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2015 DIGILAW 2877 (ALL)

Rajesh Sharma Mishra v. Ram Singh Yadav

2015-09-14

MAHENDRA DAYAL

body2015
JUDGMENT Mahendra Dayal, J. The review-applicants have filed this application for review of the judgment and order dated 10.11.2014 passed by this Court in Second Appeal No.159 of 2008, whereby the second appeal was allowed and while setting aside the judgment and order dated 23.04.2008, passed by First Additional District Judge, Lucknow in Regular Civil Appeal No.197/2007, the appeal was remanded and the first appellate Court was directed to restore the appeal to its original number and dispose of the same in accordance with law, after giving opportunity of hearing to both the parties and after framing points of determination, as required under Order 41 Rule 31 CPC. 2. I have heard learned counsel for the parties and have perused the judgment as well as relevant case laws on the subject. 3. Learned counsel for the review-applicants has contended that this Court while disposing of the second appeal did not frame any substantial question of law, as required under the provisions of Code of Civil Procedure. This Court while disposing of the second appeal observed that the learned first appellate Court did not comply with the provisions of Order 41 Rule 31 CPC, which requires the first appellate court to frame points of determination before deciding the first appeal. The submission on behalf of the review-applicants is that although framing of points of determination is mandatory, but non formulation of points of determination does not render a ground for setting aside a judgment specially where the parties knew fully well that what was the point in issue and no prejudice is caused to any of the parties by non formulating of points of determination. The learned first appellate court while deciding the first appeal considered all the arguments of the parties and also dealt with the same in the judgment. It is not necessary for the court to frame points of determination at the initial stage. In some cases these points can be framed even at a later point of time or at the argument stage. The learned first appellate court has dealt with every aspect of the matter while deciding the first appeal and, therefore, this court ought not to have set aside the judgment of the first appellate court merely on the ground that the substantial points of determination were not framed by the learned first appellate court. The learned first appellate court has dealt with every aspect of the matter while deciding the first appeal and, therefore, this court ought not to have set aside the judgment of the first appellate court merely on the ground that the substantial points of determination were not framed by the learned first appellate court. It is not a case of parties that their arguments were not considered by the first appellate court. Thus, in the absence of any prejudice to any of the parties, non framing of points of determination would not vitiate the judgment of the first appellate court and render it to be illegal. Learned counsel for the review-applicants has relied upon two decisions of Hon'ble the Supreme Court reported in 2014 STPL (LE) 39179 SC, in which, it has been held by Hon'ble the Supreme Court that the substantial question of law can be formulated at the initial stage and in some exceptional cases at a later point of time even at the time of arguments provided the opposite party is put on notice thereon and is given proper opportunity to meet out the point. In another case relied upon by the review-applicants is reported in AIR 2008 SC 951 , in which, it has been held that non formulation of substantial questions of law will not render any judgment illegal if no prejudice is caused to any party. Thus, in view of the law laid down by Hon'ble the Supreme Court, this Court ought not to have set aside the judgment and remanded the matter back to the first appellate court for reconsideration when it was not pleaded that any prejudice was caused to any party. 4. Learned counsel appearing on behalf of the opposite parties has, on the other hand, submitted that so far as framing of substantial questions of law by this Court, while deciding the second appeal is concerned, this Court while admitting the appeal on 22.05.2008 clearly mentioned that appeal was being admitted on the substantial questions of law formulated at S.No. 1 & 6. Thus, it cannot be said that the second appeal was decided without formulating substantial question of law. Thus, it cannot be said that the second appeal was decided without formulating substantial question of law. Framing of points of determination by the first appellate Court under Order 41 Rule 31 CPC is a mandatory provision and this Court while deciding the second appeal has discussed in detailed that the learned first appellate Court did not frame any points of determination before hearing the appeal. It has also been submitted by the learned counsel for the opposite parties that the second appeal has not been decided on merit, it has been allowed on technical ground and it is clearly mentioned in paragraph 11 of the judgment that without entering into the merits of second appeal, the judgment of the first appellate Court was being set aside and the matter was being remanded back to the first appellate Court. There is, therefore, no illegality or error apparent on the face of record to invoke the power of review under Order 47 Rule 1 CPC. It has been argued by the learned counsel for the opposite parties that the scope of review of a judgment is very limited. Under the provisions of Order 41 Rule 1 CPC, the Court can invoke the power of review only in case where there is any error apparent on the face of record. The power of review does not empower the court to reconsider the merit and rehear the matter. In this case, the review-applicants have failed to indicate any error apparent on the face of record and as such the review application is devoid of merit is liable to be dismissed. 5. After having heard learned counsel for the parties and after perusal of the record, I find that this court while admitting the second appeal specifically mentioned that the second appeal was being admitted on the substantial questions of law formulated at S.No.1 and 6 in the memo of appeal. Thus, it cannot be said that the second appeal was decided without formulating the substantial question of law. Moreover, the second appeal was not decided on merit, but it was allowed on technical ground that the learned first appellate Court did not frame any point of determination before deciding the first appeal. As held by this Court in the case of Durga Tiwari & Ors. Moreover, the second appeal was not decided on merit, but it was allowed on technical ground that the learned first appellate Court did not frame any point of determination before deciding the first appeal. As held by this Court in the case of Durga Tiwari & Ors. vs. Savitri Devi & Ors., reported in 2015 (33) LCD Page 902 : 2015 (2) ARC 556 , framing of points of determination as required under Order 41 Rule 31 CPC is necessary. Although non-compliance with the provisions of Order 41 Rule 31 CPC may not vitiate a judgment and make it void and may be ignored if there has been substantial compliance with it, but it has to be examined keeping in view of the facts and circumstances of each case. It is no doubt desirable that the appellate court should comply with the requirements of Order 41 Rule 31 CPC. This Court while allowing the second appeal has discussed in detailed that the compliance of Order 41 Rule 31 CPC has not been made and keeping in view of this legal position, this Court allowed the second appeal on technical ground and remanded the matter back to the first appellate Court with direction to frame points of determination and then decide the appeal after giving opportunity of hearing to both the parties. 6. From the discussions made here-in-above, I do not find any error apparent on the face of record to invoke the power of review. The review application is devoid of merit and is liable to be dismissed. 7. The review application is hereby dismissed.