K. Nanjappa Gounder v. S. R. Velusamy — 1998 DIGILAW 1561 (MAD)

Judgment :- 1. The petitioner has filed this review application to review the earlier judgment in S.A. 802/98. The respondent herein filed the suit O.S. 386/94 on the file of the District Munsif, Sathyamangalam for recovery of a sum of Rs. 8,000/- with interest due on promissory note executed by the appellant herein. The defence put forth by the appellant is that the pronote is not supported by consideration and the same had been executed in a chit transaction and only a sum of Rs. 2,000/- is due from the appellant. The District Munsif dismissed the suit. The respondent preferred an appeal in A.S. 77/97. The learned Subordinate Judge allowed the appeal and ultimately decreed the suit. Against which the second appeal was filed. This Court dismissed the - Second Appeal on the ground that the lower appellate Court had accepted the evidence of the respondents and as such mere is no substantial question of law involved in the Second Appeal. Only to review the abovesaid judgment this application has been filed. 2. Even though in the Memorandum of Grounds filed in the Review Application, the petitioner has stated that the judgment of this Honble Court is based on erroneous assumption of fact and contrary to the oral and documentary evidence before the Court, the learned counsel for the petitioner fairly represented that he is not questioning any of the findings of the lower appellate Court as well as the reasoning given by this Court for the dismissal of the Second Appeal. However, in the Second Appeal he has raised a ground that the lower appellate Court failed to frame necessary and proper issues for proper and effective adjudication and this was not brought to the notice of this Court when the Second Appeal was argued. As this is a substantial question of law, as per the judgment reported in Munivel v. Munusamy Mudaliar (1996-2-LW-574), Kadar Hussain v. Selvaraj (1997-II-MLJ-57) and Palanisami Pillai v. The Commissioner, Hindu Religious & Charitable Endowments (Admn.) Dept., (1997-I-L.W. 704), the matter has to be reconsidered. It is further contended that as it is mandatory duty of the lower appellate Court to frame the points for consideration as per Order 41, Rule 31 C.P.C. the failure on the part of the lower appellate Court would vitiate the findings and this itself will be a substantial question of law for consideration in the Second Appeal. 3. It is further contended that as it is mandatory duty of the lower appellate Court to frame the points for consideration as per Order 41, Rule 31 C.P.C. the failure on the part of the lower appellate Court would vitiate the findings and this itself will be a substantial question of law for consideration in the Second Appeal. 3. I carefully considered the contention of the learned counsel. Order 41, Rule 31 C.P.C, is as follows:— “The judgment of the Appellate Court shall be in writing and shall state— (a) the points for determination; (b) the decision thereon; (c) the reason for the decision; and (d) where the decree appealed from is reversed or varied the relief to which the appellant is entitled; and shall bear the date on which it is pronounced and shall be signed by the Judge or the Judges concurring therein; provided that where the presiding Judge is specially empowered by the High Court is pronounce his judgment so pronounced shall, after such revision as may be deemed necessary, be signed by the Judge.” The provision contemplates the contents of the judgment as follows: i. me points for determination; ii. the decision thereon iii. the reason for the decision; and iv. where the decree appealed from is reversed or varied the relief to which the appellant is entitled; In short, the appellants contention is that the first requirement is absent in the judgment of the lower appellate Court, whereas all the other three requirements are fulfilled. If that be so, whether it will be a ground much less a substantial ground to entertain the Second Appeal? 4. Now I will consider the judgments relied upon by the counsel for the petitioner. The first judgment is reported in Munivel v. Munusamy Mudaliar (1996-2-L.W. 574) in which while construing Order 41, Rule 31 C.P.C., the learned Judge has held as follows: “In this case, the first appellate Court has not conformed strictly to the provisions of Rule 31. This Court has held that the provisions of this Rule are mandatory. A judgment which does not comply with the provisions of Rule 31 is no judgment in law. This Court has held that the provisions of this Rule are mandatory. A judgment which does not comply with the provisions of Rule 31 is no judgment in law. The judgment of the appellate court should briefly but clearly set out the allegations of the plaintiff, the pleas in defence and the findings of the Court below on the issues arising out of the pleadings and then it should give the points for determination, the decision thereon and the reasons. While discussing the judgment on merits, the learned Judge has further held as follows: “Since the judgment of the appellate Court is not in accordance with the provisions of Order 41, Rule 31 in regard to the formulation of the points for determination, the judgment, in my opinion, is vitiated. Since the provisions of this Rule are mandatory, the lower appellate Court ought to have considered all the points raised by the both parties in the trial Court and formulate the necessary points for determination and decide the case on merits. The law imposes on the appellate Court an imperative duty and obligation of giving adequate and satisfactory judgment when reversing a judgment. The aggrieved party, namely, the appellant in this Court can therefore, demand a consideration of the points on which the lower Court relied when, a judgment is one of reversal. The lower appellate Court has not discussed the matters which are germane to the points at issue fully. Since the lower appellate Court has failed to do so, I have no other option except to set aside the same and remit the matter to the lower appellate Court to formulate necessary points for determination on the points raised by both sides and dispose of the appeal on merits and in accordance with law after affording an opportunity to both sides.” 5. Then coming to the other case, relied upon by the counsel for the petitioner reported in Kadar Hussain v. Selvaraj (1997-II-MLJ-57) which is a Division Bench judgment consisting of AR. Lakshamanan, J., and Raman, J. In the above judgment the learned Judges have held as follows: “We have gone through the judgment of the learned single Judge. Then coming to the other case, relied upon by the counsel for the petitioner reported in Kadar Hussain v. Selvaraj (1997-II-MLJ-57) which is a Division Bench judgment consisting of AR. Lakshamanan, J., and Raman, J. In the above judgment the learned Judges have held as follows: “We have gone through the judgment of the learned single Judge. We are of the view that the judgment is defective, in that the learned Judge has not followed the provisions under Order 41, Rule 31 C.P.C. As rightly pointed out by the learned senior counsel for the appellant, it is incumbent on the part of the Appellate Court to raise points for determination just to clear up the pleadings and focus the attention of the Court and of the parties on the specific and rival contentions which arise for decision, one of us (AR. Lakshmanan, J.), sitting single, in Kannammal v. Kuppanna Gounder (1996-2-MLJ-550) following a Division Bench of this Court in Visalakshi Ammal v. Dhanalakshmi Ammal (1989-2-L.W. 414) and for the reasons stated in the order, has set aside the judgment of the First Additional District Judge, Coimbatore and remitted back the matter to the said Court, to dispose of the appeal afresh on merits and in accordance with law and after affording opportunity to both the parties, within three months from the date of receipt of copy of the judgment.” The learned Judges have further held as follows: “The learned single Judge (Bellie, J.,) has not considered any facts and circumstances and the evidence adduced both oral and documentary by both sides, but merely recorded a finding by accepting the evidence of D.WS. 1 and 2 without himself bestowing any consideration thereon, it can surely be said that this is not a judgment in the eye of law.” 6. 1 and 2 without himself bestowing any consideration thereon, it can surely be said that this is not a judgment in the eye of law.” 6. Yet another judgment of the Division Bench consisting of the same learned Judges reported in Palanisamy Pillai v. The Commissioner, Hindu Religious & Charitable Endowments (Admn.) Dept., (1997-1-L.W. 704) has held as follows: “The object of Order 41, Rule 31 C.P.C, in making it incumbent upon the Appellate Court to raise the points for determination and to state reasons for the decision is clear up the pleadings and focus the attention of the Court and of the parties on the specific and rival contentions which arises for determination as also to offer the litigant parties an opportunity of knowing and understanding the grounds upon which the decision proceeds with a view to enable them to exercise if they see fit, and are so advised, the right of Second Appeal conferred by Sec. 100 C.P.C” In this case, the learned Judges have Considered the requirements of Order 41 but not specifically with reference to Order 41, Rule 31 C.P.C. In this case the learned Judges on the basis of the points raised for consideration by the lower appellate Court has decided to proceeded with the disposal of the matter which is very clear in the following words: “Since the learned single Judge has not considered the voluminous exhibits filed by the appellant, the aggrieved party is entitled to a consideration of the points raised and considered by the lower Court, in this Letters Patent Appeal. Therefore, without remitting the matter, we ourselves have decided to go through the evidence and then arrive at a conclusion.” 7. Hence from all the three judgments, it is clear that this Court has held that the requirement of Order 41, Rule 31 C.P.C., is to frame the points for consideration and-its determination in order to enable the Court to consider all the relevant materials i.e., the pleadings, the documentary and oral evidence pertaining to the issues framed by the lower Court and the judgment has to be delivered. Where no points for determination have been framed it has been held that it vitiates the judgment. Where points for determination have been framed and the lower appellate Court has not considered the materials available on record, then it is open to this Court to consider the points for determination. Where no points for determination have been framed it has been held that it vitiates the judgment. Where points for determination have been framed and the lower appellate Court has not considered the materials available on record, then it is open to this Court to consider the points for determination. Where the points for determination had been framed and not considered elaborately or in detail, covering the issues involved in the suit, then also this Court can scrutinise the judgment of the lower appellate Court as to whether the lower appellate Court has considered all the materials available on record and discuss the matter and gave a finding. 8. Considering all these aspects, only where the points for determination have not been framed, that would affects the judgment. In other cases it has to be considered whether the lower appellate Court has taken into consideration the materials available on record along with pleadings and gave a finding. In this case, the lower appellate Court, after extracting the pleadings, has framed the following points: i. whether the appeal is to be allowed? ii. what is the other relief? These issues have been framed after extracting the points raised in the memorandum of grounds. 9. The fusi issue is to consider the question as to whether the appeal has to be allowed on the basis of the extracted points raised in the Memorandum of Appeal. It goes without saying that the lower appellate Court has framed the issue only on the basis of the points raised in the memorandum of grounds in the first appeal. The lower appellate Court has taken into consideration all the entire materials available on record and allowed the appeal. As already stated, it is not the case of the counsel for the petitioner that the lower appellate Court has failed to consider any of the materials available on record which is either in favour of the petitioner or adverse to the respondent herein. 10. The Review Petition has been filed only on the short ground that Order 41, Rule 31 C.P.C., has not been complied with. 10. The Review Petition has been filed only on the short ground that Order 41, Rule 31 C.P.C., has not been complied with. When the lower appellate Court has framed the points for consideration and has taken into consideration all the materials available on record and discuss the same and arrived at the conclusion, I am of the view that there is no merit in the contention of the counsel for the petitioner; except to say that it is a too technical plea to be entertained. Unless it is established that the non-framing of the issues; that too non-framing of the proper point for consideration has resulted in the non-consideration of the materials available on record by the lower appellate Court and thereby the lower appellate Court committed an error, I am of the view that the findings of the lower appellate Court cannot be interfered with and when the findings of the lower appellate Court cannot be interfered with, there is absolutely no need to entertain the Second Appeal on a technical ground which is of no use. 11. Accordingly I find that the review application is devoid of any merits and the same is dismissed.