Gauhati High Court
Bogamal Gohain And Ors. vs Lakhinath Kalita And Ors. on 13 May, 1991
Equivalent citations: AIR 1991 GAUHATI 100, (1991) 2 CIVLJ 575, (1991) 2 CURCC 383, (1991) 2 GAU LR 147
JUDGMENT B.P. Saraf, J.
1. The appellants 1 and 2 herein were defendants in a suit filed by the respondent No. 1 as plaintiff in the Court of the Munsiff, North Lakhimpur. That suit was numbered as Title Suit No. 13 of 1979. The relief claimed in that suit was permanent injunction against the defendants. The suit was decreed which was affirmed in appeal. The decree was also executed.
2. Despite the decree of permanent injunction, the appellants (the defendants in that suit) dispossessed the plaintiff from the suit land. The plaintiff filed an application under Order 39 Rule 2-A, C.P.C. as well as a suit for declaration of right, title and interest and recovery of possession and compensation against the defendants. The suit was numbered as Title Suit No. 55 of 1979 in the Court of Munsiff, North Lakhimpur. It was contested by the defendants on a number of grounds including res judicata. On the basis of the pleadings of the parties, as many as 7 issues were framed. A number of witnesses were examined on behalf of the parties. The trial Court decided all the seven issues on the basis of evidence of the witnesses and material on record and in the light of the findings thereon, decreed the suit in favour of the plaintiff. It was held that the plaintiff had right, title and interest over the suit land. It was also held that the defendants entered into the suit land after the decree was executed. The issue regarding res judicata was also decided against the defendants and in favour of the plaintiff. The suit was accordingly decreed. The decree was affirmed on appeal. The defendants have come up in second appeal before this Court.
3. Mr. B. P. Kataky, learned counsel for the appellants submits that the judgment of the first appellate Court is not tenable in law inasmuch as the learned Court did not decide the various issues raised by the appellants for determination. The appeal was disposed of only on one point that is res judicata as according to the court that was the substantial point for determination in that appeal. None of the other grounds were discussed nor any decision was given thereon. This according to the learned counsel, has vitiated the appellate order. Reliance is placed in this connection on the provisions of Order 41 Rule 31 of the Code of Civil Procedure.
4. I have perused the memorandum of appeal filed before the first Appellate Court. It appears that a number of grounds were taken by the appellant. All the findings of the trial Court on different issues including res judicata were challenged. The contention of the appellant is that all these grounds were also argued at the time of hearing. I have also perused the impugned appellate order. It does not contain any statement to the effect that any of the grounds taken in the appeal were not pressed at the time of hearing or were abandoned. On the other hand, a reading of the judgment as a whole goes to show that all the points taken in the memorandum of appeal were urged, but the Court discussed and decided only one point relating to the bar of res judicata which according to him was "the substantial point for determination". No other ground or point was dealt with or discussed. The appeal was decided only on the basis of finding on the point relating to res judicata and in the light of finding in that regard, the appeal was dismissed. The question that falls for determination, therefore, is whether the decision so arrived at by the appellate Court is vitiated and whether in that view of the matter the impugned appellate order is not tenable in law.
5. To properly appreciate this point it may be expedient to refer to Order 41 Rule 31 of the Code of Civil Procedure which deals with the contents of an appellate judgment it provides:
"The judgment of the Appellate Court shall be in writing and 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;......".
6. This provision came up for consideration before this Court in a number of cases. As back as in 1950, in Ambor Ali v. Nichar Ali, AIR 1950 Assam 79 (80) this Court held :
"The judgment of an appellate Court must be self-contained, so self-contained that findings of fact can be sustained upon a bare perusal of it."
It was further held :
".......The material evidence on a particular issue for and against the parties to the suit must be set out in the judgment, and reasons stated for its acceptance or rejection."
On the facts of the case, it was held :
"......It was the manifest duty of the learned Subordinate Judge to state his reason why he thought the plaintiff had failed to prove that the land in suit and the lands described in Ex. A, were identical. Nor was it sufficient for him to say that the oral evidence was not satisfactory on this point. He should have reproduced the material evidence and stated reasons for his conclusion that the oral evidence was not satisfactory."
In Arabinda Barma v. Chandra Kanta, AIR 1954 Assam 94, it was held that it is the duty of the appellate Court to examine the evidence independently and come to its own findings in agreement or otherwise with the findings of the trial Court.
In Jani Ram Kalita v. Bishnu Ram Kalita, AIR 1963 Assam 184 it was held (at page 185):
"The Court of appeal in India is a Court of rehearing and it has to examine the evidence independently for itself and not only to use if there is any defect in the judgment of the trial Court....."
In Fakar Ali v. Supdt. of Police, AIR 1971 Assam 165, this Court again held that the first Appellate Court as the final Court of facts is bound to consider all the evidence adduced by the parties in the case.
Order 41 Rule 31 also came to be considered by the Supreme Court in Sukhpal Singh v. Kalyan Singh, AIR 1963 SC 146. It was observed (at page 149):
"The object seems to be that the parties should know for what reasons the decision has gone against them and thereby be in a position to decide whether they should go up in appeal or revision against the judgment. If they do not know the decision and the reasons therefor, they cannot make up their mind and, even if they have no intention to go up in appeal, they may not even be satisfied about the Court considering the matter for determination properly.
Another object can be that the second appellate Court or the revision Court be in a position to know why the Court below came to a certain conclusion. Such knowledge is undoubtedly of great assistance to the court......"
7. From the aforesaid decisions, it is abundantly clear that a judgment of the appellate Court should be self contained. It should be a speaking judgment. It should contain decision on each and every point arising for consideration before the Court with reasons therefor. It may be observed that the requirement of giving reasons for the decision on each point is a salutary requirement. It is like the principle of audi alteram partem. It has to be observed in proper spirit. A mere pretence of compliance will not suffice. An appellate judgment, which does not comply with these requirements, would be vitiated.
8. This aspect was also considered by this Court in Fakar Ali (AIR 1971 Assam 165) (supra). It was held that non-consideration of the evidence of the witnesses examined by the plaintiff in support of his case amounts to an illegality and vitiates the judgment.
9. The Bombay High Court in Vishwas Balu v. Ghasiram Ramratan Jajum, AIR 1975 Bombay 278 held the requirements of this rule to be mandatory. It was observed (at page 280):
"The provisions of Order 41, Rule 31 of the Code of Civil Procedure are mandatory. The judgment of the first appellate Court has to set out points for determination, record the decision thereon and give its own reasons for the said decision. The expression used throughout is 'shall state'. Looking to the plain language of this rule, it cannot be said that failure to comply with these provisions is a mere irregularity. The legislature has laid down these rules so that either the second appellate Court or the Court exercising such extraordinary jurisdiction should be in a position to find out the track traversed by the appellate Court. It cannot run away from its onerous duties of recording the finding of fact and/or discussing the evidence......."
The Court, however, gave the following note of caution:
"There may be cases where in a given set of circumstances the Court may ignore a point here and there but if there is an application of mind to the issues involved, then certainly such a judgment could be sustained."
This Court in Jani Ram Kalita (AIR 1963 Assam 184) (supra) also gave a warning in the following words against too strict a construction of this rule (at page 185) :
".....But it does not mean that the lower appellate Court in every case must write out an elaborate judgment. So long as it is apparent from the perusal of the judgment of the trial court that it has considered the points arising in the case and it has examined the evidence and it has come to its own independent conclusion on the points at issue after the perusal of the evidence on the record, merely because the judgment of the appellate Court is not elaborate and the judge has not given in detail the summary of the evidence produced by the parties, it cannot be said that the judgment of the appellate Court is not judgment in the eye of law and the appellate Court has committed an error of procedure."
10. In Sukhpal Singh (AIR 1963 SC 146) (supra) the Supreme Court also made it clear that the provisions of Rule 31 should be reasonably construed and should be held to require the various particulars to be mentioned in the judgment only when the appellant has actually raised certain points for determination before the appellate Court and not when no such points have been raised.
11. From the foregoing discussions it is clear that the requirements of Order 41 Rule 31 are imperative. They should be complied in proper spirit. The judgment of the appellate court should be in terms of the said rule. The requirements of this rule, however, should not be given too technical an interpretation. Literal compliance thereof should not be insisted upon. If in a particular case it is found that the court has properly considered all the questions raised and has given reasons for its decision, the judgment would not be vitiated just because the points for determination had not been formulated. In other words, substantial compliance with the requirements of this rule will be sufficient.
12. The impugned judgment of the Assistant District Judge, evidently, is not in accordance with Order 41 Rule 31. Most of the points for determination have not been decided. There is even no discussion on those points. The impugned judgment, under the circumstances, cannot be allowed to stand. The same is, therefore, set aside and the case is remanded back to the learned Assistant District Judge to decide afresh in the light of the foregoing discussion. As the matter has been hanging for about two decades. I direct that this appeal may be disposed of within a period of four months from today. The parties shall appear before the learned Assistant District Judge on 24th June, 1991 to obtain necessary orders. The records of the case may be transmitted forthwith.
In the result, the appeal is allowed.