Andhra HC (Pre-Telangana)
Katta Nageswara Rao And Anr. vs Reddi Saraswathi And Ors. on 29 October, 1991
Equivalent citations: 1992(1)ALT256
JUDGMENT N.D. Patnaik, J.
1. This appeal is filed by the plaintiffs in O.S. No.1792 of 1981 in the Court of the I Additional District Munsif Guntur. They have filed the suit for declaration and for consequential injunction and also for mandatory injunction. The trial court dismissed the suit. Aggrieved by that Judgment, they filed an appeal A.S. No.54 of 1986 before the District Court, Guntur. The appeal was dismissed by the III Addl. District Judge, Guntur by his Judgment dated 22-7-1991.
2. The substantial question of law raised by the appellants in the Second Appeal is that the Judgment of the Appellate Court i.e., the III Additional District Judge, Guntur is not in accordance with the provisions of Order'41, Rule 31 CPC, and therefore it is not a Judgment in the eye of law.
Order 41, Rule 31 CPC reads as follows:-
"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 decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled, and shall bear the date on which it is pronounced and shall be signed by the Judge or the Judges concurring therein:
Provided that where the Presiding Judge is specially empowered by the High Court to pronounce his Judgment by direction to a shorthand writer in open court the transcript of the Judgment so pronounced shall, after such revision as may be deemed necessary, be signed by the Judge."
3. The learned counsel for the appellants has pointed out that in para 8 of the Judgment, the appellate court has stated that the point for consideration is whether the Appellants are entitled to set aside the decree and Judgment passed by the lower court in O.S.No.1782 of 1981 dt.23-4-1986? He contended that when several contentions were raised by the parties, the Appellate Court has to frame various points for determination and record the decision thereon but it cannot merely say as to whether the Judgment and decree of the trial court are liable to be set aside.
4. In the case reported in Smt. Anita M. Harretto v. Abdul Ahid Sanaullah, a learned Judge of the Bombay High Court has pointed out as to how in several cases the Appellate Courts have formulated the points for determination in very vague manner ignoring Order 41, Rule 31(a) CPC, he has pointed out that the points which arise for determination by a Court of First Appeal must cover all important questions involved in the case and they should not be general and vague. It is a matter of almost" text book knowledge that the exact questions which arise in the appeal and require determination must be stated in the Judgment It is not sufficient to state the point to be determined in appeal whether or not the decision is consistent with the merits of the case. The point which was stated hardly a point for determination as contemplated under Order 41, Rule 31 of the Code.
5. The learned counsel for the respondents has referred to a decision of the Karnataka High Court reported in Assistant Commissioner Tumkur v. K.N, Nagaraja, AIR 1983 Karnataka in which it was pointed out that the Judgment of the first Appellate Judge cannot be vitiated for the reason that he has not formulated the points for a decision at the very commencement of his Judgment. A substantial compliance with the requirements of Order 41, Rule 31 will be sufficient and any little deviation therefrom should not be a ground to set aside the entire Judgment on that account. It is no doubt desirable that the first Appellate Court complies with all the requirements of that Rule, but if it is possible to make out from the very Judgment that they have substantially complied with the said requirements and that the Judgment thereby not suffered that would be sufficient.
6. It is therefore, necessary that the Appellate Courts should frame the points for determination and record the decision thereon as contemplated under Order 41, Rule 31 CPC. But even if the points for determination are not formally stated in the Judgment, if the Appellate Judge has considered all the disputed questions and recorded his findings thereon, it will be a substantial compliance and the Judgment need not be invalidated merely on the ground that the points for determination are not formally posed at the commencement of the discussion as laid down by the Karnataka High Court.
7. Now let us see whether the Judgment of the appellate court in this case has considered the disputed questions of fact. The first Appellate Court is the final Court as regards the decision on the questions of fact are concerned. It is therefore necessary that the First Appellate Court has to consider both oral and documentary evidence adduced by the parties with reference to their contentions and arrive at the conclusions giving the reasons therefore.
8. In this case after referring to the various contentions of the parties, the learned appellate Judge came to the conclusion on the merits of the plaintiffs case in paragraph 17 of his Judgment. He has stated therein that P.W.1 admitted that he had no documents to show that he had title in TS No.136, that he had no proof to show that TS No.136 is in his possession and site between first defendant's site and the tank belonging to the Government and to the West of the House of first defendant, there is a tank poramboke in a width of 200 yards. So, the findings given by the lower court to show that the plaintiffs are not entitled to declaration and for permanent injunction and for mandatory injunction. It is made in accordance with the facts and circumstances and there is no necessity to interfere with the findings given by the lower Court.
9. The learned counsel for the appellants has pointed out that two witnesses were examined on the side of the plaintiffs including a Commissioner, three witnesses were examined on the side of the defendants and several documents-were filed in the trial Court and the Appellate Court ought to have discussed the entire evidence in coming to a conclusion whether the plaintiffs have established their case or not. He has pointed out that taking out a sentence from the evidence of P.W.1 and stating that the decision of the trial court is made in accordance with the facts and circumstances of the case and there is no necessity to interfere with the findings is a very unsatisfactory method of disposal of the appeal by the Appellate Court. Therefore, it cannot be considered to be judgment at all.
10. The learned counsel for the respondents has referred a decision of the Supreme Court in Girijanandini Devi v. Bijendra Narain Chowdhary, in which it is stated at para 12 as follows:-
"It is true that the High Court did not enter upon a reappraisal of the evidence, but it generally approved of the reasons adduced by the trial court in support of its conclusion we are unable to hold that the learned Judges of the High Court did not, as is contended before us, consider the evidence. It is not the duty of the Appellate Court when it agrees with the view of the trial court on the evidence either to restate the effect of the evidence or to reiterate the reasons given by the trial court. Expression of general agreement with reasons given by the court decision of which is under appeal would ordinarily suffice."
Relying on this decision the learned counsel for the respondents contended that where the Appellate Court agrees with the findings of the trial court, it is not necessary to give the reasons. But the Appellate Court has at least to refer to the relevant evidence and the reasons given by the trial court and say whether it agrees with the reasons or not.
11. In a recent decision reported in Jumma Mosque Committee Chittoor v. A.V. Abdul Sammad, 1990 (1) APLJ. 83 a issued Single Judge of this court has pointed out that:
"However, the lower Appellate Court while reversing the judgment of the trial court has not referred to the material evidence and relevant pleadings in assigning its reasons under Order-41, Rule 31 CPC. It has also not discussed the reasoning given by the trial court while reversing its Judgment. This practice, it is settled law, as has been laid down by the Madras High Court in Mangamma v. Paidayya, AIR 1941 Mad. 393 in rendering reversing judgments seriously invalidates the appellate authority and accordingly such judgments are to be deemed to have been vitiated by an error in procedure."
12. In the decision reported in Pasupuleti Krishna Murthi v. Annadasu Bapanayya, 1955 (1) An. W. R. 308 it is pointed out that:
"Even in concurring judgments it is not only advisable that they should summarise the oral evidence and give reasons for accepting or rejecting the same but it is also incumbent or necessary for them to do so in order to enable the High Court to decide whether the finding of fact which is regarded as final and conclusive is arrived at by the Appellate Court after due appreciation of oral evidence."
Therefore, whether it is a concurring or reversing Judgment, it is necessary for the first Appellate Court to consider the evidence and give its decision. That will be in accordance with the Order 41, Rule 31 CPC. Since the learned Judge, who delivered the judgment in the lower Appellate Court in AS No.54 of 1986, did not discuss the evidence but only observed in para 17 that the decision of the trial court is in accordance with the facts and circumstances and there is no necessity to interfere with the findings given by the lower Court, it cannot be considered to be a decision given under Order 41, Rule 31 CPC. Therefore, it is necessary to remand the matter to the lower Appellate Court for fresh disposal of the appeal in accordance with law.
13. The learned counsel for the respondents has represented that as it is an old matter, hardship will be caused to the respondents if the matter is remanded. But since the lower Appellate Court did not consider the evidence and this Court in Second Appeal cannot re-assess the evidence on questions of fact, it has become necessary that the matter should be remanded to the lower appellate Court for fresh disposal in accordance with law.
14. Therefore, the appeal is allowed and the matter is remanded to the lower Appellate Court for fresh disposal according to law. No Costs.
15. The lower Appellate Court is directed to dispose of the, appeal within a period of three months from the date of receipt of the records.