[1.0] Present Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”) has been preferred by the appellant herein – original plaintiff to quash and set aside the impugned judgment and decree dated 25.07.2005 passed by the learned trial Court learned 4th Additional Sr. Civil Judge, Nadiad in Regular Civil Suit No.235 of 2003 as well as the impugned judgment and order dated 29.02.2012 passed by the learned Appellate Court – learned 7th (Adhoc) Additional District Judge, Kheda at Nadiad in Regular Civil Appeal No.332 of 2005 by which the learned lower Appellate Court has dismissed the said Appeal preferred by the appellant herein – original plaintiff by confirming the judgment and decree passed by the learned trial Court dismissing the suit. [2.0] Facts leading to filing of the present Second Appeal in nut shell are as under:
[2.1] That the appellant herein – original plaintiff instituted Regular Civil Suit No.235 of 2003 against the respondent herein – original defendant in the Court of learned Civil Judge (Senior Division), Nadiad for specific performance of the Agreement to Sale. That the learned trial Court framed the issues and on appreciation on evidence the learned trial Court dismissed the suit and refused to pass the decree for specific performance of Agreement to Sale by judgment and decree dated 25.07.2005.
[2.2] Feeling aggrieved and dissatisfied with the impugned judgment and decree passed by the learned trial Court dismissing Regular Civil Suit No.235 of 2003, appellant herein – original plaintiff preferred First Appeal – Regular Civil Appeal No.332 of 2005 before the learned Appellate Court under Section 96 of the CPC and without framing any specific point for determination on the issues raised by the learned trial Court and solely raising the point for determination that whether the appellant proved that the judgment of the trial is against the established principles of law or whether the learned trial Court has committed an error apparent on the face of record and without even re appreciating the entire evidence on record and/or giving any specific finding on the issues raised by the learned trial Court and only in one paragraph has dismissed the said Appeal confirming the judgment and decree passed by the learned trial Court dismissing the suit.
[2.3] Feeling aggrieved and dissatisfied with the impugned judgment and order passed by both the Courts below more particularly impugned judgment and order passed by the learned Appellate Court dismissing the Appeal confirming the judgment and decree passed by the learned trial Court dismissing the suit and making grievance with respect to the manner in which the learned Appellate Court has dismissed the Appeal, the appellant herein – original plaintiff has preferred the present Second Appeal under Section 100 of the CPC.
[3.0] Shri Adeshra, learned advocate appearing on behalf of the appellant has vehemently submitted that the impugned order passed by the learned lower Appellate Court cannot be sustained. It is submitted that as such the learned Appellate Court has not exercised the appellate jurisdiction vested in it more particularly the exercising jurisdiction under Section 96 read with Order 41 Rule 31 of the CPC. It is submitted that the learned Appellate Court has not reappreciated the evidence on record and in just one paragraph and without even discussing the evidence on record and even without raising the points for determination on the basis of issues which were raised by the learned trial Court, the learned Appellate Court has dismissed the Appeal without even assigning any reasons.
[3.1] Shri Adeshra, learned advocate appearing on behalf of the appellant has heavily relied upon the decision of the Hon'ble Supreme Court in the case of B.V. Nagesh and Anr. vs. H.V. Sreenivasa Murthy reported in (2010)13 SCC 530 with respect to the powers to be exercised by the lower Appellate Court while deciding the Appeals under Section 96 of the CPC.
[3.2] It is further submitted that even the learned lower Appellate Court has not framed the points for determination on the basis of issues raised by the learned trial Court as required under Order 41 Rule 31 of the CPC. It is submitted that while deciding the Appeal under Section 96 of the CPC, the learned Appellate Court is required to frame the points for determination on the issues which were framed by the learned trial Court. It is submitted that in a given case if the learned lower Appellate Court has considered the case on merits and has considered all the issues in detail, in that case, despite the fact that points for determination are not framed as provided under Order 41 Rule 31 of the CPC, the Court may not set aside the order passed by the learned lower Appellate Court. It is submitted that in the present case the impugned judgment and order passed by the learned Appellate Court without framing the point for determination reflects the nonapplication of mind by the learned Appellate Court as the learned Appellate Court has not discussed anything on merits and from the impugned judgment and order passed by the learned Appellate Court, it can be said that there is no re appreciation of evidence by the learned Appellate Court which the learned Appellate Court is required to reappreciate while deciding the Appeal under Section 96 of the CPC.
[3.3] It is submitted that as such the learned Appellate Court has disposed of the Appeal under Section 96 of the CPC in most casual manner and only in one paragraph without even recording the submissions made by learned advocates appearing on behalf of respective parties.
[3.4] Shri Adeshra, learned advocate appearing on behalf of the appellant has also tried to submit the case on merits challenging the judgment and decree passed by the learned trial Court dismissing the suit and not passing the decree for specific performance of Agreement to Sale. However, for the reasons stated hereinafter, this Court is inclined to remand the matter to the learned lower Appellate Court to decide and dispose of the same in accordance with law and on merits and on re appreciation of evidence and after raising the point for determination on the issues framed by the learned trial Court.
[4.0] Though served nobody appears on behalf of respondent herein original defendant.
[5.0] Heard Shri Adeshra, learned advocate appearing on behalf of the appellant original plaintiff original appellant and considered the impugned judgment and order passed by the learned lower Appellate Court. At the outset it is required to be noted that while disposing of the Appeal, the learned lower Appellate Court has as such not raised the point for determination as required under Order 41 Rule 31 of the CPC. Even considering the impugned judgment and order passed by the learned Appellate Court, it appears that the learned Appellate Court has not discussed the entire matter and the issues in detail and as such it does not reveal that the learned Appellate Court reappreciated the evidence while deciding the First Appeal. It appears that the learned lower Appellate Court has framed the following points for determination only.
1. Whether the appellants proves that, judgment of Trial Court is against established principles of Law?
2. Whether the Ld. Trial Judge has committed error apparent on face on record?
3. What should be final order?
Except the above, no other points for determination has been raised by the lower Appellate Court. The aforesaid cannot be said to be raising the proper points for determination while deciding the Appeal under Section 96 of the CPC. As stated herein above there is no re appreciation of evidence by the learned lower Appellate Court. It also appears that the learned lower Appellate Court has not even raised the points for determination considering the issues framed by the learned trial Court. As observed by the Hon'ble Supreme Court in the case of B.V. Nagesh and Anr. vs. H.V. Sreenivasa Murthy reported in (2010)13 SCC 530, without framing points for determination and considering the facts and law, without proper discussion and assigning the reasons, the first Appellate Court cannot dispose of the First Appeal under Section 96 of the CPC and that too without raising the point for determination as provided under Order 41 Rule 31 of the CPC. As observed by the Hon'ble Supreme Court in the said decision, the Appellate Court has jurisdiction to refer/submit the findings of the trial Court. The First Appeal is a valuable right of the parties and unless restricted by law, the whole case is open for rehearing both on question of fact and law. It is further observed by the Hon'ble Supreme Court in the said decision that 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 putforth and pressed by the parties for decision of the Appellate Court. It is further observed that considering as a Court of First Appeal, it is the duty of the Appellate Court to deal with all the issues and the evidence led by the parties before recording its findings.
[5.1] In the said decision, the Hon'ble Supreme Court has also considered how the regular First Appeal is to be disposed of by the first Appellate Court. In para 3 of the said decision, the Hon'le Supreme Court has observed and held as under:
3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions, Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court 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.
[5.2] It is true that in the case of G. Amalorpavam and Ors. vs.
R.C. Diocese of Madurai and Ors. reported in (2006)3 SCC 224, the Hon'ble Supreme Court has also observed that if it is possible to make out from the judgment that there is substantial compliance with the requirements of order 41 Rule 31 of the CPC and that justice has not thereby suffered, would be sufficient and merely because specific point for determination are not raised, the judgment and order passed by the learned lower Appellate Court is not required to be set aside. However, for that there must be a substantial compliance with the provisions of Order 41 Rule 31 of the CPC and the second Appellate Court is in a position to assign findings of the lower Appellate Court. In para 8 of the said decision, the Hon'ble Supreme Court has observed and held as under:
8. The question whether in a particular case there has been a 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. Noncompliance 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 second 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. Where the appellate court has 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 Sec. 100 of the Code of Civil Procedure.
[5.3] In the case of State Bank of India and Anr. vs. Emmsons International Limited and Anr. reported in (2011) 12 SCC 174 while considering the scope and ambit of exercise of powers under Section 96 of the CPC by the Appellate Court and relying upon the decision of the Hon'ble Supreme Court in the case of Madhukar vs. Sangram reported in (2001) 4 SCC 756 and relying upon another decision of the Hon'ble Supreme Court in the case of H.K.N. Swami vs. Irshad Basith reported in (2005)10 SCC 243 and the decision in the case of Jagannath vs. Arulappa reported in (2005)12 SCC 303, it is held that considering as a Court of First Appeal, it is the duty of the Appellate Court to deal with all the issues and the evidence led by the parties before recording its findings.
[5.4] Considering the impugned judgment and order passed by the learned lower Appellate Court, it appears to the Court that the impugned judgment and order passed by the learned Appellate Court cannot be sustained. There is no reappreciation of evidence by the learned Appellate Court. No specific points for determination arising out of the issues framed by the learned trial Court and even considering the controversy in the matter has been raised by the learned lower Appellate Court. That the learned Appellate Court has raised only two points for determination as referred to hereinabove. Considering the above points for determination, it cannot be said that there is a substantial compliance of order 41 Rule 31 of the CPC. Raising the point for determination that whether the appellant proves that the judgment of trial Court is against established principles of law or whether the learned trial Judge has committed an error apparent on the face of record cannot be said to be raising proper points for determination. Considering the Order 41 Rule 31 of the CPC, the Appellate Court is required to raise the points for determination considering the issues raised by the learned trial Court and the controversy in the matter. To raise the point for determination whether the judgment and order passed by the learned Appellate Court is correct or not, cannot be said to be raising the proper points for determination. While framing the points for determination as required under Order 41 Rule 31 of the CPC, the learned Appellate Court is required to frame points for determination considering the issues framed by the learned trial Court and the controversy involved in the matter.
[5.5] Even otherwise considering the impugned judgment and order passed by the learned Appellate Court, the same cannot be sustained. Only in one paragraph the learned Appellate Court has disposed of the Appeal. Even the learned Appellate Court has not discussed submissions made by learned advocates appearing for respective parties and even has not given its own findings on the issues and the controversy raised in the matter. On the contrary the learned lower Appellate Court has disposed of the Appeal on wrong interpretation of law that the finding of facts of the lower court should not be disturbed unless it is against evidence and perverse. As such the learned lower Appellate Court was required to first reappreciate the evidence on record as if he is trying the suit / trial and as observed by the Hon'ble Supreme Court in the aforesaid decisions is required to come to its own conclusion. Under the circumstances, the impugned judgment and order passed by the learned lower Appellate Court is contrary to law laid down by the Hon'ble Supreme Court in the aforesaid decisions and against the established procedure of law.
[5.6] Under the circumstances, the impugned judgment and order passed by the learned lower Appellate Court dismissing the Appeal deserves to be quashed and set aside and the matter is to be remanded to the learned lower Appellate Court to decide and dispose of the same in accordance with law and on merits and after raising proper points for determination as required under Order 41 Rule 31 of the CPC and to raise proper points for determination considering the issues framed by the learned trial Court and the controversy in the matter and considering the aforesaid decisions of the Hon'ble Supreme Court.
[6.0] In view of the above and for the reasons stated above, present Second Appeal succeeds in part. Impugned judgment and order dated 29.02.2012 passed by the learned Appellate Court – learned 7th (Adhoc) Additional District Judge, Kheda at Nadiad in Regular Civil Appeal No.332 of 2005 is hereby quashed and set aside and the matter is remanded to the learned lower Appellate Court to decide and dispose of the same in accordance with law and on merits and after raising proper points for determination considering the issues framed by the learned trial Court as well as the controversy in the matter and on re appreciation of entire evidence on record and considering the aforesaid observations made by the Hon'ble Supreme Court. The aforesaid exercise shall be completed within a period of six months from the date of receipt of the present order. Present Second Appeal is allowed to the aforesaid extent. No costs. Registry is directed to send the writ of this order to the learned Appellate Court immediately. Registry is also directed to return the Record & Proceedings of the case to the learned lower Appellate Court immediately.
Sd/ (M.R. Shah, J.) menon