Gujarat High Court

Purshottambhai Ukaji vs Narendrabhai Raghavjibhai Patel on 23 March, 2023

Bench: Nirzar S. Desai

   C/CRA/335/2022                                     ORDER DATED: 23/03/2023




      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/CIVIL REVISION APPLICATION NO. 335 of 2022
                          With
 CIVIL APPLICATION (FOR VACATING STAY) NO. 1 of 2022
    In R/CIVIL REVISION APPLICATION NO. 335 of 2022
=====================================================
                  PURSHOTTAMBHAI UKAJI
                         Versus
            NARENDRABHAI RAGHAVJIBHAI PATEL
=====================================================
Appearance:
MR RASESH H PARIKH(3862) for the Applicant(s) No. 1
MR.HEMANG H PARIKH(2628) for the Applicant(s) No. 1
MR NV GANDHI(1693) for the Opponent(s) No. 1
=====================================================

 CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                           Date : 23/03/2023

                                ORAL ORDER

1. By way of this Civil Revision Application, the

applicant has challenged the orders dated

26.4.2022 passed by the Appellate Bench No.1 of

Small Cause Court at Ahmedabad in Civil Appeal

No.45 of 2020 as well as the order dated

23.3.2020 which was passed by the learned Small

Cause Court No.8, Ahmedabad in HRP Suit No.506

of 2017 which was confirmed by the Appellate

Bench.

C/CRA/335/2022 ORDER DATED: 23/03/2023

2. Heard learned advocate Mr. Hemang H. Parikh

appearing for the applicant and learned advocate

Mr. N.V. Gandhi appearing for the respondent.

3. The only contention that is raised by learned

advocate Mr. Hemang Parikh is that while

deciding the appeal being Civil Appeal No.45 of

2020, the learned Appellate Bench No.1 of Small

Cause Court did not frame the point of

determination which is mandatory requirement as

per Order 41 Rule 31 of the Code of Civil

Procedure.

3.1 Learned advocate Mr. Hemang Parikh in

support of the aforesaid submissions relied upon

judgment of the Hon'ble Supreme Court in case of

K. Karuppuraj Versus M. Ganesan reported in

(2021) 10 SCC 777. Learned advocate Mr. Hemang

Parikh relied upon paragraph Nos.7 and 11 of the

said judgment and submitted that the Appellate

Bench of Small Cause Court being the first

Appellate Court, it is mandatory for the

Appellate Court to frame the point of

C/CRA/335/2022 ORDER DATED: 23/03/2023

determination as required under Order 41 Rule 31

of Code of Civil Procedure.

4. By making the aforesaid submissions based on the

judgment in case of K. Karuppuraj (Supra),

learned advocate Mr. Hemang Parikh prayed for

quashing of impugned order and remanded back

matter to the Appellate Bench of Small Cause

Court, Ahmedabad.

5. Learned advocate Mr. N.V. Gandhi appearing for

the respondent - original landlord - plaintiff

could not point out anything contrary what was

submitted by learned advocate Mr. Hemang Parikh.

However, learned advocate Mr. N.V. Gandhi

submitted that while remanding the matter back

to the Appellate Bench of Small Cause Court,

this Court may direct the Appellate Bench of

Small Cause Court to decide the appeal within

some time bound scheduled.

5.1 Learned advocate Mr. N.V. Gandhi could

not dispute the fact that the Appellate Bench of

C/CRA/335/2022 ORDER DATED: 23/03/2023

Small Cause Court has failed to frame the point

of determination nor he could dispute the ratio

as laid down in the judgment referred by learned

advocate Mr. Hemang Parikh in case of K.

Karuppuraj (Supra) by citing any other judgments

taking a contrary view.

6. In view of that, on perusal of record, as this

Court has found that the Appellate Bench of

Small Cause Court has while passing the impugned

order in Civil Appeal No.45 of 2020 on 26.4.2022

has not framed point of determination in

consonance of Order 41 Rule 31 though the point

of determination is framed. The same is as

under:-

"1. Whether learned Trial Court No.8 of Small Cause Court, Ahmedabad has committed grave error of law and facts in passing the judgment and decree in H.R.P. Suit No.506 of 2017 on 23-03-2020?.

2. What order?."

7. The aforesaid point of determination is too

general in nature and therefore, the same are

C/CRA/335/2022 ORDER DATED: 23/03/2023

not framed in its true spirit too or in

consonance with the provisions of Order 41 Rule

31.

8. The Hon'ble Supreme Court in case of K.

observed as under :-

"7. In the present case, the original plaintiff instituted a suit for specific performance of the contract. On appreciation of evidence, the learned Trial Court held the issue of readiness in favour of the plaintiff. However, refused to pass the decree for specific performance of the contract on the ground that the plaintiff was not willing to purchase the property with tenants. Therefore, the issue with respect to willingness was held against the plaintiff. In an appeal filed before the High Court under Section 96 read with Order XLI by the impugned judgment and order, the High Court has allowed the said appeal and has quashed and set aside the decree passed by the learned Trial Court dismissing the suit and consequently has decreed the suit for specific performance. Having gone through the impugned judgment and order passed by the High Court, it can be seen that there is a total non-

compliance of the Order XLI Rule 31 of CPC. While disposing of the appeal, the High Court has not raised the points for determination as required under Order XLI Rule 31 CPC. It also appears that the High Court being the First Appellate court has not discussed the entire matter and the

C/CRA/335/2022 ORDER DATED: 23/03/2023

issues in detail and as such it does not reveal that the High Court has re- appreciated the evidence while disposing of the first appeal. It also appears that the High Court has disposed of the appeal preferred under Order XLI CPC read with Section 96 in a most casual and perfunctory manner. Apart from the fact that the High Court has not framed the points for determination as required under Order XLI Rule 31 CPC, it appears that even the High Court has not exercised the powers vested in it as a First Appellate Court. As observed above, the High 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.

11.Applying the law laid down by this Court in the aforesaid decisions, if the impugned judgment and order passed by the High Court is considered, in that case, there is a total non-compliance of the provisions of the Order XLI Rule 31 CPC. The High Court has failed to exercise the jurisdiction vested in it as a First Appellate Court; the High Court has not at all re-appreciated the entire evidence on record; and not even considered the reasoning given by the learned Trial Court, in particular, on findings recorded by the learned Trial Court on the issue of willingness. Therefore, as such, the impugned judgment and order passed by the High Court is unsustainable and in normal circumstances we would have accepted the request of the learned senior counsel appearing on behalf of the respondent to remand the matter to the High Court for fresh consideration of appeal. However, even on other points also, the impugned

C/CRA/335/2022 ORDER DATED: 23/03/2023

judgment and order passed by the High Court is not sustainable. We refrain from remanding the matter to the High Court and we decide the appeal on merits."

9. The aforesaid judgment makes it clear that the

first Appellate Court is required to frame the

point of determination and as the same is too

general in nature. The point of determination is

framed by the learned Appellate Bench of Small

Cause Court cannot be said to be in consonance

with provisions of Order 41 Rule 31.

10. Further as learned advocate Mr. N.V. Gandhi

is also agreeable and could not dispute the

aforesaid aspect, the impugned order is required

to be quashed and set aside, hence the impugned

order dated 26.4.2022 passed by the Appellate