Yusuf Husain vs Shyam Lal
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Allahabad High Court

Yusuf Husain vs Shyam Lal on 5 April, 2025

Author: Abdul Moin

Bench: Abdul Moin

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2025:AHC-LKO:19116
 
Court No. - 5
 
Case :- SECOND APPEAL No. - 207 of 2024
 
Appellant :- Yusuf Husain
 
Respondent :- Shyam Lal
 
Counsel for Appellant :- Adnan Ahmad,Mohd Nazish Iqbal
 
Counsel for Respondent :- Vinay Kumar Verma,Raman Kumar,Shashank Verma
 

 
Hon'ble Abdul Moin,J.
 

1. List revised.

2. None has appeared on behalf of the respondents even in the revised call despite the names of Shri Vinay Kumar Verma, Shri Raman Kumar and Shri Shashank Verma being shown from the side of respondent and neither there is any application or request for adjournment of the case.

3. Accordingly, the Court proceeds to hear and decide the matter finally.

4. This second appeal has been admitted by this Court vide order dated 21.11.2024 on the following substantial question of law:

"Whether the first appellate court has passed the impugned judgment and order without considering the grounds raised by the appellant and complying the provisions of Order-41, Rule-31 of the Civil Procedure Code? if so, it's effect."

5. The contention of learned counsel for the appellant is that the appellant had filed an Original Suit No.2000176 of 2005 in Re: Yusuf Hussain vs. Shyamlal praying for permanent prohibitory injunction against the respondent with regard to Plot No.317. The said suit was dismissed vide judgment and order dated 23.05.2023, a copy of which is part of the appeal.

6. Being aggrieved, the appellant filed Regular Civil Appeal No.61 of 2023 in Re: Yusuf Hussain Vs. Shyam Lal before the learned appellate court. The learned appellate court, vide judgment and decree dated 21.10.2024, has dismissed the appeal and hence, this second appeal.

7. Learned counsel for the appellant has placed reliance on the provisions of Order-41 Rule-31 of the Civil Procedure Code (CPC) to argue that the judgment of the appellate court has to be in writing and has to state (a) the points of determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the judgment must specify the relief to which the appellant is entitled to.

8. The argument of the learned counsel for the appellant is that the learned appellate court has passed the impugned judgment and decree dated 21.10.2024 rejecting the appeal filed by the appellant without adhering to the provisions of the Order-41 Rule-31 of the CPC.

9. Elaborating the same, the argument of the learned counsel for the appellant is that a perusal of the judgment of learned trial court dated 23.05.2023 would indicate that the Issue No.1 as framed by the learned trial court was as to whether the plaintiff / appellant is the owner in possession of the disputed land, as indicated in paragraph 4 of the plaint.

10. The learned appellate court has framed the point of determination (internal page 6 of the judgment) as to whether the appellant / plaintiff is the owner in possession of the disputed property. The findings, which have been given on the aforesaid point of determination by the learned appellate court, are verbatim reproduction of the findings that had been given by the learned trial court on the aforesaid point which, thus, indicates patent non application of mind on the part of the learned appellate court.

11. Placing reliance on the judgment of the Hon'ble Supreme Court in the case of U. Manjunath Rao vs. U. Chandrashekar and Another 2017 (15) SCC 309, the argument is that there cannot be any occasion for the learned appellate court to have simply copied and pasted the findings recorded by the learned trial court and to have dismissed the appeal which itself reflects patent non application of mind by the learned appellant court and as such, on this ground alone, the impugned judgment merits to be set aside.

12. As nobody has responded on behalf of the respondents, as such, the Court has itself gone through the judgments of the learned trial court dated 23.05.2023 as well as the appellate court dated 21.10.2024 and also perused the records.

13. A perusal of the judgment passed by the learned trial court would indicate that the learned trial court had framed an issue namely Issue No.1 thatas to whether the plaintiff / appellant is the owner in possession of the disputed land, as indicated in paragraph 4 of the plaint, and thereafter had given its finding, as finds place in the judgment of the learned trial court from paragraphs 12 to 15 of the judgment. The learned trial court dismissed the suit filed by the plaintiff / appellant.

14. Being aggrieved, the appellant filed an appeal before the learned appellate court. The learned appellate court also framed the points of determination of which the first point of determination wasas to whether the appellant / plaintiff is the owner in possession of the disputed property. Thereafter, the learned appellate court has given its finding on the said point of determination, as emerges from a perusal of the judgment of the learned appellate court (internal page 6 to 10 of the judgment).

15. When the aforesaid findings of the learned appellate court are seen vis-a-vis findings of the learned trial court recorded on issue No.1, the Court finds that it is a verbatim reproduction of the findings that have been recorded by the learned trial court on the aforesaid issue. This, thus, indicates that the learned appellate court has patently failed to apply its mind on the point of determination that had been framed by it rather has conveniently copied and pasted the findings given by the learned trial court in this regard which cannot be said to be an application of mind by the learned appellate court.

16. The Hon'ble Supreme Court in the case of U. Manjunath Rao (supra) has held as under:

"13. On a perusal of the said Rule, it is quite clear that the judgment of the appellate court has to state the reasons for the decision. It is necessary to make it clear that the approach of the first appellate court while affirming the judgment of the trial court and reversing the same is founded on different parameters as per the judgments of this Court. In Girijanandini Devi v. Bijendra Narain Choudhary, AIR 1967 SC 1124, the Court ruled that while agreeing with the view of the trial court on the evidence, it is not necessary to restate the effect of the evidence or reiterate the reasons given by the trial court. Expression of general agreement with reasons given in the trial court judgment which is under appeal should ordinarily suffice. The same has been accepted by another three-Judge Bench in Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179. However, while stating the law, the Court has opined that expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage to be adopted by the appellate court for shirking the duty cast on it. We are disposed to think, the expression of the said opinion has to be understood in proper perspective. By no stretch of imagination it can be stated that the first appellate court can quote passages from the trial court judgment and thereafter pen few lines and express the view that there is no reason to differ with the trial court judgment. That is not the statement of law expressed by the Court. The statement of law made in Santosh Hazari has to be borne in mind.

14. In this regard, a three-Judge Bench decision in Asha Devi v. Dukhi Saolo (1974) 2 SCC 492 is worthy of noticing, although the context was different. In the said case, the question arose with regard to power of the Division Bench hearing a letters patent appeal from the judgment of the Single Judge in a first appeal. The Court held that the letters patent appeal lies both on questions of fact and law. The purpose of referring to the said decision is only to show that when the letters patent appeal did lie, it was not restricted to the questions of law. The appellant could raise issues pertaining to facts and appreciation of evidence. This is indicative of the fact that the first appellate court has a defined role and its judgment should show application of mind and reflect the reasons on the basis of which it agrees with the trial court. There has to be an "expression of opinion" in the proper sense of the said phrase. It cannot be said that mere concurrence meets the requirement of law. Needless to say, it is one thing to state that the appeal is without any substance and it is another thing to elucidate, analyse and arrive at the conclusion that the appeal is devoid of merit.

15. In the case at hand, as we have noted earlier, the learned Judge has really not ascribed any reason. There has been no analysis of facts or law. There is no discussion with regard to the points urged. While agreeing with the general approval of reasons to support the conclusions of the judgment in appeal, the High Court has to keep in view the language employed in Order 41 Rule 31 CPC and the view expressed in Santosh Hazari. Analysis and reason are to be manifest. When that is not done, needless to say, the judgment of the High Court becomes indefensible."

17. Accordingly, when the facts of the instant case are seen in the context of the law laid down by the Hon'ble Supreme Court in the case of U. Manjunath Rao (supra) as well as finding of the learned appellate court on the point of determination vis-a-vis the findings as recorded by the learned trial court on Issue No.1, the court finds that there has been a patent non application of mind of the learned appellate court and it having failed to adhere to the provisions of Order-41 Rule-31 of the CPC. The question of law stands answered accordingly.

18. Keeping in view of the aforesaid discussion, the appeal is allowed. The judgment and decree dated 21.10.2024 passed by the learned appellate court is set aside. The matter is remitted to the learned appellate court to pass a fresh order in accordance with law and strictly adhering to the provisions of Order-41 Rule-31 of the CPC. Let an order in this regard be passed, after hearing all the parties concerned, within a period of 6 months from the date of filing of a certified copy of this order before the learned appellate court provided there is no legal impediment.

19. The records be returned back to the learned trial court.

Order Date :- 5.4.2025/S. Shivhare