Satya Narain vs Puttoo & Another
2021 Latest Caselaw 4526 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 21
 

 
Case :- SECOND APPEAL No. - 506 of 1980
 

 
Appellant :- Satya Narain
 
Respondent :- Puttoo & Another
 
Counsel for Appellant :- D.C. Mukherjee,Anoop Vajpayee,Atul Kumar Yadav,Jai Prakash Yadav
 
Counsel for Respondent :- J.P. Awasthi,D P Gupta,K.G. Misra,P.L. Mishra,Rajender Kumar,V.G.Misra
 

 
Hon'ble Jaspreet Singh,J.

Heard Sri Anoop Vajpayee, learned counsel for the appellant as well as Sri D.P. Gupta, learned counsel for the respondent.

The instant second appeal arises out of the judgment and decree dated 03.07.1980 passed by the District Judge, Hardoi in Civil Appeal No. 207 of 1979 by which it dismissed the appeal of the plaintiff and affirmed the judgment and decree dated 30.10.1979 passed by the Munsif, West Hardoi, dismissing the suit of the plaintiff-appellant bearing R.S. No. 54 of 1974.

Certain brief facts giving rise to the instant appeal is being noticed hereinafter:-

That Sri Gopal and Sri Satya Narayan, (original plaintiffs) had instituted a suit against Sri Puttu and Sri Pyare for possession in respect of the property bearing House No. 124 Ahata No. 144 and House No. 122, Ahata No. 142. It was pleaded that the plaintiffs are the owner of the said property whereas the defendants were the licensee and despite their license having been revoked, they refused to vacate the premises, accordingly, the suit was instituted which was registered as R.S. No. 54 of 1979 before the Court of Munsif, West, Hardoi.

The original defendants filed their written statements and contested the claim stating that the property in question was not properly indicated in the site plan annexed and forming part of the plaint in suit. It was also stated that the plaintiffs did not have the title to the property bearing House No. 124 and Ahata No. 144 as well as House No. 122, Ahata No. 142.

Upon exchange of pleadings, the Trial Court framed four issues:-

Primarily, the issue of relevance to the present controversy are issue no. (ii) which related to the fact whether the plaintiff is the owner of the property in question and (iii) the other issue was whether the defendant was a licensee.

Upon considering the evidence, the Trial Court recorded that in so far as House No. 124 and Ahata No. 144 is concerned, the plaintiff is the owner, however, the ownership of the plaintiff in respect of House No. 122 and Ahata No. 142 was not established and consequently the aforesaid issue no. (ii) was decided partially in favour of the plaintiff.

The Trial Court also held that the defendant was not the licensee and in view of the aforesaid, the Trial Court found that since the license in respect of defendant no. 1 was not established and that the plaintiff was not the owner of House No. 122 and Ahata No. 142, hence, he was not entitled to any relief whereas the defendant no. 1 who was in possession of Ahata No. 144 had already been dispossessed as at one point of time the proceedings had advanced ex-parte against the defendant and with the aforesaid findings, the suit was dismissed vide judgment and decree dated 30.10.1979.

The plaintiff being aggrieved against the said judgment and decree preferred a Regular Civil Appeal under Section 96 C.P.C. before the District Judge, Hardoi which also met the same fate. Being aggrieved against the aforesaid, the instant second appeal has been preferred.

Initially the instant second appeal was admitted by means of order dated 12.08.1980, however, no substantial questions of law was framed. Subsequently, by means of order dated 30.09.2017 after hearing the parties a coordinate Bench of this Court by means of order dated 19.09.2017 had framed the following substantial questions of law:-

"Whether it is mandatory on the part of the Appellate Court to frame the point of determination as per the provisions under Order 41 Rule 31 C.P.C. while deciding the first appeal ?"

The learned counsel for the appellant has stressed that the lower appellate court has not framed any point of determination. It is further urged that framing of points of determination is mandatory and so also the compliance of Order 41 Rule 31 C.P.C. and as there is no compliance of the aforesaid provisions hence on this score alone the second appeal deserves to be allowed and the matter requires to be remanded for its decision afresh after complying with the provisions of law.

The aforesaid issue whether it is mandatory for the Appellate Court to frame the points for determination has been considered by this Court in the case of Dalla Vs. Nanhu reported in 2019 (1) ADJ 546 wherein after considering various decisions of this Court as well as the Apex Court it was held as under and the relevant portion of the said report reads as under:-

"Thus what can be culled out from the decisions of the Hon'ble Apex Court is that the judgment of the first appellate Court must confirm to the mandate of Order XLI Rule 31 CPC as it is a duty cast on the first appellate Court to follow and perform.

The spirit of the provision is to ensure that the appellate Court must record reasons for the decisions and is to focus attention of the Court to rival contentions of the parties which arise for determinations and also to offer the litigating parties an opportunity of knowing and understanding the grounds upon which the decision is founded in a view to enable them to know the basis of decision and if they think proper and so advised to avail the remedy of second appeal conferred by Section 100 CPC."

"Significantly there is no phraseology which determines the manner and language which may be employed by the Court to frame such point of determination, except that from the judgment it should be clear that the Appellate Court is conscious of the points arising in the appeal for determination and so it be reflected in its consideration while recording reasons for its judgments. Thus, it cannot be said that there is non-compliance of Order XLI Rule 31 CPC.

This matter also needs to be seen from another angle inasmuch as Section 99 CPC provides as under:-

"99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction.-No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder or non-joinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the court:

Provided that nothing in this section shall apply to non-joinder of a necessary party."

It would indicate that a decision of a Court cannot be upset merely based on technical or immaterial defects. The Rules of procedure are made to sub-serve the ends of justice. The object of Section 99 CPC is to prevent technicalities from overcoming the ends of justice and from operating as a means of circuity of litigation where the decision is correct on merits and is within the jurisdiction of the Court, no error or defect or irregularity which does not go to the root of the matter will vitiate the order or invalidate the action. (See Mohammad Husain Khan vs. Babu Kishva Nandan Sahai, AIR 1937 PC 233 and Kiran Singh and others vs. Chaman Paswan and others, AIR 1954 SC 340).

Section 108 CPC provides that the provisions of this part relating to appeals from original decrees shall, so far as may be, apply to appeals from appellate decrees. It is in pursuance thereof that Order XLII Rule 1 CPC has been incorporated which is being reproduced as under:

"Order XLII. Procedure.-The rules of Order XLI shall apply, so far as many be, to appeals from appellate decrees."

Thus, it would been seen that where a judgment passed by the first appellate Court though otherwise conforms to the requirements as provided under Order XLI Rule 31 CPC, that is to say that the first appellate Court has made a narration of facts of the case of the parties to the lis, the issues arising in the case and submissions urged by the parties, the legal principles applicable to the issues and reasons in support of the findings in support of its conclusion, it would substantially comply with the provisions of Order XLI Rule 31 CPC and merely by not stating the points of determination in so many words, it would not make the judgment wholly void.

In the case of Jagdish Singh vs. Amresh and another, reported (2018 (36) LCD Page 2729, in Para-13, this Court held as under:-

"So far as the contention of learned counsel for the appellant that there is no statutory compliance of Order XLI Rule 31 CPC is concerned, suffice is to observe that the Apex Court in a recent judgment dated 4.8.2017 passed in Civil Appeal No. 9951 of 2017; U. Manjunath Rao vs. U. Chandrashekhar and Anr., has held that the compliance of Order XLI Rule 31 CPC will depend in the facts and circumstances of the case and in case there is substantial compliance of Order XLI Rule 31 no illegality can be attributed. In the present case there is substantial compliance of Order XLI Rule 31 CPC as such the contention raised has no force."

In order to successfully canvass the point of non-compliance of Order XLI Rule 31 CPC, it is not mere non framing of points of determination alone, but consequent failure of justice must also be established occasioned to a party.

The purpose and object of incorporating Section 99 CPC is to prevent mischief, which may be caused by the reversal of the decree in a case of this kind. Thus, unless and until the non-compliance of Order XLI and Rule 31 CPC is of such a nature that it affects the merits of the case or the jurisdiction of the Court or the soul of the provision is robbed by not discussing the bare facts, issues arising therefrom, the rival points urged and recording of reasons upon which the judgment is based, till then minor infraction of the aforesaid provision will not give a latitude to a party to assail a judgment and seek its reversal only on this infraction under Section 100 CPC.

Needless to say that Rules of procedure though couched in a mandatory format must be given a reasonable construction so that it may not cause an ultimate failure of justice. Thus, merely non-framing of the point of determination without any consequent failure of justice and if the judgment otherwise complies with the mandate of narration of facts, consideration of submissions and recording of reasons as required in law will not cause the aforesaid issue to be termed as a substantial question of law."

Thus, the clear exposition of law laid down by this Court clearly answers he question posed before this Court. The aforesaid decision of Dalla (supra) has also been followed by this Court in a recent decision in the case of Shiv Darshan Yadav Vs. Executive Engineer Electricity Distribution Div.-1, Faizabad reported in 2021 (3) ADJ, Pg. 52 (LB).

The learned counsel for the appellant could not bring any authority to the notice of this Court wherein the aforesaid proposition has been diluted or it has been held otherwise. Moreover, the learned counsel for the appellants could not dispute the fact that the judgment passed by the lower appellate court has noticed the narration of facts, issues involved, the evidence before it and therefore it has recorded its own findings affirming the judgment of the trial court. The learned counsel for the appellant could not point out any prejudice which may have been caused simpliciter for want of framing of points of determination, hence, in view of the above discussion, this Court is of the considered opinion that the instant second appeal has no merits and is liable to be dismissed.

Accordingly, the second appeal is dismissed.

In the facts and circumstances, there shall be no order as to costs.

Office is directed to remit the lower court records to the court concerned within two weeks.

Order Date :- 24.3.2021

Asheesh