DOSHIBAI KHANNA v. SANDHI SULEMAN GULMAMAD — 1964 DIGILAW 128 (GUJ)

N. M. MIABHOY, J. ( 1 ) THIS is defendant-tenants Second Appeal. It arises out of a suit brought by plaintiff-respondent for evicting appellant. Respondent claimed to evict appellant on two grounds:- (1) that appellant was a tenant in arrears and (2) that respondent required the suit premises reasonably and bonafide for his personal use. Appellants defence was that the contracual rent was not the standard rent and that all the arrears of rent had been tendered to respondent prior to the institution of the suit. Appellant also contended that the notice terminating the tenancy was bad. She also denied the allegation of reasonable and bonafide personal requirement. The trial Court held that the contractual rent was the standard rent; that the arrears of rent were tendered by appellant prior to the institution of the suit by a money order and that the money order was refused by respondent. It further held that however appellant had failed to deposit the amount of costs of the suit and had not continued to deposit rent every month after the institution of the suit. This finding was recorded by the trial Court on the misconception that under the Saurashtra Rent Control Act 1951 (hereafter called the Act) the tenant was required to make the latter deposit. The trial Court also held that the notice was valid. It further held that respondent had proved that he required the premises reasonably and bonafide for his personal use. On the aforesaid findings the trial Court decreed the claim of eviction of respondent. Appellant went in appeal to the District Court at Bhavnagar. The learned Extra Assistant Judge of that Court however dismissed the appeal. Though the learned appellate Judge held that contractual rent was the standard rent no finding was recorded by him on the question as to whether on account of the non-payment of the costs and the failure to pay rent every month the decree for eviction should or should not be upheld. On the question of reasonable and bonafide requirement the learned appellate Judge agreed with the finding of the learned trial Judge. ( 2 ) NOW the first point which is urged by Mr. On the question of reasonable and bonafide requirement the learned appellate Judge agreed with the finding of the learned trial Judge. ( 2 ) NOW the first point which is urged by Mr. Vyas in support of the appeal is that the judgment of the learned appellate Judge is not in accordance with law and that therefore apart from the merits of the case the appeal deserves to be allowed and that the first appeal preferred by appellant in the District Court should be remanded for recording fresh findings. The contention is based mainly on the provision contained in Order 41 rule 31 Civil Procedure Code 1908 That rule enacts that the judgment of the appellate Court shall inter alia state (1) the points for determination (2) the decision thereon and (3) reasons for the decision. The part of the rule which the learned Judge is alleged to have broken is the direction that reasons must be given for the decision. For the purpose of considering this question I propose to ignore for the present the contention of Mr. Vyas that before the appellate Court the finding of the learned trial Judge that decree for eviction should be passed on the ground that appellant had failed to pay the amount of costs and to deposit the rent every month after the institution of the suit had been challenged and that the learned Judge had not framed any point for determination and that he had not recorded any decision thereon. The contention which I propose to examine in the first instance is the contention that the learned appellate Judge has not given reasons for recording his decision on the question of reasonable and bonafide requirement. It is not disputed that the learned Judge did raise the aforesaid point for determination and has also recorded his decision thereon. Mr. Vyass contention however is that though the aforesaid two requirements of Order 41 rule 31 of the Code of Civil Procedure 1908 have been complied with the learned Judge has committed a breach of the further requirement of recording his reasons for the actual decision that he has arrived at. Now the judgment which the learned Judge has recorded is a short one consisting of eight paragraphs in all. Now the judgment which the learned Judge has recorded is a short one consisting of eight paragraphs in all. The first paragraph summarizes the plaint the second paragraph summarizes the written statement the third paragraph summarizes the findings record by the learned trial Judge the fourth paragraph states that appellant had come in appeal and the fifth paragraph records the points which were urged in support of the appeal. In that paragraph the learned Judge has stated that appellant herein had urged that there was no sufficient evidence on record to hold that respondent herein required the suit premises for his own use and occupation and that she had also urged that if she was asked to vacate the suit premises greater hardship would be caused to her. In that paragraph the third point argued is mentioned as the point relating to standard rent. Then comes the sixth paragraph. In this paragraph the learned Judge has dealt with the question of reasonable and bonafide requirement. Before I summarize the contents of that paragraph I may mention that in the seventh paragraph the learned Judge has dealt with the question of standard rent and in the eight and the last paragraph the learned Judge has considered the request made by appellant for grant of time for vacating the premises. From the aforesaid summary it is quite clear that the crucial paragraph which requires to be examined in connection with the aforesaid submission of Mr. Vyas is the sixth paragraph. Now the contention of Mr. Vyas is that a perusal of that paragraph shows that in substance no reason has been given by the learned Judge for recording his finding that respondent had established reasonable and bonafide requirement for personal use. Mr. Vyas contends that all that the learned Judge has done is to refer to evidence in regard to points over which there was no dispute and that the disputed points had been disposed off by recording conclusions thereon without adducing any reason whatsoever as to why those conclusions were reached. In the first part of the paragraph 6 the learned Judge refers to the fact that respondent had proved his ownership that respondent was a tenant in the house of one Purshottam and has merely mentioned the names of the witnesses examined by respondent. Then the learned Judge mentions that respondent was paying Rs. 5/per month as rent. In the first part of the paragraph 6 the learned Judge refers to the fact that respondent had proved his ownership that respondent was a tenant in the house of one Purshottam and has merely mentioned the names of the witnesses examined by respondent. Then the learned Judge mentions that respondent was paying Rs. 5/per month as rent. In the second part of that paragraph the learned Judge proceeds to dispose off the contention of appellant that respondent was a big landlord was not proved and that respondent was living in a small house and paying more rent. Then in the second part of the paragraph the learned Judge disposes off the crucial question of respondents requirement in the following two sentences:- It is sufficiently proved that the plaintiffs requirement is genuine. The defendant must therefore vacate the suit house. In the third part of the paragraph the learned Judge deals with the defence that the tenancy was an annual tenancy and rejects the same in one sentence. Thereafter the learned Judge proceeds to say as follows on the question of personal requirement:- I therefore confirm the finding of the learned trial Judge that the requirement of the plaintiff is both reasonable and bonafide. In the fourth part of the paragraph the learned Judge deals with the question of relative hardship and the learned Judge disposes off that question in the following way:- I also hold that if the defendant is asked to vacate she would not be put to greater hardship. The evidence discloses that small premises are available at Botad and if the defendant vacates the house she would not be put to any hardship. Mr. Vyas contends that the question of relative hardship has been dealt with by the learned Judge in the same cavalier manner as he has disposed off the main question of reasonable and bonafide requirement except that in regard to the latter question the learned Judge has vouchsafed to give one reason for which Mr. Vyas submits there is no evidence whatsoever. Mr. Vyas contends that the statement or the learned Judge that the evidence disclosed that small premises were available at Botad was not borne out by any evidence whatsoever. Mr. Chinoy on behalf of respondent conceded this position. Vyas submits there is no evidence whatsoever. Mr. Vyas contends that the statement or the learned Judge that the evidence disclosed that small premises were available at Botad was not borne out by any evidence whatsoever. Mr. Chinoy on behalf of respondent conceded this position. Then in the next and the final part of the paragraph the learned Judge discusses the question of an alternative accommodation which appellant was alleged to possess. After referring to the finding of the learned trial Judge on that subject the learned Judge expresses himself as follows:- The defendant is an old woman and I agree with the learned trial Judge that she can accommodate herself in the shop. From the finding of the learned trial Judge I am of the opinion that according to the Court below defendants shop is a place which might he used as a shop and a residence. Apart from that there is no evidence on record to hold that defendant would be in the streets if she is ordered to vacate. I am therefore of the view that the learned trial Judge was quite correct in ordering possession being handed over to plaintiff. Now it may be at once observed that Mr. Vyas is not wholly right in contending that the learned Judge has not given any reasons whatsoever in support of at least some aspects of the question of reasonable and bonafide personal requirement although it may equally be observed that in respect of some other aspects the judgment of the learned Judge can be assailed on that ground. If the contention of Mr. Vyas is that the learned Judge has not given any reasons of his own or independent reasons in support of the findings which he has recorded then there is considerable justification for the contention except that in regard to one matter already referred to the learned Judge has given an independent reasoning in respect of which Mr. Chinoy had to concede that there was no evidence. The question for consideration is as to whether the aforesaid paragraph in the judgment sufficiently complies with that part of Order 41 rule 31 of the Code of Civil Procedure 1908 which is alleged to have been infringed. It is not necessary for me to consider whether all the parts of Order 41 rule 31 are or are not mandatory. The question for consideration is as to whether the aforesaid paragraph in the judgment sufficiently complies with that part of Order 41 rule 31 of the Code of Civil Procedure 1908 which is alleged to have been infringed. It is not necessary for me to consider whether all the parts of Order 41 rule 31 are or are not mandatory. But I have no hesitation in saying that at least that part of the aforesaid provision which directs that the learned appellate Judge shall state his reasons for the decisions on points for determination is a provision of that character. Therefore I have no hesitation in saying and this is a point which is conceded by Mr. Chinoy that if a judgment does not record any reason whatsoever in support of the finding then the judgment would stand vitiated as infringing the aforesaid provision. However this requirement should not be equated with the adequacy or the sufficiency of reasons. The rule requires the statement of reason but does not say anything on the latter subject. If reasons are given then the rule is complied with. The adequacy or the sufficiency of the reasons is a matter which cannot be made a ground for holding that the aforesaid rule has been infringed. If there is any such defect in the judgment it may have its repercussions in the higher Court which may be called upon to consider whether the judgment should be upheld or reversed. It is also important to bear in mind that the aforesaid rule also does not give any directions as to the form or the manner in which the reasons are to be stated or couched. For obvious reasons it also does not say that the reasons must be independent and fresh reasons. Cases can be contemplated in which the Judgment of a trial Court may be so exhaustive as not to leave any scope for the statement of any new or fresh reason. Nor does the rule say that the reasons must necessarily be couched in the language of the learned appellate Judge himself. The rule does not disapprove of adoption of the reasons given by the learned trial Judge or the language in which the reasons are couched. Nor does the rule say that the reasons must necessarily be couched in the language of the learned appellate Judge himself. The rule does not disapprove of adoption of the reasons given by the learned trial Judge or the language in which the reasons are couched. Cases can be contemplated in which judgment of the trial Court may have been so written that the appellate Judge might think it to be waste of time by undertaking the task of paraphrasing the judgment. In fact according to some authorities the merits of an appellate judgment lies more in the fact that it incorporates as briefly as it can all the good points of the judgment of the lower Court and if it has to add anything it adds the thing as briefly as the circumstances may require. If we apply the aforesaid tests then in my judgment the aforesaid paragraph 6 cannot be attacked on the ground that it does not give reasons for the conclusions arrived at by the learned Judge. It is true that a major portion of that paragraph contains a synopsis of the evidence only mentions some of the contentions of the parties and records the conclusions of the learned Judge. The reasoning part of the Judgment is unfortunately very meagre. But at the same time it cannot be said that the paragraph suffers from the demerit of not giving any reasons whatsoever. As regards some of the points the learned Judge has stated that he agrees with the reasons given by the learned Judge though unfortunately he has not indicated what those reasons are which he approves. Having regard to the aforesaid facts I am unable to come to the conclusion that the contentions of Mr. Vyas must be upheld that the aforesaid judgment suffers from the defect of a total lack of the statement of reasons. But there is another and an equally vital principle which is involved in this matter which does not arise from the aforesaid provision of the Civil Procedure Code and that matter arises from the fact that the law requires a judgment to be written by an appellate Court for more than one good reason. But there is another and an equally vital principle which is involved in this matter which does not arise from the aforesaid provision of the Civil Procedure Code and that matter arises from the fact that the law requires a judgment to be written by an appellate Court for more than one good reason. One is that an appeal confers an important right on a litigant to have all the points raised by him decided by the appellate Court and secondly if the appeal requires to be carried further in the hierarchy of tribunals the higher Courts must have the assistance of the views of the learned appellate Judge in order to enable the higher Courts to discharge their own functions. As I shall presently point out it is for this and similar reasons that a number of authorities have emphasised the fact that an appellate Judge must bring to bear his own independent mind on the points in controversy and the judgment of the appellate Judge must be so written that the further tribunals should be in a position to state that the appellate Judge had discharged the aforesaid functions of bringing to bear his own independent mind on the points in controversy in the proper way. As already stated this does not mean that in every case the appellate Judge must give fresh or independent reasons or that he is precluded from adopting the reasons given by the trial Court. But when an appellate judgment does not give reasons in its own words and merely says that it adopts the reasons adduced by the trial Court then it lays itself open to this attack that the learned Judge had not applied his own independent mind to the subject and that the statement that it was adopting the reasoning of the trial Court was merely a mask or a disguise for lack of proper application of the mind of the appellate Judge which is absolutely necessary in order to dispose off an appeal proceeding. In Kirani Ahmedula v. Suba Bhat 8 Bombay 28 whilst dealing with the contention as to whether an appellate Court can rectify the exercise of the discretion vested in the first Court West J. made the following observations which have a bearing on the point which I have in hand. In Kirani Ahmedula v. Suba Bhat 8 Bombay 28 whilst dealing with the contention as to whether an appellate Court can rectify the exercise of the discretion vested in the first Court West J. made the following observations which have a bearing on the point which I have in hand. The observations are as follows:-"we are of opinion that when an appeal against an order based on facts is given from a subordinate to a superior Court the discretion vasted in the former is absorbed in the latter and that it is the duty of the superior Court to weigh the facts which formed the basis upon which the subordinate Court proceeded and to arrive at its own independent conclusion. To hold otherwise would be to deny to the appellant the usual benefits of an appeal. " ( 3 ) IN Ganpati Ranu Kolapure v. Sevakram Mansukhram A. I. R. 1918 Bombay 235 a Division Bench of the High Court of Bombay consisting of Batchelor Ag. C. J. and Kemp J. . whilst observing that they did not desire to add unnecessarily to the clerical labours which devolve upon appellate Judges or to suggest that any judgment is improved by prolixity made the following pertinent observations which are apposite on the aforesaid topic:-"i think the rule intends and requires that there should be some statement however brief by the appellate Judge to show that he has exercised his own mind independently on the questions involved in the appeal. For the litigant is entitled as of right to a first appeal and that in my view. involves that he is entitled to know however briefly the reasons which have moved the appellate Judge to this conclusion. " ( 4 ) A little further up the learned Judges make the further pertinent observations:-"i agree with the decision of the Madras High Court in Sitaramn Sastrulu v. Suryanarayana Sastrulu 22 Madras 12 that the judgment of the appellate Court should show on the face of it that the appellate Judge exercised his own discrimination in deciding the points in dispute. The same view was taken by this Court in Gundappa v. Lobosa 1 Bom. L. R. 490 where Parsons J. and Ranade J. sent back the case directing the District Judge to record a judgment which should contain not only his decision on the points for determination. The same view was taken by this Court in Gundappa v. Lobosa 1 Bom. L. R. 490 where Parsons J. and Ranade J. sent back the case directing the District Judge to record a judgment which should contain not only his decision on the points for determination. but also his reasons for that decision. It appears to me that these requirements of the Code which must be satisfied need not lead to prolixity or entail any appreciable burden of writing. In a plain case where all the argument is in favour of the judgment under appeal very few words would ordinarily be needed to show that the appellate Judge has exercised his own independent mind on the arguments presented to him and has not taken the forbidden shortcut of adopting en bloc the reasoning of the trial Court. But so much should I think be made to appear. After all some criticism of the judgment is usually offered in appeal. and such criticism should receive some answer however brief and summary. " ( 5 ) THE aforesaid observations would show that an appellate judgment is expected not merely to deal with the materials and the evidence on record. but also to deal with the judgment of the trial Court in so far as it is assailed in the appellate Court. It is only in very rare cases that some criticism is not levelled or cannot be levelled against the judgment of a trial Court. In order that the higher tribunals may be satisfied and the judgment of the appellate Court may not be assailed on the ground of lack of application of mind it is expedient that the appellate judgment must indicate the points which were raised or formulated in the appeal and the arguments which were urged for or against the same and the criticisms which were levelled against the reasoning adopted by the trial Court. In Ganthakoru Mangamma and others v. Dulla Paidayya and others A. I. R. 1941 Madras 393 pandrang Row J. made the following observations:-"where the judgment in appeal does not come to close quarters with the judgment which it reviews and never discusses or alludes to the reasoning of the trial Judge such judgment seriously invalidates its authority and does net satisfy the requirements of the law and must be therefore be deemed to be a judgment vitiated by an error in procedure. " ( 6 ) IN Lal Suraj Prasad v. Ram Charitar Singh and others A. I. R. 1950 Patna 298 Division Bench held as follows:-"a judgment of an appellate Court should contain the grounds on which its decision is based. It is not sufficient for the appellate Court to state in general terms that it agrees with the reasoning of the subordinate Court; although in a judgment of affirmance it is not necessary that the appellate Court should repeat all that has been said by the subordinate Court there must be a sufficient discussion to show that it has applied its own mind to the evidence. " ( 7 ) MR. Vyas also drew my attention to the observations made by Thadani Ag. C. J. in Ambor Ali v. Nichar Ali A. I. R. 1950 Assam 79. In that case the learned Chief Justice made the following observations:-"the judgment of an appellate Court must be self-contained so self-contained that findings of fact can be sustained upon a bare persual of it. It is not sufficient if it merely states that a particular fact had not been proved nor is it sufficient if it merely states that the oral evidence was not satisfactory on that point. It should reproduce the material evidence and also state the reasons for holding the fact as not proved and the oral evidence unsatisfactory. " ( 8 ) ALTHOUGH it is permissible to urge that the law does not necessarily require compliance with the high standard which the learned Chief Justice has indicated in the aforesaid passage for writing of judgments and that the observation in the above passage that the judgment of an appellate Court must be so self contained that findings of fact can be sustained upon a bare perusal of it are too general I respectfully agree with that part or the passage in which it is held that the judgment of an appellate Court must show that the Court had applied its mind to the facts in controversy. ( 9 ) BEARING the aforesaid principles in mind on the whole I am not satisfied that the learned Judge had come to a grip with the facts of the case or that he had applied his mind to all the points in controversy. such as appellant was entitled to have from the learned Judge before the judgment of the trial Court was upheld. such as appellant was entitled to have from the learned Judge before the judgment of the trial Court was upheld. As already pointed out by me beyond giving a synopsis of the evidence on points on which there was no controversy between the parties the learned Judge has disposed off the controversial points by recording his own ipsi dixit and by making a general statement that he agreed with the reasons given by the learned Judge without indicating what those reasons are. There is only one independent reason which the learned Judge has given in support of his judgment and as already observed by me Mr. Chinoy concedes that the statement of that reason is not borne out by the evidence in the case. ( 10 ) IN view of the aforesaid flaws in the judgment Mr. Vyas urges that I must necessarily reverse the judgment of the learned appellate Judge and send the appeal back for recording fresh findings. In support of this submission Mr. Vyas contends that sec. 99 of the Civil Procedure Code 1908 is not a bar to such a procedure. That section prohibits the appellate Court from inter alia remanding a case on the ground amongst others of any error defect or irregularity in any proceedings not affecting the merits of the case or the jurisdiction of the Court. Mr. Vyas contends that a breach of Order 41 rule 31 of the Code of Civil Procedure 1908 is not merely an irregularity in the proceeding but is an illegality and. apart from the question as to whether the illegality has affected the merits of the case or not the same must result in a reversal of the judgment and a remand. Mr. Vyas contends that it is the right of appellant to have a decision recorded by the first appellate Court and that the function of the first appellate Court should not be usurped by this Court. In my judgment it is not necessary for me to decide whether a breach of Order 41 rule 31 amounts to an illegality or an irregularity or whether there is any such distinction between an illegality and an irregularity as Mr. Vyas contends for. The basis of my decision is not that the learned Judge has not given any reasons. In my judgment it is not necessary for me to decide whether a breach of Order 41 rule 31 amounts to an illegality or an irregularity or whether there is any such distinction between an illegality and an irregularity as Mr. Vyas contends for. The basis of my decision is not that the learned Judge has not given any reasons. The basis of my decision is that the judgment of the learned Judge does not disclose that he had applied his mind to the points in controversy. There are several cases in which the High Courts do find that on material questions the lower Court has either not applied its mind or omitted to record its decision. Such questions usually do arise specially in Second Appeals. It is a well settled law that in such a situation the second appellate Court itself determines the question. This is specifically provided for by sec. 103 of the Code of Civil Procedure 1908 and by the provisions contained in Order 41 rule 25. There is no reason why unless there are strong reasons for not doing so this Court should not follow the principles underlying these provisions of law even in a case which discloses that the lower Court had not discharged its duty of applying its mind to the determination of all the points in controversy. Mr. Vyas specially relies upon Bhagvan v. Kesur Kuverji 17 Bombay 428. In that case the Court came to the conclusion that the judgment of the appellate Court was not in accordance with law and remanded the appeal after setting aside the appellate decree. However I fail to see how the procedure which was followed in that case can lend support to the contention of Mr. Vyas that in every case a remand must be made and the second appellate Court has no jurisdiction to decide the appeal. It is one thing to say that this Court has got the power of making a remand and it is totally a different thing to say that the Court cannot do anything else but to make an order for remand. The same procedure of remand was followed by Pandrang Row J. in Ganthakorus case already referred to. The same remarks apply to the procedure adopted in this case as I have done in respect of Bhagvans case. The same procedure of remand was followed by Pandrang Row J. in Ganthakorus case already referred to. The same remarks apply to the procedure adopted in this case as I have done in respect of Bhagvans case. There is more than one reason as to why the procedure of remand should not be followed in the present case. In the first instance it is common ground that in view of a judgment delivered by Mr. Justice Divan of this High Court in Second Appeal No. 381 or 1960 decided on 21st September 1964 though this is a Second Appeal this Court is bound to decide all questions of fact in view of a certain construction placed by that learned Judge upon the relevant provisions contained in the Saurashtra Rent Control Act 1951 and therefore even if I were to remand the matter and the District Court were to decide all questions of fact the same will not be binding and conclusive between the parties but the same will have to be determined by this Court in Second Appeal. The second reason is that the appeal though it bears the number of 1960 was really filed in 1958. Moreover the present litigation has been hanging fire since about eight to nine years and the result of a remand would be only to prolong the already inordinate long life of this litigation. For the aforesaid reasons I have come to the conclusion that I should not remand the appeal but must dispose off the appeal on its own merits. [the rest of the judgment is not material for the reports. ] Appeal dismissed .