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2017 DIGILAW 1655 (ALL)

Parbhu Nath v. Ram Das

2017-07-14

ANIL KUMAR

body2017
JUDGMENT : ANIL KUMAR, J. 1. Heard Sri D.C. Jain, learned counsel for appellant Sri Tarun Kumar Pandey, learned counsel for respondents and perused the record. Facts in brief of the present case are that initially plaintiff-appellant has filed a suit for permanent injunction registered as Regular Suit No. 23 of 1984 (Prabhu Nath and others v. Ramjas and others), decreed by judgment and order dated 19.10.1981 passed my Munsic, 8th, Gonda, challenged by filing a Civil appeal No. 204 of 1981 (Ramjas v. Prabhunath), allowed by judgment and order dated 20.10.1982 2. After hearing learned counsel for parties and going through the record, the first and foremost question which is to be considered in the present case that if the appellate court reverse the judgment passed by the trial court then it is mandatory on the part of the said court to follow the provisions as provided under Order 41, Rule 31 CPC or not. 3. In the present case, the position which emerged out that the provisions as provided under Order 41, Rule 31 CPC has not been followed, in this regard, Hon'ble the Apex Court in the case of H. Siddiqui (Dead) By Lrs. v. A. Ramalingam, 2011 (4) SCC 240 , in para Nos. 21 and 22 held as under:- "21. 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. 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. (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 ; Amalorpavam and Ors. v. R.C. Diocese of madurai and Ors., (2006) 3 SCC 224 ; Shiv Kumar Shrma v. Santosh Kumari, (2007) 8 SCC 600 ; and Gannmani Anasuya and Ors. v. Parvatini Amarendra Chowdhary and Ors., AIR 2007 SC 2380 ) 19. In B.V. Nagesh and Anr. v. H.V. Sreenivasa Murthy JT (2010) 10 SC 551, 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 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. 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 Sqntosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179 and Madhukar and others v. Sangram and others, (2001) 4 SCC 756 ]" 4. Further, recently, Hon'ble the Supreme Court in the case of Laliteshwar Prasad Singh and Ors. v. S.P. Srivastava (D) thr. L.Rs., 2017 (2) SCC 415 , in para Nos. 11 and 12 held as under:- "11. As per Order 41, Rule 31 CPC, the judgment of the first appellate court must explicitly set out the points for determination, record its reasons thereon and to give its reasoning's based on evidence. Order 41, Rule 31 CPC reads as under: "Order XLI Rule 31: Contents, date and signature of judgment. 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 where the decree appealed from is reversed or varied, the relief to which the appellant is entitled; d. and shall at the time that it is propounded be signed and dated by the Judge or by the Judges concurring therein." It is well settled that the first appellate court shall state the points for determination, the decision thereon and the reasons for decision. However, it is equally well settled that mere omission to frame point/points for determination does not vitiate the judgment of the first appellate court provided that the first appellate court records its reasons based on evidence adduced by both the parties. 12. An appellate court is the final court of facts. The judgment of the appellate court must therefore reflect court's application of mind and record its findings supported by reasons. The law relating to powers and duties of the first appellate court is well fortified by the legal provisions and judicial pronouncements. Considering the nature and scope of duty of first appellate court, in Vinod Kumar Gangadhar (2015) 1 SCC 391 , it was held as under:- "12. In Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179 , this Court held as under: (SCC pp. 188-89, para 15) "15. Considering the nature and scope of duty of first appellate court, in Vinod Kumar Gangadhar (2015) 1 SCC 391 , it was held as under:- "12. In Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179 , this Court held as under: (SCC pp. 188-89, para 15) "15. 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: while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it." The above view has been followed by a three-Judge Bench decision of this Court in Madhukar v. Sangram (2001) 4 SCC 756 , wherein it was reiterated that sitting as a court of first appeal, it is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings." 5. From the perusal of the judgment passed by appellate court, it is clear that the appellate court has neither framed points of determination nor appellate court recorded reasons based on evidence led by the parties while reversing the judgment passed by the trial court, so the judgment passed by the appellate court is contrary to the provisions as provided under Order 41, Rule 31 CPC. 6. For the foregoing reasons, the appeal is allowed. Judgment and order dated 12.10.1982 passed by appellate court in Civil Appeal No. 204 of 1981 filed by (Ramjas (now deceased) and others v. Prabhu nath (deceased) and others) is set aside with a direction to that appellate court shall first formulate the point of determination as per the provisions of Order 41, Rule 31 CPC, thereafter hear the matter/appeal and decide on merit. The said exercise shall be done by the appellate court expeditiously, say, within a period of six months from the date of receiving certified copy of this order, if possible. 7. Office is directed to return the lower court record to the appellate court.