Mahaveer vs Heera Lal
2018 Latest Caselaw 1867 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
A.F.R.
 
Court No. - 31
 
Case :- SECOND APPEAL No. - 757 of 2018
 
Appellant :- Mahaveer
 
Respondent :- Heera Lal
 
Counsel for Appellant :- Shailendra Singh,Ram Kishore Pandey
 
Counsel for Respondent :- Lallan Prasad,Shiv Nath Singh
 
And 
 
Case :- SECOND APPEAL No. - 758 of 2018
 

 
Appellant :- Mahaveer
 
Respondent :- Heera Lal
 
Counsel for Appellant :- Shailendra Singh
 
Counsel for Respondent :- Lallan Prasad,Shiv Nath Singh
 

 
Hon'ble Mrs. Vijay Lakshmi,J.

1. Vakalatnama filed today by Shri Shiv Nath Singh in Second Appeal No.758 of 2018 on behalf of the respondent is taken on record.

2. Heard learned counsel for the appellant and learned counsel for the respondent on the point of admission. Perused the record.

3. Second Appeal No.757 of 2018 arises out of Original Suit No.1228 of 1995 and Second Appeal No.758 of 2018 arises out of Original Suit No.595 of 1995. Both these suits were decided by a composite judgment dated 31.3.2010 by learned Civil Judge Senior Division, whereby the Suit No.595 of 1995, filed by the appellant Mahaveer seeking relief of permanent injunction was decreed and Suit No.1228 of 1995 filed by Heera Lal (respondent in both these appeals) for permanent injunction was dismissed.

4. Aggrieved by the dismissal of suit filed by him and decreeing of the suit filed by Mahaveer, the respondent Heera Lal filed two appeals, which were decided together by the impugned judgment and order dated 23.4.2018, whereby the learned lower appellate court allowed both the appeals filed by Heera Lal and restrained the appellant Mahaveer from interfering in the possession of Heera Lal on land no.2259 area 102 hectare. Now, Mahaveer is before this Court by means of the aforesaid second appeals. As the controversy involved and parties are the same, both these appeals are being decided together by this common judgment.

5. The legality and correctness of the impugned judgment passed by the learned lower appellate court, has been challenged in this second appeal mainly on the ground that the mandatory provisions of Order 41 Rule 31 C.P.C. has not been complied with by the learned lower Appellate Court.

6. As the issue involved is purely legal, I with the consent of learned counsel for both the parties, proceed to hear and decide this matter finally at this stage.

7. The following substantial question of law is involved in this matter which needs consideration:

(1) Whether the judgment passed by learned Lower Appellate Court is vitiated on account of non-compliance of mandatory requirement of Order 41 Rule 31 C.P.C.?

8. Learned counsel for the appellant has submitted that compliance of Order XLI Rule 31 C.P.C. is mandatory in nature and its non-compliance vitiates the judgment. He has submitted that the use of the word "shall" in Rule 31 C.P.C. itself reflects its mandatory character. He has further submitted that a perusal of the impugned judgment passed by the learned lower appellate court, clearly shows that the learned lower appellate court has not framed any point for determination and has passed the impugned judgment in a mechanical manner by repeating the same issues framed by the trial court and also the findings recorded by the learned trial court. He has further contended that as per settled legal position, learned lower appellate court was bound to give a well reasoned judgment with conscious application of mind on all the issues before passing the judgement of reversal.

9. Per contra, learned counsel for the respondent has contended that there is substantial compliance of Order 41 Rule 31 C.P.C. by the lower appellate court and as per the law laid down by the Hon'ble Apex Court in G.Amalorpavam and others Vs. R.C. Diocese of Madurai 2006 (3) SCC 224, the non-compliance of the provisions of Order XLI Rule 31 C.P.C. will not vitiate the judgment so as to make it wholly void and it may be ignored if there has been substantial compliance with it.

10. Considered the rival submissions advanced by learned counsel for the parties.

11. Order XLI Rule 31 C.P.C. reads as follows:

"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."

12. Thus, framing of point of determination is necessary. However, the Hon'ble Apex Court in the case of G.Amalorpavam (supra) has laid down the law that if it is possible to make out from the judgment that there is substantial compliance with the said requirement and that justice has not thereby suffered, that would be sufficient.

13. According to the Hon'ble Apex 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 having 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."

14. In Santosh Hazari Vs. Purushottam Tiwari, 2001 (3) SCC 179 dealing with question of compliance of Order 41 rule 31 C.P.C., the Apex Court observed as under:

"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 whereas 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."

15. In Union of India and another Vs. Ranchod and others 2007 (14) SCC 326 referring to earlier decisions in Santosh Hazari and G. Amalorpavam, the Supreme Court found that there was a complete non-compliance of Order 41 Rule 31, hence set aside the judgment of Appellate Court observing in para 10 of the judgment as under:

"There being total non-compliance of the mandatory provisions of Order XLI Rule 31 C.P.C., we have no option but to set aside the judgment of the High Court and remand the matter to the High Court for fresh consideration of the appeals."

16. In H.Siddiqui Vs. Ramalingam, 2011 (4) SCC 240, the Court after referring Order 41 Rule 31 C.P.C., in para 18 of the judgment observed as under:

"18. 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."

17. Now, reverting to the case in hand, a perusal of the impugned judgment passed by the learned lower appellate court, clearly shows that the learned lower appellate court has not complied with the provisions of Order XLI Rule 31 C.P.C. Neither any point for determination has been framed by the learned lower appellate court nor any reason has been given in the judgment as to why it has dismissed the appeal or why such judgment has been passed. The learned lower appellate court, without application of mind has copied the plaint averments, averments made in the written statement and the findings recorded by the learned trial court on the issues framed. Thereafter, without assigning any reason and without discussing the controversy involved, the court below has dismissed the appeal in a cursory manner, thus depriving the appellant of his valuable right. Therefore, it cannot be said that there was even a substantial compliance of Order XLI Rule 31 C.P.C.

18. As a result, the question formulated above is answered in favour of the appellants.

19. Accordingly, both the appeals are allowed. The impugned judgement and order dated 23.4.2018 passed by the lower appellate court, are hereby set-aside and the Civil Appeal Nos.199 of 2010 (Heera Lal Vs. Mahaveer) arising out of Original Suit No.1228 of 1995 and Civil Appeal No.46 of 2010, (Heera Lal Vs. Mahaveer) arising out of Original Suit No.595 of 1995 are hereby restored to original number.

20. The learned lower appellate court is directed to decide both the appeals afresh in accordance with law expeditiously, preferably within a period of three months from the date of production of certified copy of this order.

Order Date:-7.8.2018-SB