. Sangappa @ Sangappa vs.Sangondeppa & Anr. 2014 (102) ALR 274, Hon'ble the Apex Court has held as under :-

"In a series of decisions, this Court has highlighted how a regular first appeal is to be disposed of, particularly, in the light of Order 41 Rule 31 Code of Civil Procedure. It mandates that the appellate Court has to frame points for determination, decision thereon, reasons for the decision and where the decree appealed from is reversed or varied, the relief to which the Appellant is entitled. Such recourse has not been followed by the High Court, while disposing of the regular first appeal.

It is not in dispute that the 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. Accordingly, the judgment of the appellate Court must reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth by both the sides. These principles have been reiterated in B.V. Nagesh and Anr. v. H.V. Sreenivasa Murthy (2010) 13 SCC 530."

In the case of Vinod Kumar vs. Gangadhar (2015) 1 SCC 391, Hon'ble the Apex Court after taking into consideration the earlier judgment given by Hon'ble the Apex Court in the case of B. V. Nagesh (Supra), Santosh Hazari (Supra) has held as under :-

"Being the first appellate court, it was the duty of the High Court to have decided the first appeal keeping in view the scope and powers conferred on it under Section 96 read with Order 41 Rule 31 ibid mentioned above. It was unfortunately not done, thereby, resulting in causing prejudice to the appellant whose valuable right to prosecute in the first appeal on facts and law was adversely affected which, in turn, deprived him of a hearing in the appeal in accordance with law. It is for this reason, we are unable to uphold the impugned judgment of the High Court."

In the case of Shasidhar vs. Smt. Ashwini Uma Mathad and another 2015 (33) LCD 579, Hon'ble the Apex Court after taking into consideration the law laid down in the case of Santosh Hazari vs. Purushottam Tiwari (Deceased) by L.Rs. (2001) 3 SCC 179, Madhukar & Ors. v. Sangram & Ors.,(2001) 4 SCC 756, H.K.N. Swami v. Irshad Basith,(2005) 10 SCC 243, gannath v. Arulappa & Anr., (2005) 12 SCC 303 and B.V Nagesh & Anr. vs. H.V. Sreenivasa Murthy, (2010) 13 SCC 530 held that mandatory duty has been casted upon the First Appellate Court to decide the appeal after framing the point of determination.

In the case of U.P.S.R.T.C. vs. Km. Mamta & Ors. AIR 2016 Supreme Court 948, Hon'ble the Apex Court has held as under :-

" As observed supra, as a first appellate Court, it was the duty of the High Court to have decided the appeal keeping in view the powers conferred on it by the statute. The impugned judgment also does not, in our opinion, satisfy the requirements of Order XX Rule 4 (2) read with Order XLI Rule 31 of the Code which requires that judgment shall contain a concise statement of the case, points for determination, decisions thereon and the reasons. It is for this reason, we are unable to uphold the impugned judgment of the High Court."

In the case of Laliteshwar Prasad Singh vs. S. D. Srivastava (2017) 2 SCC 415, Hon'ble the Apex Court has held that an appellate court is the final court of facts. The judgment of the appellate court must therefore reflect court's application of mind and As per Order XLI Rule 31 Code of Civil Procedure, the judgment of the first appellate court must explicitly set out the points for determination, record its reasons thereon and to give its reasonings based on evidence.

It is further held that the points which arise for determination by a court of first appeal must cover all important questions involved in the case and they should not be general and vague. Even though the appellate court would be justified in taking a different view on question of fact that should be done after adverting to the reasons given by the trial judge in arriving at the finding in question. When appellate court agrees with the views of the trial court on evidence, it need not restate effect of evidence or reiterate reasons given by trial court; expression of general agreement with reasons given by trial court would ordinarily suffice. However, when the first appellate court reverses the findings of the trial court, it must record the findings in clear terms explaining how the reasonings of the trial court is erroneous.

In the case of Lakshmi vs. Jugendra Lal 2014 (32) LCD page 1824, this Court after placing the reliance on the judgment given by Hon'ble the Apex Court in the cases of Union of India and another vs. Ranchod and others 2009 (27) LCD 407, G. Amalorpavam and others vs. R. C. Diocese of Madurai and others (2006) 3 SCC 224, Girijanandini vs. Bijendra Narain AIR 1967 SCC 1124, Santosh Hazari vs. Purushottam Tiwari (Deceased) by Lrs. (2001) 3 SCC 179, United Engineers and Contractors vs. Secretary to Government of Andhra Pradesh and others AIR 2013 SC 2239, B. V. Nagesh and another vs. H. V. Sreenivasa Murthy (2010) 13 SCC 530, A. M. Sangappa @ Sangappa vs.Sangondeppa & Anr. 2014 (102) ALR 274, has held that the Appellate Court should follow the procedure required under Order 41 Rule 31 Code of Civil Procedure and frame the point of determination while deciding the appeal.

In the case of Bala Devi (Smt.) vs. Mukhtyar Singh 2017 (2) ARC 363, this Court held that First Appellate Court must decide the appeal giving adherence to the statutory provisions of Order XLI Rule 31 Code of Civil Procedure.

In the light of the above said law laid down by Hon'ble the Apex Court, the position which emerges out is that :-

(a) There is one set of judgments given by Hon'ble three Judges or two Judges of Hon'ble Apex Court wherein it has been held that it is mandatory on the part of the Appellate Court while deciding the First Appeal under Section 96 CPC to frame the point of determination as per provisions of Order 41 Rule 31 CPC.

(b) There is another set of judgments given by Hon'ble three Judges or two Judges of Hon'ble Apex Court wherein it has been held that it is mandatory on the part of the Appellate Court while deciding the First Appeal under Section 96 CPC to frame the point of determination as per provisions of Order 41 Rule 31 CPC, if there is substantial compliance of the said provision that is to say the Appellate Court had decided the first appeal after taking into consideration the entire facts and evidence on record.

Thus, the question to be considered is which set of judgment should be followed by the First Appellate Court while deciding the First Appeal under Section 96 CPC.

The answer to the said question finds place in the Full Bench Judgment of this Court in the case of Gopal Krishna vs. 5th Addl. District Judge, Kanpur and others AIR 1981 Allahabad 300 wherein it has been held as under :-

"The Supreme Court has dealt with the binding nature of its pronouncements in a number of decisions. It is not necessary to refer to those cases. In a case where a High Court finds any conflict between views expressed by larger and smaller Benches of the Supreme Court. the Supreme Court said that proper course for such a High Court is to follow the opinion expressed by larger Benches of the Supreme Court in preference to those expressed by smaller Benches of the Court (See State of U. P. v. Ram Chandra. AIR 1976 SC 2547.

The difficulty, however, before us is slightly different. and is not covered by the authority cited above. We are faced with a situation where there are conflicts between the two decisions of the Supreme Court given by Judges of equal strength. We are not concerned here with reasons which led to these conflicts.

To the same effect is the view taken by a Full Bench of Karnataka High Court in Govindanaik G. Kalghatagi v. West Patent Press Co. Ltd. AIR 1980 Kant 92 and by Calcutta High Court in M/s. Sovachand Mulchand v. Collector of Central Excise and Land Customs AIR 1968 Cal 174. Thus, what follows is that in the event of there being clear conflict, the decision of such latter Bench would be binding on us.

Counsel appearing for the petitioner submitted that since in Ram Swarup Rai's case (1980 ALL LJ 651) (SC) the earlier decision given in Ratan Lal Singhal's case AIR 1980 SC 635 had not been cited, the decision being in ignorance of a case which was binding on the Court is per incuriam. Counsel urged that Ram Swarup Rai's decision does not have a binding authority. We are unable to agree with the submission of the learned counsel for the petitioner. In Ballabhdas Mathuradas Lakhani v. Municipal Committee, Malkapur AIR 1970 SC 1002, the Supreme Court held that a Supreme Court's judgment is binding on High Court and it cannot be ignored on ground that relevant provision was not brought to the notice of the Supreme Court. To us, it appears that it is only in cases of decision of concurrent Courts that the doctrine of per incuriam can be applied. Thus, the law declared by the Supreme Court cannot be ignored on that basis. A failure to cite authority of the earlier decision of the Supreme Court before it is not sufficient to render its latter decision per incuriam. Overruling a similar argument made in Ambika Prasad Misra v. State of U. P. AIR 1980 SC 1762 Krishna Iyer. J., agreed with the following observations made in Salmond 'Jurisprudence', page 215 (11th edition):--

"A decision does not lose its authority merely because it was badly argued. inadequately considered and fallaciously reasoned."

We, therefore, cannot ignore the subsequent decision of the Supreme Court on the basis of the same being per incuriam.

To the same effect is the law laid down by Jassel M. R. in Baker v. White (1877) 5 Ch D 183(7). We do not wish to express opinion on this aspect of the matter. We would only content ourselves by saying that since we are bound by the latter decision of the Supreme Court, we must follow the same. To us, it appears that the latter decision has impliedly overruled the earlier."

In the light of the judgment given by Full Bench of this Court in the case of Gopal Krishna (Supra), the judgment given by Hon'ble three Judges of Hon'ble the Apex Court in the case of A. M. Sangappa (Supra) is latest one which lays down that the compliance of Order 41 Rule 31 CPC while deciding the First Appeal by the Appellate Court is mandatory.

Thus, mandatory duty has been casted upon the Appellate Court to frame the point of determination while deciding the First Appeal under Section 96 CPC as per provisions of Order 41 Rule 31 C.P.C.

Next point which is to be considered in the present case is that at which stage, the point of determination is to be framed by the Appellate Court whether prior to hearing the appeal in order to enable the learned counsel for the parties to know on what points they have to argue the matter or at the time of writing of the judgment.

Order 41, Rule 31 of the Code of Civil Procedure clearly provides that the judgment of the appellate Court shall be in writing and shall state the points for determination, the decision thereon, the reasons for the decision and where the decree appealed from is reversed or varied, the relief to which the appellant is entitled, shall at the time that it is pronounced be signed and dated by the Hon'ble Judge or by the Hon'ble Judges concurring therein.

Plain reading of the said provision would disclose that the appellate Court before proceeding to deliver the judgment on merits of the case has to formulate the points for determination and with reference to such points for determination, analyse the materials on record and thereupon arrive at the conclusion to be delivered as its decision. Obviously the decision should disclose the reasons for the decision. However, the reasons for decision by themselves cannot constitute the points for determination. The points for determination have to be formulated in order to enable the Court to identify the exact points in controversy in the matter and with reference to those points, the Court has to appreciate the evidence led by the parties. The compliance of Order 41, Rule 31 is mandatory and the expression used therein "shall state" clearly discloses that the failure to comply with the said provision of law would not be a mere irregularity. Indeed, the phraseology used in Rule 31 apparently discloses that compliance of the said provision is not a mere formality and therefore failure thereof cannot be said to be a mere irregularity. This is also clear from Rule 30 of Order 41 and in particular Sub-rule (2) thereof. Rule 30(2) of Order 41 provides that "where a written judgment is to be pronounced, it shall be sufficient if the points for determination, the decision thereon and the final order passed in the appeal are read out and it shall not be necessary for the Court to read out the whole judgment, but a copy of the whole judgment shall be made available for the perusal of the parties or their pleaders immediately after the judgment is pronounced," Obviously, in cases where on conclusion of the arguments in appeal, the judgment is reserved to be delivered and thereafter it is sought to be pronounced, it is not sufficient merely to declare as to whether the appeal is allowed or not, but ultimate decision has to be made known to the parties along with the points for determination which have been considered in the appeal. This provision of law clearly discloses the necessity for formulation of the point for determination before the appellate Court proceeds to deliver the judgment in the appeal.

The judgment ultimately decides about the rights of the parties and the issue sought to be raised by the adversaries in the litigation. In order to make it known to the litigating parties that the Judge delivering the judgment after considering the rival contentions, the materials placed on record and on application of mind to the same, has decided the matter, the judgment should apparently disclose the points which are considered by the Judge as relevant for consideration while dealing with the matter. This can be revealed from the judgment only when the points for determination are properly formulated by the Court before delivering its decision on the rival contention of the parties. Being so, it cannot be said to be a mere formality in the course of delivering the judgment upon the adjudication of the rights of the parties in the matter. It is rather a very important stage in the delivery of the judgment by the Court. Being so, it is to be construed as a mandatory requirement to be complied with by the appellate Court while delivering the judgment.

Further, while interpretation of the particular statute, the points which are to be considered are as under :-

"(1) Legislation is always to be understood first in accordance with its plain meaning.

(2) Where the plain meeting is in doubt, the courts will start the process of construction by attempting to discover, from the provisions enacted, the broad purpose of the legislation.

(3) Where a particular reading would advance the purpose identified, and would do no violence to the plain meaning of the provisions enacted, the courts will be prepared to adopt that reading.

(4) Where a particular reading would advance the purpose identified but would strain the plain meaning of the provisions enacted, the result will depend on the context and, in particular, on a balance of the clarity of the purpose identified and the degree of strain on the language.

(5) Where the courts conclude that the underlying purpose of the legislation is insufficiently plain, or cannot be advanced without an unacceptable degree of violence to the language used, they will be obliged, however, regretfully in the circumstances of a particular case, to leave to the legislature the task of extending or modifying the legislation."

Moreover, it is not the duty of the Court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provisions is plain and unambiguous. The Court cannot rewrite, recast or re-frame the legislation for the very good reason that it has no power to legislate, thus the power to legislate has not been conferred on the Courts. The Court cannot add words to a statute or read words that are not there. Assuming there is a defect or an omission in the words used by the legislature the Court could not get to its aid to correct or make up the deficiency.

The Court decide what the law is and not what it should be. The Courts of course adopt a construction which will carry out the obvious intention of the legislature but cannot legislate. But to invoke judicial activism and to set at naught, legislative judgment is to sub serve of the constitutional harmony and comity of instrumentalities. The above said view is reiterated by Hon'ble Supreme Court in the following cases:-

"(i) Union of India and another V. Deoki Nandan Agarwal , AIR 1992 SC 96

(ii) All India Radio V. Santosh Kumar and another (1998) 3 SCC 237

(iii) Sakshi V. Union of India and others,(2004) 5 SCC, 518

(iv) Pandian Chemicals Ltd. V. CIT (2003) 5 SCC 590

(v) Bhavnagar University V. Palitana Sugar Mills(P) and others, AIR 2003 SC 511.

(vi) J.P.Bansal Vs. State of Rajasthan,(2003) 5 SCC ,134."

In Nasiruddin Vs. Sita Ram Agarwal, AIR 2003 SC 1543, Hon'ble the Supreme Court has held that the Court can iron cut of the creases but cannot change the texture of the fabric. It cannot enlarge the scope of legislation or intention when the language of provisions is plain, unambiguous. It cannot add or subtract words to statue or read something into in which is not there. It cannot rewrite or recast the legislation.

And Privy Council in the case of Nazir Ahmad v. King Emperor (1936) 63 IA 372 held that it is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any Statute, the act must be done in that manner or not at all. (See Muhammad Husain Khan and others vs. Babu Kishva Nandan Sahai AIR 1937 Privy Council 233, Babu Verghese and others vs. Bar Council of Kerala and others (1999) 3 SCC 422).

In the case of Babu Verghese and others vs. Bar Council of Kerala and others (1999) 3 SCC 422, Hon'ble the Apex Court held as under :-

"It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any Statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor (1875) 1 Ch.D 426 which was followed by Lord Roche in Nazir Ahmad v. King Emperor (1936) 63 IA 372 who stated as under :

"Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all."

This rule has since been approved by this Court in Rao Shiv Bahadur Singh and Anr. v. State of Vindhya Pradesh AIR 1954 SC 322 and again in Deep Chand v. State of Rajasthan [1962] 1 SCR 662. These cases were considered by a Three-Judge Bench of this Court in State of Uttar Pradesh v. Singhara Singh and Ors. 1964] 4 SCWR 57 and the rule laid down in Nazir Ahmad's case (supra) was again upheld. This rule has since been applied to the exercise of jurisdiction by courts and has also been recognised as a salutary principle of administrative law."

As per intention of the legislature, while framing the Order 41 Rule 31 CPC, it is not mandatory on the part of the Appellate Court to frame the point of determination first and then to hear the learned counsel for the parties thus only requirement as per provisions of the said order is that the Appellate Court should contain the point of determination in its judgment.

Accordingly, while deciding the First Appeal under Section 96 CPC, the Appellate Court shall follow the following points as per provisions of Order 41 Rule 31 CPC :-

(a) Must frame the point of determination while deciding the First Appeal.

(b) In the judgment of the Appellate Court, the point of determination must exists.

In the instant matter, from the perusal of the appellate judgment dated 11.08.2016 passed in Regular Civil Appeal No.28/2009, the position which emerges out is that the same has been decided on the following points :-

"(a) अपीलार्थी/वादी की ओर से यह उठाया गया कि अवर न्यायालय ने अभिवचनो के आधार पर यह वाद - बिंदु विरचित ही नहीं किया कि क्या वादी/अपीलार्थी विवादित सम्पत्ति का सह क्रेता के रूप में अध्यासित सह स्वामी है |"

(b) वादी विवादित सम्पत्ति का अपंजीकृत वसीयत दिनांक ०९.११.०२ के आधार पर सह स्वामी है |"

Thus, the Appellate Court has followed the procedure as provided under Order 41 Rule 31 CPC i.e. framed the point of determination in order to decide the Regular Civil Appeal No.28/2009.

Accordingly, the substantial question of law as pressed by Shri Sudeep Seth, learned counsel for the appellant, namely, there is non compliance of Order 41 Rule 31 CPC is not substantial question of law in the instant matter.

List the present second appeal for hearing on the substantial questions of law framed by this Court vide order dated 03.11.2016 in the first week of September, 2017.

Interim order shall continue till the next date of listing.

Registrar General/Senior Registrar of this Court is directed to circulate the copy of this judgment to all district courts in order to ensure that while deciding the First Appeal under Section 96 CPC, the First Appellate Court must frame the point of determination as per the provisions of Order 41 Rule 31 CPC.

Order Date :-21.08.2017

Mahesh