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2015 DIGILAW 232 (ALL)

Durga Tiwari v. Savitri Devi

2015-02-05

SUDHIR AGARWAL

body2015
JUDGMENT Sudhir Agarwal, J. 1. Heard Sri Dhruva Narayna, learned Senior Advocate, assisted by Sri Namit Srivastava, learned counsel for appellants and Sri Dhirendra Pratap Singh, Advocate, holding brief of Sri Anand Kumar, learned counsel for respondents. 2. As requested by learned counsel for the parties I proceed to hear and decide this matter finally at this stage after hearing counsel for the parties under Order 41 Rule 11/13 C.P.C. 3. This is a defendants' second appeal under Section 100 C.P.C. Original Suit No. 341 of of 2000 instituted by plaintiffs was dismissed by Trial Court vide judgment and decree dated 30.10.2013, whereagainst plaintiffs filed Civil Appeal No. 95 of 2013, which has been allowed by Lower Appellate Court vide impugned judgment and decree dated 21.10.2014, hence this appeal. 4. The following substantial question of law is involved in this matter which needs consideration: "Whether the judgment passed by Lower Appellate Court is vitiated on account of non compliance of mandatory requirement of Order 41 Rule 31 C.P.C.?" 5. Learned counsel for the appellants contended that a bare perusal of judgment shows that the Lower Appellate Court without formulating the issues required to be decided by it and without adjudicating the same giving his own reasons has allowed appeal filed by plaintiffs and set aside the judgment of Trial Court. 6. A bare perusal of aforesaid judgment fortify the submission advanced by learned counsel for the appellants and learned counsel appearing for respondents also could not dispute that judgment in question does not satisfy the requirement of law in which the Lower Appellate Court was required to decide appeal. 7. It cannot be doubted that Lower Appellate Court has to render the judgment consistent with provision of Order 41, Rule 31 C.P.C. The findings recorded and inference drawn as also reasons assigned by Trial Court must have to be reversed by Lower Appellate Court after discussing the same. An otherwise judgment of reversal cannot be passed. 8. In S.V.R.Mudaliar (Dead) by Lrs. and Ors. Vs. Rajabu F.Buhari (Mrs) (Dead) by Lrs. and Ors. An otherwise judgment of reversal cannot be passed. 8. In S.V.R.Mudaliar (Dead) by Lrs. and Ors. Vs. Rajabu F.Buhari (Mrs) (Dead) by Lrs. and Ors. AIR 1995 SC 1607 , the Court in paras 14 and 15 of the judgment has upheld the contention that though the appellate court is within its right to take a different view on the question of fact, but that should be done after adverting to the reasons given by trial court in arriving at the findings in question. The Appellate Court before reversing a finding of fact has to bear in mind the reasons ascribed by Trial Court. The Apex Court relied and followed earlier decision of Privy Council in Rani Hemant Kumari Vs. Maharaja Jagadhindra Nath, 10 CWN 630 and in para 15 of the judgment said: "There is no need to pursue the legal principle, as we have no doubt in our mind that before reversing a finding of fact, the appellate court has to bear in mind the reasons ascribed by the trial court. This view of ours finds support from what was stated by the Privy Council in Rani Hemant Kumari Vs. Maharaja Jagadhindra Nath, (1906) 10 Cal.W.N. 630, wherein, while regarding the appellate judgment of the High Court of judicature at Fort William as "careful and able", it was stated that it did not "come to close quarters with the judgment which it reviews, and indeed never discusses or even alludes to the reasoning of the Subordinate Judge." 9. Following the above decision Hon'ble B.L.Yadav, J in Smt. Sona Devi Vs. Nagina Singh and Ors. AIR 1997 Patna 67 observed that whenever judgment of lower Appellate Court is a judgment of reversal, it is the primary duty of Appellate Court while reversing the findings of Trial Court to consider the reasons given by Trial Court and those reasons must also be reversed. Unless that is done, judgment of lower Appellate Court cannot be held to be consistent with the requirement of Order 41, Rule 31, which is a mandatory provision. 10. The above view has also been followed recently in Jaideo Yadav Vs. Unless that is done, judgment of lower Appellate Court cannot be held to be consistent with the requirement of Order 41, Rule 31, which is a mandatory provision. 10. The above view has also been followed recently in Jaideo Yadav Vs. Raghunath Yadav & Anr., 2009(3) PLJR 529 wherein the Court said that Trial Court recorded its findings but lower Appellate Court had not reversed the said findings and rather on the basis of some findings of its own, appeal was allowed by lower Appellate Court without appreciating findings of Trial Court on the concerned issue. The court then said : "The law is well settled in this regard that where the judgment of the lower appellate court is a judgment of reversal it is primary duly of the appellate court to consider the reasons given by the trial court and those reasons must also be reversed." 11. This court has also followed the same view in Doodhnath and Anr. Vs. Doodhnath and Anr., AIR 2006 Allahabad 3. 12. Framing of point of determination as required under Order 41 Rule 31 C.P.C. is necessary. In G. Amalorpavam and others Vs. R.C. Diocese of Madurai, 2006(3) SCC 224 , the Court said: "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." (emphasis added) 13. In Santosh Hazari Vs. Purushottam Tiwari, 2001(3) SCC 179 , dealing with question of compliance of Order 41 Rule 31 C.P.C., the Court said: "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. 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. 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." 14. In Union of India and another Vs. Ranchod and others, 2007 (14) SCC 326 referring to earlier decisions in Santosh Hazari (supra) and G. Amalorpavam (supra) the Court found that there was a complete non-compliance of Order 41 Rule 31, hence set aside the judgment of Appellate Court observing in para 10 of the judgment as under: "10. In Union of India and another Vs. Ranchod and others, 2007 (14) SCC 326 referring to earlier decisions in Santosh Hazari (supra) and G. Amalorpavam (supra) the Court found that there was a complete non-compliance of Order 41 Rule 31, hence set aside the judgment of Appellate Court observing in para 10 of the judgment as under: "10. 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." 15. In B.V. Nagesh and another Vs. H.V. Sreenivasa Murthy, 2010(13) SCC 530 , the Court in para 4 of the judgment said: "4. ....Rule 31 mandates that the judgment of the appellate Court shall state: (a) the points for determination; (b) the decision thereon; (c) reasons for the decision; and- (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. 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 law, 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. 16. In H. Siddiqui Vs. A. Ramalingam, 2011(4) SCC 240 , the Court after referring Order 41 Rule 31 C.P.C., in para 18 of the judgment said: "18. The said provisions provide guidelines for the appellate court as to how the court has to proceed and decide the case. 16. In H. Siddiqui Vs. A. Ramalingam, 2011(4) SCC 240 , the Court after referring Order 41 Rule 31 C.P.C., in para 18 of the judgment said: "18. 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. 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." 17. This has been followed subsequently also in United Engineers and Contractors Vs. Secretary of Govt. of A.P. and others, AIR 2013 SC 2239 and A.M. Sangappa @ Sangappa Vs. Sangondeppa and another, 2014 (2) AWC 1153 (SC). 18. In the present case, since Lower Appellate Court, in my view, has not considered the matter in accordance with law correctly and there is no compliance of Order 41, Rule 31 C.P.C, the question formulated above is answered in favour of the appellants. 19. In the result, the appeal is allowed. The judgment and decree dated 21.10.2014 passed by Lower Appellate Court is hereby set aside and the Civil Appeal No. 95 of 2013 is hereby restored. 19. In the result, the appeal is allowed. The judgment and decree dated 21.10.2014 passed by Lower Appellate Court is hereby set aside and the Civil Appeal No. 95 of 2013 is hereby restored. The Lower Appellate Court is directed to decide appeal afresh in accordance with law, expeditiously, and in any case within a period of three months from the date of production of a certified copy of this order, subject to other business of the court.