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2000 DIGILAW 544 (AP)

Nama Bhushaiah v. Sk. Chitha Bee

2000-07-27

V.ESWARAIAH

body2000
V. ESWARAIAH, J. ( 1 ) THIS appeal is filed against the judgment and decree dated 27-4-2000 made in A. S. No. 56 of 1992 on the file of the Court of additional District Judge, Khammam. ( 2 ) THE appellants herein are the legal representatives of the sole plaintiff. The sole plaintiff Sri N. Bhushaiah filed O. S. No. 612 of 1984 on the file of the I Additional district Munsif, Khammam for perpetual injunction against respondent Nos. 1 to 4 herein in respect of the suit schedule property admeasuring Ac. 3. 00 out of survey No. 421 situated at gundrathimadugu village (Kotha lalapuram) Khammam Taluq bounded by east: Land of Pasangulapati Appa rao south : Land of the plaintiff west: Road leading to Gubhagurthi from Pallipadu. North: Land of Sk. Meera out of sy. No. 421. ( 3 ) THE trial Court basing on the pleadings framed two issues which are as follows. (1) whether the plaintiff is entitled for the decree as prayed for? (2) To what relief? ( 4 ) THE trial Court considering the contentions of the respective parties and oral and documentary evidence adduced by them dismissed the suit, by judgment and decree dated 22-8-1991. Aggrieved by the same the plaintiff filed an appeal before the additional District Judge, Khammam in a. S. No. 56 of 1992. The same was dismissed by the appellate Court. Hence the plaintiffs therein preferred this appeal. ( 5 ) DEFENDANT Nos. 2 and 4 died. Therefore, the suit abates against them. ( 6 ) IT is the contention of the learned counsel for the appellant that under order 41 Rule 31 the appellate Court shall state the points for determination, the decision thereon, the reasons for the decision and where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. It is submitted that the point considered by the appellate Court for determination is not at all a point for determination as contemplated under Order 41 Rule 31 of the civil Procedure Code arid in support of his contention he has cited a judgment in case of Smt. Anitha vs. Abdul Wahid. It is submitted that the point considered by the appellate Court for determination is not at all a point for determination as contemplated under Order 41 Rule 31 of the civil Procedure Code arid in support of his contention he has cited a judgment in case of Smt. Anitha vs. Abdul Wahid. In that case the appellate Judge formulated the point which he is required to do under Order 41, rule 31 of Civil Procedure Code which is as follows:"the only point for my consideration is whether the judgment and decree of the trial Court are liable to be set aside. " ( 7 ) IN para 16 the Bombay High Court held as follows. I am constrained in inviting the attention of the Courts below to the provisions of Order 41 Rule 31 of the c. P. C. This provision deals with the judgment of the appeal Court and it says amongst other things that the judgment shall state the points for determination. When a requirement such as this is insisted upon by the procedural law of the land, one must try to understand the object and scope of this provision. Merely asking the question as to whether the judgment of the Court below is correct, legal or valid is hopelessly an inadequate method of meeting the requirement of this legal provision. I have with dismay noted several times in the judgments of the appeal Courts below the points for determination being formulated in the following manner: (1) Is the judgment of the Court below liable to be set aside? (2) Is the decree of the Court below liable to be interfered with? (3) Is the decree of the Court below valid? (4) Is the decree of the Court below proper and legal?these are some of the ways in which the Courts of first appeal have tended to formulate the points for determination. This manner ignores that O. 41 R. 31 (a) requires the appellate Court to state in its judgment the points that arise for determination after the arguments are advanced. Asking such vague questions as mentioned above will not lead to the pronouncement, of a well considered and reasoned judgment. . . . . . . This manner ignores that O. 41 R. 31 (a) requires the appellate Court to state in its judgment the points that arise for determination after the arguments are advanced. Asking such vague questions as mentioned above will not lead to the pronouncement, of a well considered and reasoned judgment. . . . . . . in making it incumbent on an appellate Court to raise points for determination was to clear up the pleadings and focus the attention of the Court and of the parties on the specific and rival contentions of the latfer. The points which must arise for determination by a Court of first appeal must cover all important questions involved in the case and they should not be general and vague. It is a matter of almost text book knowledge that the exact questions which arise in the appeal and require determination must be stated in the judgment. "it is not sufficient to state the point to be determined in appeal whether or not the decision is consistent with the merits of the case". The point so stated is hardly a point for determination as contemplated in o. 41 R. 31 of the Code. . . . The appeals must be also intelligently disposed of after taking note of the arguments advanced, the points arising from the arguments and other material and then deciding those points properly A failure to understand the object of the provision such as O. 41 R. 31 (a) of the code has demonstrably resulted in the instant case in the failure of justice at the hands of the lower appellate court. " ( 8 ) THE requirements of Order 41 Rule 31 should be complied in proper spirit and the judgment of the appellate Court should be in terms of the said rule. As per the requirement of the said rule depending upon the case to case, the Court shall properly consider all the questions raised and shall give reasons for its decision. ( 9 ) THE learned Counsel for the appellants contended that the Court below allowed la. Nos. 2540 of 1999, 2329 of 1999 and 301 of 2000 which were filed to receive the additional evidence before the appellate court, but the said Court has not considered the documents. ( 9 ) THE learned Counsel for the appellants contended that the Court below allowed la. Nos. 2540 of 1999, 2329 of 1999 and 301 of 2000 which were filed to receive the additional evidence before the appellate court, but the said Court has not considered the documents. ( 10 ) IN view of the aforesaid legal position, both the Counsel fairly agreed that this matter requires to be reconsidered by the lower appellate Court. Having regard to the facts and circumstances of the case the judgment and decree of the learned additional District Judge, Khammam dated 27-4-2000 in A. S. No. 56 of 1992 is set aside and the case is remitted back to the learned additional District Judge, Khammam to decide afresh within a period of four months from to-day and parties shall appear before the Court below on 23-8-2000 to obtain necessary orders. ( 11 ) IN the result, the appeal is allowed. No costs.