Gujarat High Court
Ajitsinh Babubhai Jadav vs Wadhwan Mahajan on 5 March, 2013
Author: A.J.Desai
Bench: A.J.Desai
AJITSINH BABUBHAI JADAV....Appellant(s)V/SWADHWAN MAHAJAN PANJARAPOL....Respondent(s) C/SA/231/2007 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL NO. 231 of 2007 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE A.J.DESAI Sd/- ============================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? No 2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of the judgment ? No 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? No 5 Whether it is to be circulated to the civil judge ? No ============================================= AJITSINH BABUBHAI JADAV....Appellant(s) Versus WADHWAN MAHAJAN PANJARAPOL....Respondent(s) ============================================= Appearance: MR. JAY M THAKKAR, ADVOCATE for the Appellant(s) No. 1 MR UMESH A TRIVEDI, ADVOCATE for the Respondent(s) No. 1.2 - 1.3 UNSERVED-EXPIRED (R) for the Respondent(s) No. 1.1 ============================================= CORAM: HONOURABLE MR.JUSTICE A.J.DESAI Date : 05/03/2013 ORAL JUDGMENT
1. By way of the present Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code ), the original defendant respondent who is the occupier of small business premises belonged to the plaintiffs respondents herein, have challenged the judgement and order dated 31.7.2006 passed by the Additional District Judge and Fast Track Court No. 2, Surendranagar, in Regular Civil Appeal No. 20 of 2003, by which, the appeal preferred by the present respondents for ejectment and possession of the suit premises came to be allowed and the judgement and order dated 12.9.2003 passed by the 2nd Joint Civil Judge (Senior Division), Surendranagar in Special Civil Suit No. 69 of 1991 (re-numbered as Regular Civil Suit No. 233 of 1999), which was filed by the trustees, for ejectment and possession of the suit premises was dismissed.
2. The brief facts emerges from the record of the case are as under:
2.1 That the present respondents, who are the trustees of Vadhvan Mahajan Panjarapole, a registered Trust, filed Special Civil Suit No. 69 of 1991 in the Court of 2nd Joint Civil Judge (Senior Division), Surendranagar against the present appellant and prayed for decree of possession of the suit premises on the ground that the possession of the property was handed over to the present petitioner by the Trust for carrying on business of Tol Map Repairing Works Ijara for a period of one year only. It was the case of the Trust that the present appellant was granted the license to carry out a business in the said premises only for a period of one year. Since, the appellant was not vacating the suit premises, there was alternative for the Trust but to file civil suit before the Court for a decree of ejectment and possession of the suit premises.
Accordingly the above-referred suit was filed. The said suit was resisted by the present appellant by way of written statement at Exh.
29. A plea was taken in the written statement that the relationship between the plaintiffs herein respondents and the defendant - herein appellant were of the nature of landlord and tenant, and therefore, the said suit was not maintainable. It was contended in the written statement that the premises was being used by the present appellant and his deceased father since 1960. It was contended that the pursuant to the oral arrangement between the parties, he was paying rent being Dharmada , and therefore, relation between the parties were only of landlord and tenant.
2.2. After considering the pleadings on record, the learned Joint Civil Judge framed seven issues vide Exh.20. After considering the deposition of witnesses and documentary evidences, which were proved by the parties, the learned 2nd Joint Civil Judge, (Senior Division), Surendranagar, by the judgement and order dated 12.9.2003, dismissed the suit filed by the Trust.
2.3 The trustees of the Trust challenged the judgement and order being Regular Civil Appeal No.20 of 2003 in the Court of Additional District Judge and Fast Track Court No. 2, Surendranagar. The learned Appellate Judge, after framing points for determination, came to conclusion that the Trial Court had committed error in dismissing the suit and allowed the appeal and decree of eviction in terms of prayers made by the original plaintiffs in the plaint, was granted and it was directed that decree be drawn accordingly. Hence, present Second Appeal.
3. Mr. Jay M. Thakkar, learned advocate, appearing for the Appellant has raised the contention with regard to the manner, in which, the lower Appellate Court has disposed of the appeal by writing a judgment contrary to the provisions of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code for short) as well as the Bombay Civil Manual. He submitted that the lower Appellate Court has not framed any point for determination in accordance with Order 41 Rules 11, 14, 15 and 31 of the Code as well as Para No.414 of the Bombay Civil Manual. He has further submitted that it is a settled legal position that the first appeal has to be decided strictly in adherence with the provisions contained in Order 41, Rules 31 of the Code of Civil Procedure. It is further submitted that the lower Appellate Court, being the first Appellate Court must give reasons for its decision on each point independently. Lastly, it is submitted that the Lower Appellate Court has failed to comply with the provisions of Rules 11, 14, 15 and 31 of Order 41 of the Code as well as Para No. 414 of the Bombay Civil Manual.
3.1 Mr. Jay M. Thakkar, learned advocate for the Appellant, in support of his submission, has relied upon the decisions of the Supreme Court in the case of H.Siddiqui (dead) by LRs. Vs. A Ramalingam, as reported at 2011 (2) GLR 1429 as well as in the case of M/s.United Engineers & Contractors V/s. Secretary to Government, A.P. And others reported in 2013(1) Scale 530 and submitted that the Honble Apex Court has, after relying upon several decisions, held that if the first Appellate Court s judgment is based on the independent assessment of the relevant evidence on all important aspects of the matter and the findings of the appellate Court are well founded and quite convincing, such an exercise should be done after formulating the points for determination in terms of the said provisions and the court must proceed in adherence to the requirements of the said statutory provisions.
3.2 Mr.Jay M. Thakkar, learned advocate for the Appellant, has further submitted that para-414 of the Bombay Civil Manual is of obligatory nature and the appellate court is bound to frame suitable points for determination in appeal in accordance with the same principles on which issues are framed by the Trial Court. He has further submitted that this exercise has not been undertaken by the appellate Court.
3.3 Mr.Jay M. Thakkar, learned advocate for the Appellant, therefore, submitted that the impugned judgment and order passed by the lower Appellate Court be quashed and set aside and the matter be remanded to the lower Appellate Court for fresh consideration in accordance with law after framing points for determination in accordance with Order 41 Rules 11, 14, 15 and 31 of the Code of Civil Procedure as well as Para No.414 of the Bombay Civil Manual.
4. On the other hand, Mr.Umesh A. Trivedi, learned advocate appearing on behalf of the respondents has opposed the submissions made by learned advocate for the petitioner and supported the impugned judgment and order passed by the lower Appellate Court. In support of his contention, Mr.Umesh A. Trivedi, learned advocate has relied upon the judgments of Kikubhai Pashottambhai Patel Vs.Babubhai Vallabhbhai Patel, reported in 2005(1) G.L.H.602, Jayshreeben Vasantkumar Vithlani Vs. Manjibhai and Company and another, reported in 2007(1) G.L.H.248 and Bhil Kanji Bhagwan (since dead) through his heirs Laxmiben Kanji and others Vs. Bhil Karsan Bijal and others, reported in 2003(3) G.L.H.2080 and submitted that if the appellate Court has discussed all the points and arguments in the body of the judgments, no interference is called for in the matter either in the second Appeal or in the Revisional jurisdiction provided under the Bombay Rent Act. He further submitted that the first Appellate Court has considered the case on merits and the judgment and order passed by the lower Appellate Court is just, legal and proper and the same would not stand vitiated merely because points of determination have not been formulated by the lower Appellate Court and, therefore, there is no need to remand the case for fresh consideration to the first Appellate Court.
5. I have heard Mr.Jay M. Thakkar, learned advocate appearing for the Appellant and Mr.Umesh A. Trivedi, learned advocate appearing for the respondents. It is apparent from the main grounds, on which the impugned judgment and order passed by the lower Appellate Court has been assailed, that the same does not meet with the requirements of the provisions of Rules 11, 14, 15 and 31 of Order 41 of the Code as well as Para No. 414 of the Bombay Civil Manual. The lower Appellate Court has framed three points for determination, which are reproduced as under:
1. Whether the appellant proves that learned trial Judge has committed error in dismissing RCS No. 233/93 of the appellant?
Whether the appellant proves that interference is required in the judgement and decree by the trial Court ?
3. What order?
6. Now considering the points, which are formulated by the lower Appellate Court, I am of the opinion that, the lower Appellate Court has committed error in not properly formulating the points for determination. The lower Appellate Court ought to have framed points for determination in accordance with Order 41 Rules 11, 14, 15 and 31 of the Code as well as Para No. 414 of the Bombay Civil Manual and ought to have given reasons for its decision on each point independently. The Apex Court in the case of H.Siddiqui (dead) by LRs. (supra) in the context of Order-41 Rule-31 of the Code of Civil Procedure, has observed in paras 21 and 22 as under:
21. The said provisions provided 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 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 asses 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 such 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: Sukhpal Singh v. Kalyan Singh, AIR 1963 SC 146; Girijanandini Devi v.
Bijendra Narain Choudhary, AIR 1967 SC 1124; G. Amalorpavam v. R.C. Diocese of Madurai, 2006 (3) SCC 224; Shiv Kumar Sharma v. Santosh Kumari, 2007 (8) SCC 600; and Gannmani Anasuya v. Parvatini Amarendra Chowdhari, AIR 2007 (SC 2380: 2007 (10) SCC 296.
22. In B.V. Nagesh v. H.V. Sreenivasa Murthy reported in JT 2010(10) SC 551: 2010 (13) SCC 530, while dealing with the issue, this Court held as under:
4. The appellate Court has jurisdiction to reverse or 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 re-hearing 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.
7. In a recent case of Budhabhai Bhikhabhai Parmarand and another Vs. Shantaben Wd/o Bhalabhai Becharbhai, 2013(1)G.L.H.127, this Court, while dealing with the provision of Section 100 of the Code of Civil Procedure and the provisions of Order 41, Rule 31 of the Code by relying upon the case of H. Siddiqui (dead) by LRs. (supra), has held that the first Appellate Court has to decide the Appeal in accordance with law, on merits and after framing points for determination as envisaged under Order- 41, Rule-31 of the Code of Civil Procedure. It has also been observed that on each point, the Appellate Court has to give its own finding that too after re-appreciation of entire evidence on record.
8. In addition to the above principles of provisions of Order 41 Rule 31 of the Code of Civil Procedure, Bombay Civil Manual, which has been made applicable to the State of Gujarat, provides in detail the Civil Courts functioning. Different Chapters provided therein make the provisions of the Code of Civil Procedure amply clear that how the original Court, first appellate Court and second appellate Court has to function. To ensure the uniformity with regard to practice and procedure of civil proceedings, the Manual is an exhaustive guiding factors for a Court, who is deciding disputes between the parties of a civil nature.
8.1 As far as Appeals arising from the Trial Courts judgment, decree and order are concerned, Chapter-XX of the Code deals with the same. Para/Rule-414 of the Bombay Civil Manual provides about the manner, in which the appellate Court should frame the suitable points for determination while deciding the Appeal. Rule-414 of the Bombay Civil Manual reads as under:
414. The appellate Court should frame suitable points for determination in appeals in accordance with the same principles on which issues are framed in the trial Court.
In my opinion, combined reading of the Order-41 Rule-31 of the Code as well as Rule-414 of the Bombay Civil Manual make it clear that the first appellate Court is bound to frame points for consideration as if it is framing the issues provided under the provisions of the Code of Civil Procedure. Paras/Rules-53 and 54 of the Bombay Civil Manual provides the method of settlement / framing issues. Rules-53 and 54 read as under:
53. Issues should be framed by the Presiding Judge on the date fixed for the purpose. They indicate the points in controversy, on which the parties are to go trial and give them notice of the matters which they are required to establish by adducing evidence or otherwise. No trial is likely to be satisfactory unless the issues are complete and precise. It should be observed that a party has to produce evidence in support of the issues, which he is bound to prove (Order XVIII, rules 2 and 3) and that the judgment of the Court shall record its findings on the issues (Order XX, rule- 5). These provisions should make it plain that an essential preliminary to a satisfactory trial is the settlement of full and precise issues. A judicious use of the provisions of rule 1 of Order X and sub-rule (5) of rule 1 of Order XIV may be found of help for collecting material necessary for framing issues in seriously contested cases. The duty of framing issues under the law must be performed by the Court and the presiding Judge should not leave it to the parties or lawyers to frame the issues but should apply his own mind to the subject. There is however, no reason why the Court should not take suggestions from the parties as to the issues to be framed.
54. In framing issues the Court should proceed as follows:-
(a) Every issue of fact shall be so framed as to indicate on whom the burden of proof lies.
(b) Every issue of law shall be so framed as to indicate the precise question of law to be decided.
Note : When the claim or any portion of it is alleged to be barred by any law the issue shall also state the Act and section or rule or other provision under which it is so barred.
When the question is whether a certain section of law applies, the issue should be framed in the words of that section e.g., if the question is whether a transfer should be set aside under section 54 of the Provincial Insolvency Act, the issue should not be Is the transfer bogus and fraudulent ?
Issues should be self-contained. The framing of issues such as Is the sale liable to be set aside for the reasons stated by the defendant in his written statement, dated... should be avoided.
(e) Every issue should form a single question and as far as possible should not be put in an alternative form.
(f) No proposition of fact which is not itself a material proposition, but is relevant only as tending to prove a material proposition, shall be made the subject of an issue.
(g) No question regarding admissibility of evidence shall be made the subject of an issue.
8.3 Now in the present case, it is apparent from the judgment and order of the lower Appellate Court that the provisions of Order-41 Rule-31 of the Code of Civil Procedure and Rule-414 of the Bombay Civil Manual are not followed.
9. Even otherwise, the learned Appellate Court, in my opinion, has not re-appreciated the entire evidence and has not arrived at its own conclusion on each issues, which were in controversy between the parties.
10. A similar view was taken by this Court in the case of Mahmad Ahmadbhai v. Fatmaben Abdulla & Ors. reported in 2007(4) GLR 2789; in the case of Prajapati Abraham Nagarbhai & Anr. v. Prajapati Harjibhai & Ors., reported in 2010(2) GLH 551 as well as in the case of Dumala Vahpara Gram Panchayat v. Chunilal Tribhovandas Patel & Ors., reported in 1999(2) GLH 959.
11. In view of above settled principle of law, while delivering the judgment, the first Appellate Court is required to substantially comply with the provisions of Rule 31 of Order 41 of the Code of Civil Procedure. In the present case, on mere perusal of the impugned judgment and order of the lower Appellate Court, it is abundantly clear that the lower Appellate Court has failed to discharge the obligation placed on it as a first Appellate Court. In my opinion, the judgment and order of the lower Appellate Court deserves to be quashed and set aside and the case is required to be remanded to the lower Appellate Court for considering the same afresh on merits and in accordance with law after framing points for determination in accordance with Order 41 Rules 11, 14, 15 and 31 of the Code of Civil Procedure as well as Paragraph No. 414 of the Bombay Civil Manual.
12. In the result, the present Second Appeal succeeds. The impugned judgment and order dated 31/07/2006 passed by learned Additional Additional District Judge & Fast Track Court No.2, Surendranagar in Regular Civil Appeal No.20 of 2003 is hereby quashed and set aside and the matter is remanded to the lower Appellate Court to decide the same afresh on merits and in accordance with law after formulating proper points for determination. Accordingly, Regular Civil Appeal No. 20 of 2003 shall stand restored to file. The lower Appellate Court shall decide the Appeal, as expeditiously as possible, preferably, within a period of six months from the date of receipt of order, after affording an opportunity of hearing to the learned advocates for the respective parties. It is made clear that the present Second Appeal is not decided on merits of the case, but has been remanded only on the ground referred to herein-above. There shall be no order as to costs. Interim relief granted earlier shall stand vacated forthwith. However, the parties are hereby directed to maintain status quo with regard to the suit premises till final hearing of the appeal.
13. Registry is directed to remit the Record and Proceedings to the lower Appellate Court forthwith.
(A.J.DESAI, J.) *Kazi Page 16 of 16