Shrawan Kumar Alias Raja vs Amar Nath And 2 Others
2017 Latest Caselaw 5378 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 6
 

 
Case :- SECOND APPEAL No. - 247 of 2005
 

 
Appellant :- Shrawan Kumar Alias Raja
 
Respondent :- Amar Nath And 2 Others
 
Counsel for Appellant :- Avadhesh Kumar
 
Counsel for Respondent :- Upendra Sharma,Piyush Kumar Singh,Ratnesh Trivedi
 

 
Hon'ble Anant Kumar,J.

(1) The present Second Appeal under Section 100 C.P.C. has been filed against judgement and decree dated 23.01.1993 passed by Munsif, Lakhimpur Kheri in respect of Original Suit No. 227/90 (Amar Nath versus Shrawan Kumar @ Raja) whereby the suit of the plaintiff was decreed and defendant nos. 2 and 3 were directed to register the disputed sale deed dated 8.6.88 in favour of the plaintiff as well as against judgement and decree dated 24.03.2005 passed by the Uppar Civil Judge (Senior Division), Lakhimpur Kheri, whereby the first appeal being Civil Appeal No.23 of 1993 filed by the defendant/ appellant against the said judgement, was dismissed.

(2) Following substantial question of law has been framed in this appeal :

II. Whether the judgement and decree of the lower appellate court against the mandatory provisions of Order 41 Rule 31 C.P.C. for not framing the point of determination are vitiated and is not sustainable under law ?

III. Whether after framing new Issues by the appellate court on filing counter claim by the defendant No.1 / appellant and its reply by the plaintiff / respondent No.1, the compliance of Order 41 Rule 25 C.P.C. was required by the appellate Court ?

(3) Heard Sri Avadhesh Kumar, learned counsel for the appellant and Shri Upendra Sharma, learned counsel for respondents and perused the record.

(4) It is evident from the judgement of the Trial Court that plaintiff Amar Nath had filed a suit for mandatory injunction with the relief that Defendant Nos. 2 and 3 may be directed to register the sale deed dated 8.6.88 in respect of 1/12 portion of land of Plot No.277 area 3.09 Acre and Plot No.280 area 9.31 Acre in Village - Mauzamabad, Pargana - Shri Nagar, Tahsil - Lakhimpur, District - Kheri. The suit was contested by the defendants, however, after hearing the parties, the Trial Court decreed the suit of the plaintiff and issued a direction to Defendant Nos. 2 and 3 to register the sale deed dated 8.6.88. Aggrieved by the said order, a Civil Appeal No.23/93 was filed by Shravan Kumar, defendant No.1, however, the appeal was also dismissed vide order of Lower Appellate Court dated 24.03.2005. Aggrieved by the same, this second appeal has been filed with the above point for determination.

(5) At the very outset, learned counsel for the appellant has stated that under order 41 Rule 31 CPC, it was necessary for the first appellant court to frame point for determination, which reads as under:

"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 there in."

(6) So far as, the determination of point No.1 is concerned, it is argued by learned counsel for the appellant that as per provision of order 41 Rule 31 C.P.C., it was mandatory on the part of the first appellate Court to frame the point for determination, but first appellate Court has failed to frame any point for determination and has decided the first appeal in cursory manner, even evidence available on record was not considered and dismissed.

(7) To give strength to the said contention, learned counsel for the appellant has cited a case law reported in 2017 (35) LCD 2226; Kuldeep Saxena V. Smt. Archana Saxena and others, wherein this Court held as under:

"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.

(8) In view of above, it is evident that it is mandatory on the part of the First Appellate Court to frame point for determination before deciding the appeal and the judgment of the appellate court should state the same. Since the first appellate court failed to frame the said point for determination, on this point, the judgement of appellate court is defective and this point is decided in favour of the appellant.

(9) The second point for determination as framed in the memo of appeal is that "(iii) Whether after framing new Issues by the appellate court on filing counter claim by the defendant No.1 / appellant and its reply by the plaintiff / respondent No.1, the compliance of Order 41 Rule 25 C.P.C. was required by the appellate Court ?"

(10) Learned counsel for the appellant in this regard has made a reference to Order 41 Rule 25 C.P.C., which enumerates as under :-

25. Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from.- Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor [within such time as may be fixed by the Appellate Court or extended by it from time to time.

(11) In this regard a reference has been made to the order of the first appellate court passed on 03.07.1997, whereby the first appellate court had framed five additional issues and had forwarded the same to the trial court for deciding the same. The trial court after hearing the parties had decided these issues vide its order dated 31.01.2005 and sent back the record of the same to the first appellate court which as per the order-sheet of the first appellate court was received on 15.02.2005. The submission of learned counsel for the appellant is that while deciding the appeal, the first appellate court has not taken any reference of the said decision of the trial court and even the first appellate court while deciding the appeal had not taken any cognizance of the framing of issues and the decision of the trial court thereon. It appears that the first appellate court had completely overlooked its earlier proceedings and had failed to take into account the said additional issues which were framed by the first appellate court itself and were decided by the trial court as per the direction of the appellate court. So, to my view the trial court has committed a manifest error on the face of record in not taking into account the order of the trial court deciding the additional issues while deciding the first appeal. On this count also the order of the first appellate court is bad in the eyes of law and this substantial question of law is also decided in favour of the appellant.

(12) In view of the fact it is apparent that the trial court has committed an error in law in not complying with the provisions of Order 41 Rule 31 and has not framed the point for determination as stated above. This apart the first appellate court has also committed an error in not taking into account the additional issues which were decided by the trial court as per the direction of the appellate court. On both counts the order of the first appellate court dated 24.03.2005 is not sustainable in the eyes of law and is liable to be set aside.

(13) Accordingly, the second appeal is allowed. Judgement and decree dated 24.03.2005 passed by the Uppar Civil Judge (Senior Division), Lakhimpur Kheri in Civil Appeal No.23/93, is set aside and the matter is remanded back to the first appellate court to decide the appeal afresh in the light of observations made above. The parties shall appear before the first appellate court on 6th December, 2017.

(14) Office is directed to send back lower court record immediately without fail.

(15) Since the matter is old one the first appellate court will take every endeavor to decide the appeal within six months from the date of receiving the lower court record before it.

(16) Till then the parties shall maintain status quo regarding the property in question and there will not be any alienation or transfer of the property during the pendency of the appeal.

Order Date :- 12.10.2017

S. Kumar