IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN REGULAR SECOND APPEAL No.1076 of 2012 (SP) BETWEEN:
ABDUL JALLEEL @ JALLEEL AHMED, S/O EBRAHIMSAB, AGED ABOUT 55 YEARS, RESIDENT OF KACHIGHAR STREET, CHANNARAYAPATNA, CHANNARAYAPATNA TALUK, HASSAN DISTRICT – 586 601.
... APPELLANT (BY SRI CHANDRASHEKAR C.CHANASPUR, ADVOCATE) AND:
SMT. LEELAVATHI, W/O S.K. YOGESH, AGED ABOUT 37 YEARS, RESIDENT OF SRIDEVI EXTENSION, CHANNARAYAPATNA, CHANNARAYAPATNA TALUK, HASSAN DISTRICT – 586 601.
... RESPONDENT (BY SRI H.N.M. PRASAD, ADVOCATE) THIS RSA IS FILED UNDER SECTION 100 OF THE CIVIL PROCEDURE CODE, AGAINST THE JUDGMENT AND DECREE DATED 03.03.2012 PASSED IN R.A.No.18/2010 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, CHANNARAYAPATNA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 04.11.2009 PASSED IN O.S.NO.7/2005 ON THE FILE OF THE CIVIL JUDGE (SR.DN.), CHANNARAYAPATNA.
THIS RSA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This second appeal is filed by the defendant assailing the judgment and decree passed by the Civil Judge (Sr.Dn.), Channarayapatna, in O.S.No.07/2005 dated 04.11.2009 and the same was confirmed by the Fast Track Court, Channarayapatna, in RA.No.18/2010 dated 03.03.2012.
2. Heard the arguments of learned counsel for the appellant as well as the respondent.
3. The status of the parties before the Trial Court is retained for the sake of convenience.
4. The brief facts of the case of the plaintiff before the trial Court is that the plaintiff (respondent herein) filed the suit for specific performance seeking relief to direct the defendant to execute the sale deed in pursuance of the agreement of sale dated 22.10.2003. After the contest of the suit, the trial Court has decreed the suit by judgment and decree dated 04.11.2009. Assailing the said judgment and decree, the defendant preferred an appeal before the Fast Track Court, Channarayapatna (hereinafter referred to as the “1st Appellate Court”) in RA.No.18/2010. The 1st Appellate Court after hearing the arguments of the parties, dismissed the appeal filed by the defendant by judgment and decree dated 03.03.2012. Assailing the judgments of the court below, the defendant filed RSA.No.38/2011 before this Court. After hearing the arguments of the parties, at the stage of admission, this Court framed the following substantial question of law for consideration:
“Whether the first Appellate Court is legally correct in holding that the appellant has not raised a ground in the memorandum of appeal with regard to the execution of agreement of sale and that there is no argument on that point?”
5. After considering the judgment of the 1st Appellate Court, this Court has held that the 1st Appellate Court has not formed point for consideration and formed only one point in respect of paragraph No.19 of the earlier judgment of the 1st Appellate Court, which reads as under:
“It is important to note that in the appeal the defendant has not raised any ground questioning the correctness of the findings of the court below on issue No.1”.
6. This Court with regard to finding of the trial Court on issue No.1 about execution of agreement of sale is concerned has held that the finding of the 1st Appellate Court is factually incorrect and the substantial question of law framed was answered in negative and the matter was remanded back to the 1st Appellate Court for fresh consideration with a direction to dispose of the matter by fixing the date not later than 3 months from 28.09.2011. After remanding, the matter was taken up by the 1st Appellate Court and disposed of the appeal by judgment and decree dated 03.03.2012. Assailing the said judgment and decree, defendant preferred this second appeal before this Court.
7. Learned counsel for the appellant has contended that in spite of remanding the matter with a specific direction to dispose of the matter by formulating point for consideration as required under Order XLI Rule 31 of Civil Procedure Code (for short “CPC”), but the 1st Appellate Court again committed an error and not formulated the point for consideration. The 1st Appellate Court has formulated the ditto point as formulated in the earlier judgment and disposed of the matter. Therefore, the learned counsel prays for allowing the appeal and reversing the judgments of the courts below.
8. Per contra, the learned counsel for the respondent has supported the judgments of the courts below and strenuously contended that though the 1st Appellate Court has not formulated the point for consideration as required under Order XLI Rule 31 of CPC, but in the body of the judgment, the 1st Appellate Court has re-appreciated the evidence on record and rightly dismissed the appeal. Therefore, it is contended that there is no necessity for this Court to remand or allow the appeal and prays for dismissal of the appeal.
9. Upon hearing the arguments, the following substantial question of law arises for consideration:
“Whether the 1st Appellate Court committed an error in not disposing of the case as per Order XLI Rule 31 of CPC despite of remanding the matter by this Court in RSA.No.38/2011 dated 08.09.2011?”
10. On perusal of the record, the trial Court framed six issues, out of which, issue Nos.1, 2 and 5 were answered in affirmative and issue Nos.3 and 4 were answered in negative. While allowing the appeal, the 1st Appellate Court at the first instance in the judgment dated 31.08.2010 has formulated three points for consideration, which reads as under:
1. Whether the defendant has shown sufficient cause for delay in filing the appeal?
2. Whether the court below has committed error in appreciating the oral and documentary evidence available on record?
3. What order?
and after the remand, the matter was taken up by the same Judge and again formulated the above same points for consideration.
11. On perusal of the points formulated by the 1st Appellate Court, it is noticed that the points formulated in the earlier judgment and subsequent judgment after remanding the matter by this Court are one and the same. The points are not formulated as required under Order XLI Rule 31 of CPC.
12. Order XLI Rule 31 of CPC reads as under:
“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”.
13. Admittedly, on perusal of the impugned judgment though omnibus discussions were made and dismissed the appeal, but not formulated any proper point by the 1st Appellate Court as required under Order XLI Rule 31 of CPC. Though, lengthy discussions were made, but there is no specific point raised or findings given while confirming the judgment of the trial Court in the suit. Therefore, on the same point, it is clearly held that the 1st Appellate Court has committed error in not formulating proper point as required under Order XLI Rule 31 of CPC and not followed the direction of this Court in RSA.No38/2011 dated 08.09.2011. Therefore, the judgment and decree passed by the 1st Appellate Court requires interference by this Court. Hence, the matter is required to be remitted back for fresh consideration to consider the appeal in accordance with law as stated supra. Accordingly, I answer the substantial question of law in favour of the appellant. Therefore, I pass the following ORDER The appeal is allowed. The judgment and decree passed by the 1st Appellate Court in RA.No.18/2010 dated 03.03.2012 is set aside and the matter is remitted back to the 1st Appellate Court with a direction to formulate proper points for consideration as required under Order XLI Rule 31 of CPC and dispose of the matter within three months from the date of receipt of the certified copy of this judgment.
The parties are directed to appear before the 1st Appellate Court on 18.11.2019 at 11.00 am., without expecting any further notice from the Court.
Send a copy of the judgment as well as LCR to the lower Court forthwith.
SD/- JUDGE PB