ADMIT.
Shri Kashyap R. Joshi, learned advocate waives service of notice of Admission on behalf of respondent No.1 and Shri Mihir Bhatt, learned Assistant Government Pleader waives service of notice of Admission on behalf of respondent No.2. 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.
[1.0] Following main substantial question of law arises in the present Second Appeal.
"Whether the learned Appellate Court has committed an error in considering the Appeal and dismissing the same without following the procedure as required under Order 41 Rule 31 of the CPC i.e. without framing proper points for determination?"
[2.0] Present Second Appeal under Section 100 of the Code of Civil Procedure, 1908 has been preferred by the appellant herein - original defendant No.1 - Sardar Sarovar Narmada Nigam Ltd. to quash and set aside the impugned judgment and order dated 19.11.2011 passed by the learned Additional District Judge, Narmada, at Rajpipla in Regular Civil Appeal No.20 of 2010 by which the learned Appellate Court has dismissed the said appeal preferred by the appellant herein as well as dismissed the cross appeal / cross objections filed by respondent No.1 herein - original plaintiff.
[3.0] Considering the fact that while disposing off the Appeal as well as the cross objections filed by respondent herein, the learned Appellate Court has not framed proper points for determination, there is a broad consensus between the learned advocates appearing for respective parties that let the impugned judgment and order passed by the learned Appellate Court dismissing the Appeal as well as cross objections are quashed and set aside and the matter is remanded to the learned Appellate Court to decide and dispose of the Appeal as well as the cross objections afresh in accordance with law and on merits and after framing proper points for determination. Learned advocates appearing for respective parties do not invite any further reasoned order while quashing and setting aside the impugned judgment and order passed by the learned Appellate Court and remanding the matter to the learned Appellate Court.
[3.1] In view of the above broad consensus between the learned advocates appearing for respective parties, this Court is not assigning any further reasons while allowing the present Second Appeal and remanding the matter to the learned Appellate Court. However, suffice it to say that the manner in which the learned Appellate Court has disposed of the Appeal by not framing proper points for determination, the impugned judgment and order passed by the learned Appellate Court cannot be sustained. It appears that the learned Appellate Court has framed only one point for determination that whether the judgment and decree passed by the learned trial Court is contrary to law and fact and against the evidence or not? Except the above no point for determination has been framed by the learned Appellate Court. The learned Appellate Court while exercising appellate jurisdiction is required to frame the points for determination with respect to the issue or the matter involved in the case. Under the circumstances, the impugned judgment and order passed by the learned Appellate Court cannot be sustained.
[4.0] 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 and in view of the above, present Second Appeal succeeds and the impugned judgment and order dated 19.11.2011 passed in Regular Civil Appeal No.20 of 2010 by the learned Additional District Judge, Narmada, at Rajpipla is hereby quashed and set aside and the matter is remanded to the learned Appellate Court to decide the said Appeal as well as cross objections in the said Appeal filed by respondent No.1 herein afresh in accordance with law and on merits and after framing proper points for determination and after full discussion. Present Second Appeal is allowed to the aforesaid extent.
CIVIL APPLICATION NO.1711 OF 2012 In view of disposal of main Second Appeal, no further order in Civil Application No.1711 of 2012 and the same also stands disposed of.
(M.R.
Shah, J.) menon Top