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2014 DIGILAW 1532 (ALL)

Sagir Ahmad v. Munni Devi

2014-05-12

ANIL KUMAR

body2014
JUDGMENT Anil Kumar,J.: - Heard Shri Mohd. Arif Khan, learned Senior Advocate, Shri R. P. Singh, learned counsel for the respondent and perused the record. 2. Facts in brief of the present case are that initially, plaintiffs/appellants filed a suit for permanent injunction on the ground that the property in dispute which consists of house situated at Vazirbag, Town-Bahraich is in their possession, purchased by their father by way of two sale deeds on 09.12.1959 and 24.09.1967. There are two doors in the east direction of the house and also Sahan as well as Nikas. After the way of Sahan, there is a public toilet which is used by the plaintiff's and their ancestors. However, respondents have no right or title in respect of the way in question shown in the map filed along with the plaint and tried to take possession of the way and want to make a construction therein, on 20.09.1992, and put the material/bricks over the land in dispute. So, the suit has been filed with the prayer that defendants may be restrained to do so, registered as Regular Suit No.1047 of 1992, dismissed by order dated 30.11.1994 passed by IVth Additional Munsif, Bahraich. 3. Aggrieved by the said facts, the plaintiff/appellant filed an appeal bearing Civil Appeal No.110 of 1994, dismissed by order dated 17.09.1998 passed by IInd Additional District Judge, Bahraich. 4. In view of the above said factual background, the present appeal has been filed, admitted on the following question of law : - 1. When the Court below is mislead and misconstrued the order dated 24.09.1967. 2. Whether the judgment passed by the court below is violation of the provision 41 and 31 C.P.C." 5. After hearing learned counsel for parties and going through the record, the admitted position which emerge out is to the effect that while passing the judgment and decree dated 17.09.1998 in Civil Appeal No.110 of 1994, the appellate court has not framed the point of determination as provided under Oder 41 Rule 31 CPC the said exercise is mandatory on the part of the appellate court as per judgment given by Hon'ble the Apex Court in the case of Union of India and another Vs. Ranchod and others, 2009 (27) LCD 407 has held as under: - "Section 54 of the Act, insofar as relevant for the purposes of the present appeals, says that subject to the provisions of the Code of Civil Procedure, 1908, applicable to appeals from original decrees, and notwithstanding anything to the contrary in any enactment for the time being in force, an appeal shall only lie in any proceedings under this Act to the High Court from the award, or from any part of the award of the Court. Order XLI CPC deals with appeals from original decrees. Order XLI Rule 31 lays down 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. This provision has come up for consideration in innumerable occasions and its meaning and scope has been explained. It is not necessary for us to refer to various decisions but we will refer to one of the recent judgments given in G. Amalorpavam and Ors. v. R.C. Diocese of Madurai, [2006] 3 SCC 224, wherein this Court observed as under: - "The question whether in a particular case there has been substantial compliance with the provisions of Order 41 Rule 31 CPC has to be determined on the nature of the judgment delivered in each case. Non-compliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it and the higher appellate court is in a position to ascertain the findings of the lower appellate court. It is no doubt desirable that the appellate court should comply with all the requirements of Order 41 Rule 31 CPC. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient. It is no doubt desirable that the appellate court should comply with all the requirements of Order 41 Rule 31 CPC. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient. Where the appellate court having considered the entire evidence on record and discussed the same in detail, come to any conclusion and its findings are supported by reasons even though the point has not been framed by the appellate court there is substantial compliance with the provisions of Order 41 Rule 31 CPC and the judgment is not in any manner vitiated by the absence of a point of determination. Where there is an honest endeavour on the part of the lower appellate court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations appearing on both sides is clearly manifest by the perusal of the judgment of the lower appellate court, it would be a valid judgment even though it does not contain the points for determination. The object of the rule in making it incumbent upon the appellate court to frame points for determination and to cite reasons for the decision is to focus attention of the court on the rival contentions which arise for determination and also to provide litigant parties opportunity in understanding the ground upon which the decision is founded with a view to enable them to know the basis of the decision and, if so considered appropriate and so advised, to avail the remedy of second appeal conferred by Section 100 CPC." 6. In Girja Nandini Devi v. Bijendra Narain Choudhury, AIR (1967) SC 1124, an observation was made that it is not the duty of the appellate court when it agrees with the view of the trial court on the evidence either to restate the effect of the evidence or to reiterate the reasons given by the trial court. Expression of general agreement with reasons given by the Court decision of which is under appeal would ordinarily suffice. 7. Expression of general agreement with reasons given by the Court decision of which is under appeal would ordinarily suffice. 7. The aforesaid observation in Girja Nandini Devi (supra) is often misunderstood and sometimes the courts while delivering a judgment of affirmance have adopted a shortcut method of not considering the evidence but merely expressing a general agreement with the reasons given by the trial court. This case was considered in Santosh Hazari v. Purushottam Tiwari, [2001] 3 SCC 179, wherein it was observed as below : - "The appellate court has jurisdiction to reverse or affirm the findings of the trial court. 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. The judgment of the appellate court must, therefore, 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. The task of an appellate court affirming the findings of the trial court is an easier one. The appellate court agreeing with the view of the trial court need not restate the effect of the evidence or reiterate the reasons given by the trial court; expression of general agreement with reasons given by the court, decision of which is under appeal, would ordinarily suffice (see Girja Nandini Devi v. Bijendra Narain Choudhury). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate court for shirking the duty cast on it. While writing a judgment of reversal the appellate court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact." There being total non-compliance of the mandatory provisions of Order XLI Rule 31 CPC we have no option but to set aside the judgment of the High Court and remand the matter to the High Court for fresh consideration of the appeals." 8. Hon'ble the Apex Court in the case of United Engineers and Contractors Vs. Secretary to Govt. A.P. And others, AIR 2013 SC 2239 has held as under: - "This Court has considered the scope of Order XLI Rule 31 Code of Civil Procedure in H. Siddiqui (dead) by L.Rs. v. A. Ramalingam , AIR 2011 SC 1492 and held as under: "The said provisions provide guidelines for the Appellate court as to how the court has to proceed and decide the case. The provisions should be read in such a way as to require that the various particulars mentioned therein should be taken into consideration. Thus, it must be evident from the judgment of the Appellate court that the court has properly appreciated the facts/evidence, applied its mind and decided the case considering the material on record. It would amount to substantial compliance of the said provisions if the Appellate court's judgment is based on the independent assessment of the relevant evidence on all important aspect of the matter and the findings of the Appellate court are well founded and quite convincing. It is mandatory for the Appellate court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final court of fact, the first Appellate court must not record mere general expression of concurrence with the trial court judgment rather it must give reasons for its decision on each point independently to that of the trial court. Thus, the entire evidence must be considered and discussed in detail. Being the final court of fact, the first Appellate court must not record mere general expression of concurrence with the trial court judgment rather it must give reasons for its decision on each point independently to that of the trial court. Thus, the entire evidence must be considered and discussed in detail. Such exercise should be done after formulating the points for consideration in terms of the said provisions and the court must proceed in adherence to the requirements of the said statutory provisions. (Vide: Thakur Sukhpal Singh v. Thakur Kalyan Singh and Anr. : AIR 1963 SC 146 ; Girijanandini Devi and Ors. v. Bijendra Narain Choudhary : AIR 1967 SC 1124 ; G. Amalorpavam and Ors. v. R.C. Diocese of Madurai and Ors. : (2006) 3 SCC 224 ; Shiv Kumar Sharma v. Santosh Kumari : AIR 2008 SC 171 ; and Gannmani Anasuya and Ors. v. Parvatini Amarendra Chowdhary and Ors. : AIR 2007 SC 2380 ). 9. In B.V. Nagesh and Anr. v. H.V. Sreenivasa Murthy, (2010) 10 SCC 55, while dealing with the issue, this Court held as under: The Appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. The first appeal is a valuable right of the parties and unless restricted by taw, the whole case therein is open for re-hearing both on questions of fact and law. The judgment of the Appellate Court must, therefore, 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 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. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. [Vide: Santosh Hazari v. Purushottam Tiwari AIR 2001 SC 965 and Madhukar and Ors. v. Sangram and Ors. : AIR 2001 SC 2171 ]." 10. Hon'ble the Apex Court in the case of A.M. Sangappa @ Sangappa Vs. [Vide: Santosh Hazari v. Purushottam Tiwari AIR 2001 SC 965 and Madhukar and Ors. v. Sangram and Ors. : AIR 2001 SC 2171 ]." 10. Hon'ble the Apex Court in the case of A.M. Sangappa @ Sangappa Vs. Sangondeppa and another, 2014 (102) ALR 274 has held as under : - "In a series of decisions, this Court has highlighted how a regular first appeal is to be disposed of, particularly, in the light of Order 41 Rule 31 Code of Civil Procedure. It mandates that the appellate Court has to frame points for determination, decision thereon, reasons for the decision and where the decree appealed from is reversed or varied, the relief to which the Appellant is entitled. Such recourse has not been followed by the High Court, while disposing of the regular first appeal. It is not in dispute 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. Accordingly, 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 by both the sides. These principles have been reiterated in B.V. Nagesh and another v. H.V. Sreenivasa Murthy: (2010) 13 SCC 530 ." 11. In the instant matter as the appellate court without following the procedure required under Order 41 Rule 31 Code of Civil Procedure passed the judgment and decree therefore, without entering into the merits , the impugned judgment and decree dated 17.09.1998 in Civil Appeal No.110 of 1994 passed by IInd Additional District Judge, Bahraich/appellate court is set aside and the matter is remanded to the appellate court to decide the first civil appeal in accordance with law . As the matter is quite old, I request the appellate court to dispose of the first appeal as early as possible . 12. With the above observations, the second appeal is allowed. 13. As prayed, it will be open for the parties to raise all grievances before the court below.