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2013 DIGILAW 704 (PAT)

Krishna Kumar Singh v. Nikeshwar Singh

2013-06-26

AHSANUDDIN AMANULLAH, S.N.HUSSAIN

body2013
S. N. Hussain & Ahsanuddin Amanullah, JJ. – Heard learned counsel for the parties. 2. This Letters Patent Appeal has been filed by the plaintiff-appellant challenging judgment dated 09.04.1997 by which the learned Single Judge dismissed F.A. No.285 of 1976 filed by the appellant challenging judgment and decree of the trial Court by which his suit was dismissed. 3. A preliminary objection has been raised by learned counsel for the appellant that the said judgment of the First Appeal has been passed violating the provisions of Rule 31 of Order XLI of the Code of Civil Procedure and hence the judgment in question be set aside on this point only. 4. On the other hand, learned counsel for the respondents vehemently opposes the contention of learned counsel for the appellant and submits that the appellate court has affirmed the order of the trial Court and hence he was not required to go into such details as was required in a judgment of reversal. He further submits that the first appellate court has also considered the relevant materials and pleadings. 5. Considering the averments made by learned counsel for the parties and the materials on record and the position in law it transpires that the main contention is with respect to the provisions of Rule 31 of Order XLI of the Code of Civil Procedure which provides that 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 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. 6. In the said circumstances, it is mandatory for the appellate court to frame points for determination and only thereafter to decide each point on the basis of pleadings and evidence and give its findings accordingly. However, from a bare perusal of the impugned judgment it transpires that the said appeal has been decided without framing any point for determination in the appeal. Hence, the same is clearly against the specific provisions of law. 7. However, from a bare perusal of the impugned judgment it transpires that the said appeal has been decided without framing any point for determination in the appeal. Hence, the same is clearly against the specific provisions of law. 7. In this connection, reference may be made to a decision of the Apex Court in case of B. V. Nagesh and another vs. H. V. Sreenivasa Murthy reported in (2010) 13 S.C.C. 530 in which it was held that the first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law and hence the judgment of the appellate court must 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 first 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. 8. From a bare perusal of the impugned judgment it transpires that neither any issue has been framed nor first appeal has been decided after considering the pleadings and evidence with respect to the issues involved in the first appeal. 9. In the said circumstances, this Court cannot legally affirm the impugned judgment of the learned Single Judge dated 09.04.1997 passed in F.A. No.285 of 1976 and the same is set aside and hence this Letters Patent Appeal is allowed and the matter is remanded to the learned Single Judge to consider the aforesaid first appeal afresh after framing issues in accordance with the aforesaid provisions of law by deciding those issues in accordance with the pleadings and evidence of the parties.