ADMIT. Shri Premal Joshi, learned advocate waives service of notice of Admission on behalf of respondent Nos.1 and 2. [1.0] Following substantial question of law arises in the present Second Appeal.
Whether the learned Appellate Court was justified in deciding and disposing of the Appeal under Section 96 of the Code of Civil Procedure, 1908 without framing any point for determination as required under Order 41 Rule 31 of the CPC?
[1.1] In the facts and circumstances of the case and with the consent of learned advocates appearing for respective parties, present Second Appeal is taken up for final hearing today.
[2.0] Present Second Appeal under Section 100 of the CPC has been preferred by the appellants herein original defendant Nos.1 and 3 to quash and set aside the impugned judgment and order dated 18.01.2012 passed by the learned District Judge, Jamnagar in Regular Civil Appeal No.1 of 2001 by which the learned Appellate Court has dismissed the said Appeal preferred by the appellants herein confirming the judgment and decree passed by the learned trial Court in Regular Civil Suit No.24 of 1995.
[3.0] Shri Suresh M. Shah, learned advocate appearing on behalf of the appellants herein original appellant Nos.1 and 3 original defendant Nos.1 and 3 has vehemently submitted that the learned Appellate Court has materially erred in deciding and disposing of the Appeal without framing proper points for determination as required under Order 41 Rule 31 of the CPC. In support of his above submission, he has relied upon the decision of this Court in the case of Prajapati Ambaram Nagarbhai & Anr. vs.
Prajapati Harjibhai & Ors. reported in 2010(2) GLH 551.
[3.1] On the other hand relying upon the decision of the Hon'ble Supreme Court in the case of G. Amalorpavam and Ors. vs. R.C. Diocese of Madurai and Ors. reported in (2006)3 SCC 224, it is submitted by Shri Premal Joshi, learned advocate appearing on behalf of respondent Nos.1 and 2 original plaintiffs that as observed and held by the Hon'ble Supreme Court in the said decision, even if in a particular case it has been found that the Appellate Court has decided and disposed of the Appeal without complying with the provisions of Order 41 Rule 31 of the CPC and without framing the points for determination still the judgment and order passed by the learned Appellate Court is not required to be quashed and set aside solely on the aforesaid ground.
[3.2] In the alternative it is submitted that if this Court is inclined to remand the matter to the learned Appellate Court, in that case, the parties may be directed to maintain statusquo as on today and the learned Appellate Court may be directed to frame the points for determination considering the issues which were framed by the learned trial Court. Shri Suresh M. Shah, learned advocate appearing on behalf of the appellants has stated at the Bar that the appellants would be satisfied if the matter is remanded to the learned Appellate Court to decide the same afresh after framing the points for determination on the basis of issues framed by the learned trial Court and in the meantime and till the final disposal of the Appeal before the learned Appellate Court, the parties are directed to maintain statusquo as on today. Learned advocates appearing on behalf of the respective parties have requested to make suitable observation that this Court has not expressed anything on merits in favour of either parties and the impugned judgment and decree is set aside solely on the ground that the learned Appellate Court has not framed the points for determination as provided under Order 41 Rule 31 of the CPC.
[4.0] Heard learned advocates appearing on behalf of respective parties at length and considered the impugned judgment and order passed by the learned Appellate Court. At the outset it is required to be noted that while deciding and disposing of the Appeal, the first Appellate Court has not framed points for determination as required under Order 41 Rule 31 of the CPC. Now, so far as reliance placed upon the decision of the Hon'ble Supreme Court in case of G. Amalorpavam and Ors. (Supra) by the learned advocate appearing on behalf of respondent Nos.1 and 2 is concerned, on facts the said decision would not be applicable to the facts of the present case. In the aforesaid decision the Hon'ble Supreme Court has not stated and/or laid down the law that despite not framing the points for determination as required under Order 41 Rule 31 of the CPC, the judgment is not in any manner vitiated by the absence of points for determination. In the said decision the Hon'ble Supreme Court has specifically observed and held that if from the judgment and order passed by the first Appellate Court it is found that there has been a substantial compliance with it and second Appellate Court is in a position to ascertain the findings of the lower Appellate Court, the judgment and order passed by the first Appellate Court is not required to be quashed and set aside solely on the ground that the learned first Appellate Court has not framed the points for determination. In para 8, 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.
[4.1] Now, considering the aforesaid observations of the Hon'ble Supreme Court and considering the impugned judgment and order passed by the learned Appellate Court it is required to be considered whether there is a substantial compliance with the provision of Order 41 Rule 31 of the CPC by the learned Appellate Court or not. From the impugned judgment and order passed by the learned Appellate Court, it appears to the Court that there is no specific finding given by the learned Appellate Court on the issues which were raised before the learned trial Court and the learned Appellate Court has not discussed the evidence on the same. Except in most of the paragraphs recording the submissions made by the learned advocates appearing for respective parties, the learned Appellate Court has not given its own independent findings on the issues which were raised before the learned trial Court, on reappreciation of evidence. Under the circumstances, the impugned judgment and order passed by the learned Appellate Court cannot be sustained and the same deserves to be quashed and set aside and the matter is required to be remanded to the learned Appellate Court to decide and dispose of the same in accordance with law and on merits and after framing the points for determination as required under Order 41 Rule 31 of the CPC and to frame point for determination considering the issues framed by the learned trial Court. As agreed by the learned advocates appearing for respective parties, during the pendency of the Appeal before the learned Appellate Court, both the parties to maintain statusquo as on today.
[5.0] In view of the above and for the reasons stated above and on the aforesaid ground alone and without further entering into the merits of the case and/or without expressing anything on merits in favour of either parties, impugned judgment and order dated 18.01.2012 passed by the learned District Judge, Jamnagar in Regular Civil Appeal No.1 of 2001 is hereby quashed and set aside and the matter is remanded to the learned Appellate Court to decide and dispose of the Appeal afresh in accordance with law and on merits and after framing proper points for determination considering the issues framed by the learned trial Court and on appreciation of evidence which was already on record. The aforesaid exercise shall be completed by the learned Appellate Court within a period of six months from the date of receipt of the present order. As agreed by the learned advocates appearing for respective parties, during the pendency and final disposal of the Appeal before the first Appellate Court, parties are directed to maintain statusquo as on today.
[5.1] With this present Second Appeal is allowed to the aforesaid extent. No costs.
Civil Application No.5033 of 2012 In view of disposal of main Second Appeal, Civil Application No.5033 of 2012 does not survive and the same is accordingly disposed of. Direct service of this order is permitted to the learned advocate appearing on behalf of respondent Nos.1 and 2.
menon (M.R. Shah, J.)