Gujarat High Court
Ranabhai Alias Gagubhai Gigabhai ... vs State Of Gujarat on 20 April, 2023
Bench: Rajendra M. Sareen
C/SA/79/2023 ORDER DATED: 20/04/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 79 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/SECOND APPEAL NO. 79 of 2023
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RANABHAI ALIAS GAGUBHAI GIGABHAI MODHWADIYA
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MS MEGHNA PATEL for
MR ASHISH M DAGLI(2203) for the Appellant(s) No. 1,2,3,4
MS MEGHA CHITALIYA AGP for the Respondent(s) No. 1
MR TUSHAR L SHETH(3920) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
Date : 20/04/2023
ORAL ORDER
1. ADMIT. Ms.Megha Chitaliya, learned AGP waives
service of notice of admission on behalf of the respondent
No.1 and Mr.Tushar Sheth, learned advocate waives service
of notice of admission on behalf of the respondent No.2.
2. Present Second Appeal under section 100 of the Code
of Civil Procedure has been preferred by the appellants -
original appellants / plaintiffs against the Judgement and
Decree dated 12/04/2022 passed by the learned 2 nd
Additional District Judge, Keshod in Regular Civil Appeal
No.11 of 2018, by which the learned first appellate court
dismissed the appeal confirming the judgement and decree
dated 05/03/2018 passed by the learned Principal Senior
Civil Judge, Keshod in Regular Civil Suit No.119 of 2012
(Old RCS No.94/2014), by which the learned Civil Judge
C/SA/79/2023 ORDER DATED: 20/04/2023
dismissed the suit.
3. The appellate Court framed the following Issues :-
"(1) Whether the appellants proves that the
Judgement and Decree passed by the learned
Trial Court is erroneous, illegal and the same is
required to be quashed and set aside?
(2) What Order?"
3. Heard Ms.Meghna Patel, learned advocate appearing
on behalf of Mr.Ashish Dagli, learned advocate for the
appellants, Ms.Megha Chitalia, learned AGP for the
respondent No.1 - State and Mr.Tushar Sheth, learned
advocate for the respondent No.2.
4. Ms. Meghna Patel, learned advocate for the appellants
has vehemently submitted that the learned first appellate
court has not given its own findings and has not complied
with the provisions of Order 41 Rule 31 of C.P.C., though
the same is mandatory.
5. Ms.Megha Chitalia, AGP for the respondent No.1 State
and Mr.Tushar Sheth, learned advocate for the respondent
No.2 have submitted that the impugned order passed by the
learned appellate court is just and proper and do not call for
interference.
6. Considering the above fact the First Appellate Court
C/SA/79/2023 ORDER DATED: 20/04/2023
has to apply its mind independently and frame the issues
appropriately and independently. The provisions of Order 41
of C.P.C. provides that how the Appellate Court has to deal
with the Appeal under Section 96 of the Code and the
procedure is to be followed as per Order 41 of C.P.C. 11. In
the recent judgment of the Hon'ble Apex Court in case of K.
Karuppuraj vs M. Ganesan reported in 2021 (10) SCC
777, the Hon'ble Apex Court has held that while deciding
the First Appeal, compliance of Order 41 Rule 31 of C.P.C.
is mandatory.
7. In the recent judgment of the Hon'ble Apex Court in
case of K. Karuppuraj (supra) and Judgments of this Court,
which are referred hereinafter, time and again reiterated by
this Court and Hon'ble Apex Court that how and in which
manner the First Appellate Court has to decide the Appeal
under Section 96 of the Code.
8. In the decision in case of Budhabhai Bhikhabhai
Parmar and others vs. Shantaben WD/o Bhalabhai
Becharbhai reported in 2013 (4) GLR 3595, the Court has
held as under:
[4.0] Having heard Shri Adeshra, learned advocate
appearing on behalf of the appellants and Shri
Bukhari, learned advocate appearing on behalf of
the respondent and considering the impugned
judgment and order passed by the learned
Appellate Court it appears to the Court that the
impugned judgment and order passed by the
C/SA/79/2023 ORDER DATED: 20/04/2023
learned Appellate Court cannot be sustained. From
the impugned judgment and order passed by the
learned Appellate Court it appears that the learned
Appellate Court has disposed of the Appeal
preferred under Order 41 of the CPC read with
Section 96 in a most casual and perfunctory
manner. Apart from the fact that the learned
Appellate Court has not framed the points for
determination as required under Order 41 Rule 31
of the CPC, it appears that even the learned
Appellate Court has not exercised the powers
vested in it as a first Appellate Court. Learned
Appellate Court has neither re-appreciated the
entire evidence on record nor has given any
specific findings on the issues which were even
raised before the learned trial Court. The Hon'ble
Supreme Court in the case of B.V. Nagesh and
Anr. vs. H.V. Sreenivasa Murthy reported in
(2010)13 SCC 530, in para 4 has observed and
held as under:
"4. The appellate Court has jurisdiction to
reverse/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 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
C/SA/79/2023 ORDER DATED: 20/04/2023
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 v. Sangram, 2001(4)
SCC 756]."
[4.1] In the said decision, the Hon'ble Supreme
Court has also considered how the regular First
Appeal is to be disposed of by the first Appellate
Court. In para 3 of the said decision, the Hon'le
Supreme Court has observed and held as under:
3. How the regular first appeal is to be
disposed of by the appellate court/High
Court has been considered by this Court
in various decisions, Order 41 CPC deals
with appeals from original decrees. Among
the various rules, Rule 31 mandates that
C/SA/79/2023 ORDER DATED: 20/04/2023
the judgment of the appellate court 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.
[4.2] Even in the recent decision in the case of H.
Siddqui (Dead) By L.Rs. vs. A. Ramalingam
reported in 2011(2) GLR 1429 in para 21, the
Hon'ble Supreme Court has observed and held as
under:
"21. 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
C/SA/79/2023 ORDER DATED: 20/04/2023
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 : 2007 (10)
C/SA/79/2023 ORDER DATED: 20/04/2023
SCC 296)"
[4.3] It also cannot be disputed that while deciding
and disposing of the First Appeal under Order 41
read with Section 96 of the CPC, the learned
Appellate Court is required to frame the points for
determination as envisaged under Order 41 Rule
31 of the CPC. However, as observed by the
Hon'ble Supreme Court in the case of G.
Amalorpavam and Ors. vs. R.C. Diocese of
Madurai and Ors. reported in (2006)3 SCC 224, if
from the judgment and order passed by the
learned Appellate Court it is found that the
learned Appellate Court has applied mind and
decided all the issues and has given his own
findings solely on the ground that the points for
determination are not framed, the judgment and
order passed by the learned Appellate Court is not
vitiated. In para 8, the Hon'ble Supreme Court has
observed and held as under:
8. 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. Noncompliance 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
C/SA/79/2023 ORDER DATED: 20/04/2023
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
C/SA/79/2023 ORDER DATED: 20/04/2023
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 Sec.
100 of the Code of Civil Procedure.
[4.4] However, considering the impugned judgment
and order passed by the learned Appellate Court
and as stated herein above, the learned Appellate
Court has not given its own findings on the issues
involved in the matter and even which were
framed by the learned trial Court. There is no
appreciation / reappreciation of evidence on record
by the learned Appellate Court and the learned
Appellate Court has disposed of the First Appeal
under Order 41 read with Section 96 of the CPC in
a most casual and perfunctory manner and that
too only in one paragraph and therefore, the
impugned judgment and order passed by the
learned Appellate Court dismissing the Appeal
cannot be sustained and the same deserves to be
C/SA/79/2023 ORDER DATED: 20/04/2023
quashed and set aside and the matter is required
to be remanded to learned Appellate Court to
decide and dispose of the same in accordance with
law and on merits and after framing the required
points for determination as envisaged under Order
41 Rule 31 of the CPC and on reappreciation of the
entire evidence on record and giving its own
findings on all the issues/points for determination.
As such the learned advocate appearing on behalf
of the respondent original defendant is not in a
position to dispute the above. He is also not in a
position to dispute that the learned Appellate Court
has not reappreciated the entire evidence on
record and has not given its own findings on all
issues which is the requirement while deciding the
First Appeal and as an first Appellate Court."
9. In the decision in case of Lakhu Karman Bharwad vs.
State of Gujarat reported in 2015 LawSuit(Guj) 855, the
Court has held as under:
"10. Now considering the points which are
formulated by the lower Appellate Court, I am of
the opinion that, the lower Appellate Court has
committed error in not properly formulating the
points for determination. The lower Appellate Court
ought to have framed points for determination in
accordance with Order 41 Rules 11, 14, 15 and 31
of the Code as well as Para No. 414 of the Bombay
Civil Manual and ought to have given reasons for
C/SA/79/2023 ORDER DATED: 20/04/2023
its decision on each point independently.
The Apex Court in the case of H. Siddiqui (dead) by
LRs. (supra) in the context of Order 41 Rule 31 of
the Code has observed in paras 21 and 22 as
under:
"21. The said provisions provided 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 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 asses 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
C/SA/79/2023 ORDER DATED: 20/04/2023
reasons for its decision on such 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: Sukhpal Singh v.
Kalyan Singh, AIR 1963 SC 146; Girijanandini
Devi v. Bijendra Narain Choudhary, AIR 1967 SC
1124; G. Amalorpavam v. R.C. Diocese of Madurai,
2006 (3) SCC 224; Shiv Kumar Sharma v. Santosh
Kumari, 2007 (8) SCC 600; and Gannmani
Anasuya v. Parvatini Amarendra Chowdhari, AIR
2007 (SC 2380: 2007 (10) SCC 296. 22.
22. In B.V. Nagesh v. H.V. Sreenivasa Murthy, JT
2010 (10) SC 551: 2010 (13) SCC 530, while
dealing with the issue, this Court held as under:
4. 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
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
C/SA/79/2023 ORDER DATED: 20/04/2023
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 v. Sangram, 2001
(4) SCC 756."
11. In a recent case of Budhabhai
Bhikhabhai Parmarand and another Vs.
Shantaben Wd/o Bhalabhai Becharbhai,
2013(1) G.L.H.127, this Court, while
dealing with the provision of Section 100 of
the Code of Civil Procedure and the
provisions of order 41, Rule 31 of the Code
by relying upon the case of H. Siddiqui
(dead) by LRs. (supra), has held that the
first Appellate Court has to decide the
Appeal in accordance with law on merits
and after framing points for determination
as envisaged under Order41, Rule31 of the
C/SA/79/2023 ORDER DATED: 20/04/2023
Code. It has also been observed that on
each point, the Appellate Court has to give
its own finding that too after reappreciation
of entire evidence on record.
12. In addition to the above principles of
provisions of Order 41 Rule 31 of the Code,
the Bombay Civil Manual, which has been
made applicable to the State of Gujarat,
provides in detail the Civil Courts
functioning. Different Chapters provided
therein make the provisions of the Code
amply clear that how the original Court,
first appellate Court and second appellate
Court has to function. To ensure the
uniformity with regard to practice and
procedure of civil proceedings, the Manual
is an exhaustive guiding factors for aCourt,
who is deciding disputes between the
parties of a civil nature.
12.1. As far as Appeals arising from the
Trial Courts judgment, decree and order
are concerned, ChapterXX of the Code
deals with the same. Para/Rule414 of the
Bombay Civil Manual provides about the
manner, in which the appellate Court
should frame the suitable points for
determination while deciding the Appeal.
Rule 414 of the Bombay Civil Manual
C/SA/79/2023 ORDER DATED: 20/04/2023
reads as under:
"414. The appellate Court should frame
suitable points for determination in appeals
in accordance with the same principles on
which issues are framed in the trial Court."
12.2. In my opinion, combined reading of
the Order41 Rule31 of the Code as well as
Rule414 of the Bombay Civil Manual make
it clear that the first appellate Court is
bound to frame points for consideration as
if it is framing the issues provided under
the provisions of the Code. Paras/Rules 53
and 54 of the Bombay Civil Manual
provides the method of settlement/framing
issues. Rules 53 and 54 read as under:
"53. Issues should be framed by the
Presiding Judge on the date fixed for the
purpose. They indicate the points in
controversy, on which the parties are to go
trial and give them notice of the matters
which they are required to establish by
adducing evidence or otherwise. No trial is
likely to be satisfactory unless the issues
are complete and precise. It should be
observed that a party has to produce
evidence in support of the issues, which he
is bound to prove (Order XVIII, rules 2 and
C/SA/79/2023 ORDER DATED: 20/04/2023
3) and that the judgment of the Court shall
record its findings on the issues (Order XX,
rule5). These provisions should make it
plain that an essential preliminary to a
satisfactory trial is the settlement of full
and precise issues. A judicious use of the
provisions of rule 1 of Order X and subrule
(5) of rule 1 of Order XIV may be found of
help for collecting material necessary for
framing issues in seriously contested
cases. The duty of framing issues under
the law must be performed by the Court
and the presiding Judge should not leave it
to the parties or lawyers to frame the
issues but should apply his own mind to
the subject. There is however, no reason
why the Court should not take suggestions
from the parties as to the issues to be
framed.
54. In framing issues the Court should
proceed as follows:
(a) Every issue of fact shall be so framed
as to indicate on whom the burden of proof
lies.
(b) Every issue of law shall be so framed
as to indicate the precise question of law to
be decided. Note: When the claim or any
portion of it is alleged to be barred by any
C/SA/79/2023 ORDER DATED: 20/04/2023
law the issue shall also state the Act and
section or rule or other provision under
which it is so barred.
(c) When the question is whether a certain
section of law applies, the issue should be
framed in the words of that section e.g.,if
the question is whether a transfer should
be set aside under section 54 of the
Provincial Insolvency Act, the issue should
not be Is the transfer bogus and
fraudulent?
(d) Issues should be selfcontained. The
framing of issues such as Is the sale liable
to be set aside for the reasons stated by
the defendant in his written statement,
dated... should be avoided.
(e) Every issue should form a single
question and as far as possible should not
be put in an alternative form.
(f) No proposition of fact which is not itself
a material proposition, but is relevant only
as tending to prove a material proposition,
shall be made the subject of an issue.
(g) No question regarding admissibility of
evidence shall be made the subject of an
issue.
12.3. Now in the present case, it is
apparent from the judgment and order of
the lower Appellate Court that the
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provisions of Order41 Rule31 of the Code
and Rule414 of the Bombay Civil Manual
are not followed.
14. A similar view was taken by this Court
in the case of Mahmad Ahmadbhai vs.
Fatmaben Abdulla & Ors. as reported in
2007 (4) GLR 2789; in the case of Prajapati
Abraham Nagarbhai & Anr. Vs. Prajapati
Harjibhai & Ors., 2010 (2) GLH 551 as well
as in the case of Dumala Vahpara Gram
Panchayat vs. Chunilal Tribhovandas Patel
& Ors., as reported at 1999(2) GLH 959."
13.2 In the decision in case of Ajitsinh
Babubhai Jadav vs. Wadhwan Mahajan
Panjarapol reported in 2013 LawSuitGuj)
251, the Court has held as under:
"6. Now considering the points, which are
formulated by the lower Appellate Court, I
am of the opinion that, the lower Appellate
Court has committed error in not properly
formulating the points for determination.
The lower Appellate Court ought to have
framed points for determination in
accordance with Order 41 Rules 11, 14, 15
and 31 of the Code as well as Para No.
414 of the Bombay Civil Manual and ought
to have given reasons for its decision on
C/SA/79/2023 ORDER DATED: 20/04/2023
each point independently. The Apex Court
in the case of H.Siddiqui (dead) by LRs.
(supra) in the context of Order-41 Rule-31
of the Code of Civil Procedure, has
observed in paras 21 and 22 as under:
"21. The said provisions provided
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 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 asses 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
C/SA/79/2023 ORDER DATED: 20/04/2023
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 such 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:
Sukhpal Singh v. Kalyan Singh, AIR 1963
SC 146; Girijanandini Devi v. Bijendra
Narain Choudhary, AIR 1967 SC 1124; G.
Amalorpavam v. R.C. Diocese of Madurai,
2006 (3) SCC 224; Shiv Kumar Sharma v.
Santosh Kumari, 2007 (8) SCC 600; and
Gannmani Anasuya v. Parvatini
Amarendra Chowdhari, AIR 2007 (SC
2380: 2007 (10) SCC 296. "22. In B.V.
Nagesh v. H.V. Sreenivasa Murthy reported
in JT 2010(10) SC 551: 2010 (13) SCC 530,
while dealing with the issue, this Court
held as under:
"4. 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,
C/SA/79/2023 ORDER DATED: 20/04/2023
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 v. Sangram, 2001 (4) SCC 756."
7. In a recent case of Budhabhai
Bhikhabhai Parmarand and another Vs.
Shantaben Wd/o Bhalabhai Becharbhai,
2013(1)G.L.H.127, this Court, while
dealing with the provision of Section 100 of
the Code of Civil Procedure and the
provisions of Order 41, Rule 31 of the Code
by relying upon the case of H. Siddiqui
C/SA/79/2023 ORDER DATED: 20/04/2023
(dead) by LRs. (supra), has held that the
first Appellate Court has to decide the
Appeal in accordance with law, on merits
and after framing points for determination
as envisaged under Order- 41, Rule-31 of
the Code of Civil Procedure. It has also
been observed that on each point, the
Appellate Court has to give its own finding
that too after re-appreciation of entire
evidence on record.
8. In addition to the above principles of
provisions of Order 41 Rule 31 of the Code
of Civil Procedure, Bombay Civil Manual,
which has been made applicable to the
State of Gujarat, provides in detail the Civil
Courts' functioning. Different Chapters
provided therein make the provisions of the
Code of Civil Procedure amply clear that
how the original Court, first appellate Court
and second appellate Court has to
function. To ensure the uniformity with
regard to practice and procedure of civil
proceedings, the Manual is an exhaustive
guiding factors for a Court, who is deciding
disputes between the parties of a civil
nature.
8.1 As far as Appeals arising from the Trial
Courts' judgment, decree and order are
C/SA/79/2023 ORDER DATED: 20/04/2023
concerned, Chapter-XX of the Code deals
with the same. Para/Rule-414 of the
Bombay Civil Manual provides about the
manner, in which the appellate Court
should frame the suitable points for
determination while deciding the Appeal.
Rule-414 of the Bombay Civil Manual
reads as under:
"414. The appellate Court should frame
suitable points for determination in appeals
in accordance with the same principles on
which issues are framed in the trial Court."
2 In my opinion, combined reading of the
Order-41 Rule31 of the Code as well as
Rule-414 of the Bombay Civil Manual make
it clear that the first appellate Court is
bound to frame points for consideration as
if it is framing the issues provided under
the provisions of the Code of Civil
Procedure. Paras/Rules-53 and 54 of the
Bombay Civil Manual provides the method
of settlement / framing issues. Rules-53
and 54 read as under:
"53. Issues should be framed by the
Presiding Judge on the date fixed for the
purpose. They indicate the points in
controversy, on which the parties are to go
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trial and give them notice of the matters
which they are required to establish by
adducing evidence or otherwise. No trial is
likely to be satisfactory unless the issues
are complete and precise. It should be
observed that a party has to produce
evidence in support of the issues, which he
is bound to prove (Order XVIII, rules 2 and
3) and that the judgment of the Court shall
record its findings on the issues (Order XX,
rule- 5). These provisions should make it
plain that an essential preliminary to a
satisfactory trial is the settlement of full
and precise issues. A judicious use of the
provisions of rule 1 of Order X and sub-rule
(5) of rule 1 of Order XIV may be found of
help for collecting material necessary for
framing issues in seriously contested
cases. The duty of framing issues under
the law must be performed by the Court
and the presiding Judge should not leave it
to the parties or lawyers to frame the
issues but should apply his own mind to
the subject. There is however, no reason
why the Court should not take suggestions
from the parties as to the issues to be
framed."
"54. In framing issues the Court should
proceed as follows:-
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a) Every issue of fact shall be so framed as
to indicate on whom the burden of proof
lies.
(b) Every issue of law shall be so framed
as to indicate the precise question of law to
be decided. Note : When the claim or any
portion of it is alleged to be barred by any
law the issue shall also state the Act and
section or rule or other provision under
which it is so barred.
(c) When the question is whether a certain
section of law applies, the issue should be
framed in the words of that section e.g., if
the question is whether a transfer should
be set aside under section 54 of the
Provincial Insolvency Act, the issue should
not be "Is the transfer bogus and
fraudulent"?
(d) Issues should be self-contained. The
framing of issues such as "Is the sale liable
to be set aside for the reasons stated by
the defendant in his written statement,
dated..." should be avoided.
(e) Every issue should form a single
question and as far as possible should not
be put in an alternative form.
(f) No proposition of fact which is not itself
a material proposition, but is relevant only
as tending to prove a material proposition,
shall be made the subject of an issue.
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(g) No question regarding admissibility of
evidence shall be made the subject of an
issue."
8.3 Now in the present case, it is apparent
from the judgment and order of the lower
Appellate Court that the provisions of
Order-41 Rule-31 of the Code of Civil
Procedure and Rule-414 of the Bombay
Civil Manual are not followed.
9. Even otherwise, the learned Appellate
Court, in my opinion, has not re-
appreciated the entire evidence and has
not arrived at its own conclusion on each
issues, which were in controversy between
the parties.
10. A similar view was taken by this Court
in the case of Mahmad Ahmadbhai v.
Fatmaben Abdulla & Ors. reported in
2007(4) GLR 2789; in the case of Prajapati
Abraham Nagarbhai & Anr. v. Prajapati
Harjibhai & Ors., reported in 2010(2) GLH
551 as well as in the case of Dumala
Vahpara Gram Panchayat v. Chunilal
Tribhovandas Patel & Ors., reported in
1999(2) GLH 959"
10. In the decision in case of Shah Keshavji Pashuji Vira
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(Decd) and ors vs. Shah Mavji Pasu-Decd and ors reported
in 2014 LawSuit(guj) 293, the Court has held as under:
"5. As noted above, the merits of the case were not
required to be gone into. At the outset, it is noticed
on consideration of the judgment of the first
appellate court that while exercising its appellate
jurisdiction under section 96 of the Civil Procedure
Code, 1908, it had not observed the mandatory
requirements of Order 41 Rule 31 of the Code.
5.1 When the learned Additional District Judge was
exercising appellate jurisdiction under Section 96
read with Order 41 Rule 31, CPC, it was incumbent
on him to observe requirement of law for exercising
the jurisdiction. Order 41, Rule 31, CPC provides
the manner in which the appellate court would
undertake adjudication process to arrive at a
decision in the appeal before it. Order 41, Rule 31
reads as under:
"XLI Appeals from original decrees
1. 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
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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."
5.2 It is emphasised by the Apex Court as well as
by this Court that the Appellate Court has to
formulate specific points for determination. In H.
Siddiquy (Dead) by LRS. (supra), the Apex Court
emphasised necessity for strict adherence to the
provisions of Order 41 Rule 31, CPC by observing
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 with the said provisions if the
appellate court's judgment is based on the
independent assessment of the relevant
evidence on all important aspects of the
matter and the findings of the appellate
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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." (Para 21)
5.3 In Union of India and another Vs Ranchhoddas
and others [(2007) 14 SCC 326], the Apex Court
held that order of the High Court deciding the
appeals under Section 54 of the Land Acquisition
Act, 1954, showed a cryptic way without going into
the merits of the rival contentions was not
sustainable in view of noncompliance with Order
41 Rule 31, CPC. In Parimal Vs Veena alias Bharti
[(2011) 5 SCC 545], it was held that the first
Appellate Court should not disturb and interfere
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with the valuable rights of the parties which stand
crystalised by Trial Court judgment, without
opening the whole case for rehearing, both at
question of facts and law. It observed that the First
Appeal is a valuable right and the parties have
right to be heard, both on the question of facts and
on law. The Appellate Court should not modify the
decree of the Trial Court by a cryptic order without
taking note of all the relevant aspects, otherwise
the order would be liable to be set aside.
5.4 In Babubhai Velani Vs Rameshbhai Prajapati
[2012(3) GLH 624], this High Court took similar
view. In that case, the lower appellate court has
framed points generally as to whether the
appellants prove that the judgment of trial court
was against the established principles of law and
whether the learned trial judge had committed error
apparent on fact of record. It was observed that the
aforesaid formulation could not be said to be
raising proper points for determination while
deciding the appeal under Section 96, CPC. The
court referred to the decision of Supreme Court in
B.V. Nagesh and another Vs H.V.
Sreenivassamurthy [2010 (13) SCC 530] to observe
that without framing the point of determination,
without proper reason and discussion, the first
appellate court cannot dispose of the first appeal
under section 96, CPC. Again in Budhabhai
Bhikabhai Parmar Vs Shantaben, wd/o Bhelabhai
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[2013 (1) GLH 217], the Court disapproved
perfunctory manner in deciding the appeal in the
appellate jurisdiction and stated that the Appellate
Court has to give its own findings on all the points
of determination. Similarly, in oral judgment dated
07th February, 2013 in Kanaiyalal Shambhubhai
Vekariya Vs Shushilaben M. Joshi in Civil Revision
Application No.319 of 2011 and in oral judgment
dated 12th February, 2013 in Kasambhai
Hasambhai Pinjara Vs Chunilal Bhimjibhai Dhanak
in Civil Revision Application No.217 of 2009, this
court reiterated the principles while taking note of
Rules 53 and 54 in the Bombay Civil Manual.
6. Coming back to the facts of the case, the first
appellate court was required to formulate specific
points in relation to the disputed aspects of the
matter. Only after formulating the specific points for
determination, it could have focused the discussion
on merits. Only then, it could have dealt with the
evidence in proper context. Whatever ultimate
conclusion the appellate court may reach as it may
deem appropriate on merits and on evidence,
however, the appellate decisional making process
has to be guided by the mandatory requirement of
law.
6.1 The whole purpose as to why the lower
appellate court is expected to formulate specific
point of determination in exercise of appellate
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jurisdiction is that it must reflect that it applied its
mind to the subject matter. Secondly, it should also
reveal that the court was aware of all the relevant
points on which it was adjudicating as appellate
court. The third purpose which is subserved by
specific formulation of points and reasoned
discussion on each of such points is that the
litigants who are laymen, when read judgment,
know as to what is actually decided by the court.
Formulation of points adverting to the discussion
thereon on the basis of the evidence on record and
arriving at conclusion on that basis are all the
necessary traits of judicial approach. When a
judgment of any court satisfies such requirements,
then only it acquires judicial character."
11. In the decision in case of Mahmad Ahmadbhai vs.
Fatmaben Abdulla reported in 2007(4) GLR 2789 the
Court has held as under:
"5. In my opinion, Mr.Suthar is right. The appeal
preferred before the lower appellate Court was one
under Section 96 CPC. All matters at issue were at
large before the lower appellate Court. Points for
determination were required to be framed in
accordance with Order 41 Rule 31 CPC and were
required to be considered and decided in
accordance with law. Instead, the learned Fast
Track Judge has recorded a mere satisfaction that
"...on going through the rival contentions and the
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findings on issue recorded by the learned trial
Judge, I come to the conclusion that the learned
trial Judge has rightly allowed the suit of the
plaintiffs and this appellate Court has found no
reason to make any kind of interference with the
impugned judgment and decree."
6. By no stretch of imagination the learned Fast
Track Judge can be said to have performed his
duty of deciding the appeal before him. The
approach of the learned Fast Track Judge is
perfunctory and contrary to the legal principles. To
me, it appears that the learned Fast Track Judge
has, in the wake of quick disposal, gone off the
track. Instead of deciding the matter before him,
the learned Fast Track Judge has merely disposed
of the matter. The attempt appears to be that of
bagging disposal rather than deciding the lis before
the Court."
12. On bare perusal of the decision of the First Appellate
Court passed in Regular Civil Appeal, it is clearly borne out
that the learned First Appellate Court has committed
serious error in not deciding the appeal in accordance with
the provisions of Order 41 of CPC and and has not framed
the issues with respect to controversy between the parties
and, therefore, present appeal is required to be remanded
back to the First Appellate Court to determine the appeal in
accordance with the provision of Order 41 Rule 11, 15, 31
and 33 and more particularly, considering the recent
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pronouncement of Hon'ble Apex Court and this Court,
present appeal deserves to be allowed. The impugned
judgment and order passed by the First Appellate Court is
hereby quashed and set aside.
13. In view of the above settled principles of law by
delivering the judgment, the First Appellate Court is
required to substantially comply with the provision of Order
41 Rule 31 of the C.P.C..
14. In present case on perusal of the judgment and order
of the lower Appellate Court, it is abundantly clear that the
First Appellate Court has failed to discharge obligation
placed on it as a First Appellate Court and therefore, in my
opinion the judgment and award of the lower Appellate
Court deserves to be quashed and set aside and the same is
required to be remanded to the First Appellate Court for
considering the same a fresh on merits and in accordance
with law after framing point of determination with respect to
controversy between the parties in accordance with Order
41 Rule 11, 14, 15, 31 and 33 of the Code.
15. In the result, present appeal is allowed. The impugned
Judgement and Decree dated 12/04/2022 passed by the
learned 2nd Additional District Judge, Keshod in Regular
Civil Appeal No.11 of 2018 is hereby quashed and set aside
and the matter is remanded back to the First Appellate
Court to decide the same a fresh on merits and in
accordance with law after formulating the points of
determination.
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16. Accordingly the proceedings of Regular Civil Appeal
No.11 of 2018 is hereby restored to original file. The learned
First Appellate Court shall decide the same as expeditiously
as possible and preferably within a period of 2 months from
the date of receipt of certified copy of present order without
influenced by the earlier order passed by First Appellate
Court after affording opportunity of hearing to the learned
advocates for respective parties. 1
17. It is clarified that the matter is remanded only on the
ground referred to herein above of the case.
18. Accordingly, present Second Appeal stands disposed of
accordingly.
All concerned are directed to cooperate the learned
appellate court in early disposal of the suit within stipulated
time as aforesaid.
ORDER IN CIVIL APPLICATION No.1 of 2022:
In view of disposal of the main appeal, present Civil
Application does not survive and the same stands disposed
of accordingly.
(RAJENDRA M. SAREEN,J)
R.H. PARMAR
