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2017 DIGILAW 2554 (ALL)

Shubh Karan v. Kali Deen

2017-11-06

RITU RAJ AWASTHI

body2017
JUDGMENT : 1. Heard. 2. This second appeal has been filed under Section 100 C.P.C. against the judgment and decree dated 24.8.2012 passed in Civil Appeal No. 56 of 2009 as well as the judgment and decree dated 31.3.2009 passed in Original Suit No. 178 of 2000. 3. As per the given facts of the case the plaintiff/respondent had filed a regular suit which was registered as Original Suit No. 178 of 2000 against the appellant/defendant for prohibition as well as mandatory injunction in respect of a piece of land adjacent to the house of the appellant/defendant which after contest was partly decreed for prohibiting injunction only against the defendant/appellant vide judgment and decree dated 31.3.2009. 4. The appellant/defendant filed the first appeal against the aforesaid judgment in the Court of District Judge, Barabanki which has been dismissed with the cost vide impugned judgment and decree dated 24.8.2012. It is thereafter that the instant second appeal has been filed. 5. Learned counsel for the appellants submits that the impugned judgment and decree passed by the lower appellate court is illegal, unjust and perverse being not sustainable in the eye of law. 6. It is contended that it is mandatory for the lower appellate court to decide the appeal filed under Section 96 C.P.C. after framing the point of determination. It is further submitted that the requirement of law under Order 41 Rule 31 C.P.C. is mandatory and the lower appellate court is required to frame the point of determination while deciding the appeal filed under Section 96 C.P.C. which has not been done. It is submitted that this legal question has been considered in detail in the case of Kuldeep Saxena Vs. Smt. Archana Saxena & 6 others; Second Appeal No.309 of 2016 and vide order dated 21.8.2017 has given an authoritative decision. 7. Learned for the respondent, on the other hand, tried to submit that there is no infirmity or illegality in the impugned judgment and order. The findings of the two courts below are concurrent and have been recorded while appreciating the evidence supported with cogent reasons. It does not require any interference by this Court. 8. 7. Learned for the respondent, on the other hand, tried to submit that there is no infirmity or illegality in the impugned judgment and order. The findings of the two courts below are concurrent and have been recorded while appreciating the evidence supported with cogent reasons. It does not require any interference by this Court. 8. Vide order dated 2.11.2017 the appeal was admitted on the following substantial question of law: "Whether the first appellate court has made compliance of Order 41 Rule 31 C.P.C. and has framed the point of determination while passing the impugned judgment dated 24.8.2012 passed in Regular Civil Appeal No.56 of 2009." 9. With the consent of parties' counsel the appeal has been listed for hearing. 10. I have considered the submissions made by the parties' counsel. 11. In order to appreciate the contention of the parties, the provision of Order 41, Rule 31 C.P.C. is required to be considered first. The Order 41 Rule 31 C.P.C. is reproduced below:- "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 (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." 12. In the case of Kuldeep Saxena Vs. Smt. Archana Saxena & 6 others; Second Appeal No.309 of 2016 vide order dated 21.8.2017, the Court has considered various judgments on this point and has also taken into consideration the latest judgment of Apex Court in the case of A.M. Sangappa @ Sangappa Vs. Sangondeppa & Anr; 2014 (102) ALR 274, wherein the Hon'ble Apex Court 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. 13. 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. 13. 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 Anr. v. H.V. Sreenivasa Murthy (2010) 13 SCC 530 ." 14. In the case of Vinod Kumar vs. Gangadhar (2015) 1 SCC 391 , Hon'ble the Apex Court after taking into consideration the earlier judgment given by Hon'ble the Apex Court in the case of B. V. Nagesh and another vs. H. V. Sreenivasa Murthy (2010) 13 SCC 530 , Santosh Hazari vs. Purushottam Tiwari (Deceased) by Lrs. (2001) 3 SCC 179 has held as under :- "Being the first appellate court, it was the duty of the High Court to have decided the first appeal keeping in view the scope and powers conferred on it under Section 96 read with Order 41 Rule 31 ibid mentioned above. It was unfortunately not done, thereby, resulting in causing prejudice to the appellant whose valuable right to prosecute in the first appeal on facts and law was adversely affected which, in turn, deprived him of a hearing in the appeal in accordance with law. It is for this reason, we are unable to uphold the impugned judgment of the High Court." 15. This Court while pronouncing the judgment in the case of Kuldeep Saxena Vs. Smt. Archana Saxena & 6 others (supra) has also taken into consideration various judgments of this court as well as Apex Court on this point as well as the judgment of full bench of this Court in the case of Gopal Krishna Vs. This Court while pronouncing the judgment in the case of Kuldeep Saxena Vs. Smt. Archana Saxena & 6 others (supra) has also taken into consideration various judgments of this court as well as Apex Court on this point as well as the judgment of full bench of this Court in the case of Gopal Krishna Vs. 5th Additional District Judge, Kanpur and others; AIR 1981 Allahabad 300, wherein it has been held as under:- "The Supreme Court has dealt with the binding nature of its pronouncements in a number of decisions. It is not necessary to refer to those cases. In a case where a High Court finds any conflict between views expressed by larger and smaller Benches of the Supreme Court. the Supreme Court said that proper course for such a High Court is to follow the opinion expressed by larger Benches of the Supreme Court in preference to those expressed by smaller Benches of the Court (See State of U. P. v. Ram Chandra. AIR 1976 SC 2547 . 16. The difficulty, however, before us is slightly different. and is not covered by the authority cited above. We are faced with a situation where there are conflicts between the two decisions of the Supreme Court given by Judges of equal strength. We are not concerned here with reasons which led to these conflicts. 17. To the same effect is the view taken by a Full Bench of Karnataka High Court in Govindanaik G. Kalghatagi v. West Patent Press Co. Ltd. AIR 1980 Kant 92 and by Calcutta High Court in M/s. Sovachand Mulchand v. Collector of Central Excise and Land Customs AIR 1968 Cal 174 . Thus, what follows is that in the event of there being clear conflict, the decision of such latter Bench would be binding on us. 18. Counsel appearing for the petitioner submitted that since in Ram Swarup Rai's case (1980 ALL LJ 651) (SC) the earlier decision given in Ratan Lal Singhal's case AIR 1980 SC 635 had not been cited, the decision being in ignorance of a case which was binding on the Court is per incuriam. Counsel urged that Ram Swarup Rai's decision does not have a binding authority. We are unable to agree with the submission of the learned counsel for the petitioner. Counsel urged that Ram Swarup Rai's decision does not have a binding authority. We are unable to agree with the submission of the learned counsel for the petitioner. In Ballabhdas Mathuradas Lakhani v. Municipal Committee, Malkapur AIR 1970 SC 1002 , the Supreme Court held that a Supreme Court's judgment is binding on High Court and it cannot be ignored on ground that relevant provision was not brought to the notice of the Supreme Court. To us, it appears that it is only in cases of decision of concurrent Courts that the doctrine of per incuriam can be applied. Thus, the law declared by the Supreme Court cannot be ignored on that basis. A failure to cite authority of the earlier decision of the Supreme Court before it is not sufficient to render its latter decision per incuriam. Overruling a similar argument made in Ambika Prasad Misra v. State of U. P. AIR 1980 SC 1762 Krishna Iyer. J., agreed with the following observations made in Salmond 'Jurisprudence', page 215 (11th edition):- "A decision does not lose its authority merely because it was badly argued. inadequately considered and fallaciously reasoned." 19. We, therefore, cannot ignore the subsequent decision of the Supreme Court on the basis of the same being per incuriam. 20. To the same effect is the law laid down by Jassel M. R. in Baker v. White (1877) 5 Ch D 183(7). We do not wish to express opinion on this aspect of the matter. We would only content ourselves by saying that since we are bound by the latter decision of the Supreme Court, we must follow the same. To us, it appears that the latter decision has impliedly overruled the earlier." 21. There is no reason to disagree with the view taken by this Court in the case of Kuldeep Saxena Vs. Smt. Archana Saxena & 6 others (supra). 22. In view of above, I am of the considered view that it is mandatory for the first appellate court to have framed points of determination while deciding the first appeal under Section 96 CPC. In the present case since the said requirement of law has not been fulfilled, as such, the first appellate court has committed illegality in not making compliance of Order 41 Rule 31 CPC. As such, the impugned judgment is not sustainable in the eyes of law. 23. The second appeal is allowed. In the present case since the said requirement of law has not been fulfilled, as such, the first appellate court has committed illegality in not making compliance of Order 41 Rule 31 CPC. As such, the impugned judgment is not sustainable in the eyes of law. 23. The second appeal is allowed. 24. The matter is remanded back to the lower appellate court to decide the appeal afresh after making compliance of Order 41 Rule 31 CPC, in accordance with law expeditiously, as early as possible. Since the impugned judgment relates to the appeal filed in the year 2009, I hereby direct the lower appellate court to decide the appeal in the light of the observations made hereinabove, within a period of six months from the date certified copy of this order is produced before the Court. In case the Court is vacant the learned District Judge shall pass appropriate order for transfer of appeal to some other competent Court, where it may be decided in terms of the directions issued above.