[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 appellants herein original defendants to quash and set aside the impugned judgment and order dated 19.10.2004 passed by the learned Appellate Court learned Joint District Judge & 9th Fast Track Court, Nadiad in Regular Civil Appeal No.27 of 2003 by which the learned Appellate Court has dismissed the said Appeal preferred by the appellants herein original defendants confirming the judgment and decree passed by the learned trial Court passing the decree for redemption of the mortgage with respect to the suit properties. [2.0] That the respondent original plaintiff instituted the Regular Civil Suit No.81 of 1999 against the appellants herein – original defendants in the Court of learned 3rd Joint Civil Judge (S.D.), Nadiad for redemption of mortgage of suit house and open land and for its possession against the appellants herein and the learned trial Judge decreed the suit of the original plaintiff – respondent herein.
[2.1] That being aggrieved and dissatisfied with the judgment and decree passed by the learned trial Court dated 25.03.2003 passed in Regular Civil Suit No.81 of 1999, original defendants preferred Regular Civil Appeal No.27 of 2003 before the learned District Court, Nadiad, and by impugned judgment and order dated 19.10.2004, the learned Appellate Court – learned Joint District Judge, 9th Fast Track Court, Nadiad has dismissed the said Appeal confirming the judgment and decree passed by the learned trial Court dismissing the suit.
[2.2] Feeling aggrieved and dissatisfied with the judgment and order/decree passed by both the Courts below more particularly the judgment and order passed by the learned Appellate Court dismissing the Appeal confirming the judgment and decree passed by the learned trial Court, without reappreciation of evidence on record and without giving any specific findings on those issues and without even raising the point for determination as required under Order 41 Rule 31 of the CPC, the original plaintiff has preferred the present Second Appeal under Section 100 of the CPC.
[3.0] At the outset it is required to be noted that while admitting the present Second Appeal, the learned Single Judge has framed the following substantial question of law.
Whether the judgment of the First Appellate Court is a judgment in the eye of law in view of the fact that no reasons are assigned for confirming the judgment and decree of the Trial Court?
[4.0] Having heard Shri Adeshra, learned advocate appearing on behalf of the appellants and Shri Bukhari, learned advocate appearing on behalf of the respondent and considering the impugned judgment and order passed by the learned Appellate Court it appears to the Court that the impugned judgment and order passed by the learned Appellate Court cannot be sustained. From the impugned judgment and order passed by the learned Appellate Court it appears that the learned Appellate Court has disposed of the Appeal preferred under Order 41 of the CPC read with Section 96 in a most casual and perfunctory manner. Apart from the fact that the learned Appellate Court has not framed the points for determination as required under Order 41 Rule 31 of the CPC, it appears that even the learned Appellate Court has not exercised the powers vested in it as a first Appellate Court. Learned Appellate Court has neither reappreciated the entire evidence on record nor has given any specific findings on the issues which were even raised before the learned trial Court. 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, in para 4 has observed and held as under:
“4. The appellate Court has jurisdiction to reverse/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 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. 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. [Vide Santosh Hazari v. Purushottam Tiwari, 2001(3) SCC 179 and Madhukar v. Sangram, 2001(4) SCC 756].”
[4.1] 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.
[4.2] Even in the recent decision in the case of H. Siddqui (Dead) By L.Rs. vs. A. Ramalingam reported in 2011(2) GLR 1429 in para 21, the Hon'ble Supreme Court has observed and 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. 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 & Anr., AIR 1963 SC 146; Girijanandini Devi & Ors. v. Bijendra Narain Choudhary, AIR 1967 SC 1124; G. Amalorpavam & Ors. v. R.C. Diocese of Madurai & Ors., (2006) 3 SCC 224; Shiv Kumar Sharma v. Santosh Kumari, (2007) 8 SCC 600; and Gannmani Anasuya & Ors. v. Parvatini Amarendra Chowdhary & Ors., AIR 2007 SC 2380 : 2007 (10) SCC 296)”
[4.3] It also cannot be disputed that while deciding and disposing of the First Appeal under Order 41 read with Section 96 of the CPC, the learned Appellate Court is required to frame the points for determination as envisaged under Order 41 Rule 31 of the CPC. However, as observed by 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, if from the judgment and order passed by the learned Appellate Court it is found that the learned Appellate Court has applied mind and decided all the issues and has given his own findings solely on the ground that the points for determination are not framed, the judgment and order passed by the learned Appellate Court is not vitiated. 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.
[4.4] However, considering the impugned judgment and order passed by the learned Appellate Court and as stated herein above, the learned Appellate Court has not given its own findings on the issues involved in the matter and even which were framed by the learned trial Court. There is no appreciation / re appreciation of evidence on record by the learned Appellate Court and the learned Appellate Court has disposed of the First Appeal under Order 41 read with Section 96 of the CPC in a most casual and perfunctory manner and that too only in one paragraph and therefore, the impugned judgment and order passed by the learned Appellate Court dismissing the Appeal cannot be sustained and the same deserves to be quashed and set aside and the matter is required to be remanded to learned Appellate Court to decide and dispose of the same in accordance with law and on merits and after framing the required points for determination as envisaged under Order 41 Rule 31 of the CPC and on reappreciation of the entire evidence on record and giving its own findings on all the issues/points for determination. As such the learned advocate appearing on behalf of the respondent original defendant is not in a position to dispute the above. He is also not in a position to dispute that the learned Appellate Court has not reappreciated the entire evidence on record and has not given its own findings on all issues which is the requirement while deciding the First Appeal and as an first Appellate Court.
[5.0] In view of the above and for the reasons stated above and without further entering into the merits of the case and/or expressing anything on merits in favour of either parties, on the aforesaid ground alone the impugned judgment and order dated 19.10.2004 passed by the learned Appellate Court learned Joint District Judge, 9th Fast Track Court, Nadiad in Regular Civil Appeal No.27 of 2003 is hereby quashed and set aside and the matter is remanded to the learned Appellate Court to decide and dispose of the same in accordance with law and on merits and after framing points for determination as envisaged under Order 41 Rule 31 of the CPC and to give its own findings on all relevant issues on re appreciation of the entire evidence on record. The aforesaid exercise shall be completed within a period of six months from the date of receipt of the present order. All concerned are directed to cooperate the learned Appellate Court in deciding and disposing of the case on remand within stipulated time stated herein above. With this present Second Appeal is allowed to the aforesaid extent.
Registry is directed to send the writ of this order immediately. Record & Proceedings, if any, received by the Registry to be returned to the learned Appellate Court immediately.
(M.R. Shah, J.) menon