Gujarat High Court
Shah Keshavji Pashuji Vira(Decd.) & vs Shah Mavji Pasu-Decd. & 6 on 11 March, 2014
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SA/45/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND APPEAL NO. 45 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.V.ANJARIA
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
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 ?
5 Whether it is to be circulated to the civil judge ?
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SHAH KESHAVJI PASHUJI VIRA(DECD.) & 1....Appellant(s)
Versus
SHAH MAVJI PASU-DECD. & 6....Respondent(s)
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Appearance:
MR CB DASTOOR, ADVOCATE for the Appellant(s) No. 1 - 1.2 , 2
MR JV JAPEE, ADVOCATE for the Respondent(s) No. 1.2 - 1.5 , 1.7.3
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 11/03/2014
ORAL JUDGMENT
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C/SA/45/2014 JUDGMENT This appeal is directed against judgment and decree dated 12.09.2013 passed by learned 6th Additional District Judge, Bhuj, Kutch, in Civil Regular Appeal No. 40 of 1995. Thereby, the appeal of the original defendants -appellants herein came to be dismissed, and in turn judgment and decree dated 16th March, 1995 passed by the Trial Court came to be confirmed.
1.1 The court of civil judge (Junior Division), Mundra, Kutch, decreed Regular Civil Suit No. 23 of 1990 instituted by the present respondents. It declared that the sale deed at Exh. 61 exhibited by defendant No.1 in favour of defendant No. 4 was illegal and was not binding to the plaintiffs. It was further declared that in the property being agricultural field bearing survey No. 153 situated at village Deshalpr-Kanthi, the plaintiffs had 1/4th share.
2. Heard learned advocate Mr. Mehul S. Shah with learned advocate Mr. C. B. Dastoor for the appellants and learned advocate Mr. J. V. Jappi for the respondents. Upon consideration of the matter and in particular on perusal of impugned judgment and decree by the first appellate court, and after hearing the learned advocates appearing for the parties, following substantial question of law was found to be arising in this appeal.
"Whether the judgment and decree of the first appellant court was rendered bad in law on account of non-compliance of the requirements of Order 41 Rule 31 of Code of Civil Procedure, 1908, as the first appellate court did not formulate the points of determination ?"
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C/SA/45/2014 JUDGMENT 2.1 Learned advocate for the respondents was given opportunity of being heard on the aforesaid question. In view of the above question of law surfacing, without going into the other merits in detail, the appeal is herewith admitted on the aforesaid question.
2.2 Upon request and as per consent of both learned advocates for the parties, the appeal is taken up for final disposal today.
3. The relevant facts may be usefully noted. Plaintiffs and defendants were the heirs of deceased Pasu Vershi. As per the pedigree given in the plaint, Gangji Vershi and Pasu Vershi were real brothers and were the sons of Vershi Nathuvira. The dispute related to agricultural field survey No. 153 admeasuring 8 acres and 14 gunthas situated at village Deshalpar-Kutch. The plaintiffs respondents by instituting the civil suit claimed that in the suit property they had 1/4 th share. They contended that the said share was undivided. The administration of the property was done by Keshavjibhai because the eldest brother Mavjibhai was suffering from Tuberculosis. It was contended that the sale deed dated 19.02.1988 executed by defendant No.1 in favour of defendant No. 4 in respect of the suit property was not binding to them. The suit was contested by defendant No. 1 and 4 by filing their written statement at Exh. 25. It was contended that entry was mutated in the revenue record in the name of defendant No. 1 as the suit property was transferred in his name, which was on the basis of a Will dated 10.01.1962 exhibited by deceased by Pasu Vershi. It was contended that by virtue of said Will, properties were divided and suit land was given to defendant No.1. It was contended that defendant No. 1 had maintained and took care of Page 3 of 9 C/SA/45/2014 JUDGMENT Pasu Vershi. It was contended that plaintiff had applied before the Mamaltdar for cancellation of entry, with regard to which order dated 18.09.90 was passed.
3.1 The trial court framed issues at Exh. 26. It held the same to be illegal. Further held that plaintiff was entitled to 1/4 th share and held against defendant No.1 that he became owner of the property by virtue of Will. The trial court accordingly decreed the suit as above. The defendants preferred appeal. The appeal came to be dismissed by the first appellate court, which confirmed the findings and conclusions of the trial court on various counts.
4. Learned advocate for the respondents contended that both the courts had recorded concurrent findings. He further submitted that the findings were justified even on merits and there is no scope of interference by this court in the second appellate jurisdiction which is limited in its scope. On the other hand, learned advocate for the appellant submitted that parameters required to be followed for exercise of jurisdiction were not followed by the first appellate court.
5. As noted above, the merits of the case were not required to be gone into. At the outset, it is noticed on consideration of the judgment of the first appellate court that while exercising its appellate jurisdiction under section 96 of the Civil Procedure Code, 1908, it had not observed the mandatory requirements of Order 41 Rule 31 of the Code. 5.1 When the learned Additional District Judge was exercising appellate jurisdiction under Section 96 read with Order 41 Rule 31, CPC, Page 4 of 9 C/SA/45/2014 JUDGMENT it was incumbent on him to observe requirement of law for exercising the jurisdiction. Order 41, Rule 31, CPC provides the manner in which the appellate court would undertake adjudication process to arrive at a decision in the appeal before it. Order 41, Rule 31 reads as under:
"XLI Appeals from original decrees
31. Contents, date and signature of judgment.-
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, and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein."
5.2 It is emphasised by the Apex Court as well as by this Court that the Appellate Court has to formulate specific points for determination. In H. Siddiquy (Dead) by LRS. (supra), the Apex Court emphasised necessity for strict adherence to the provisions of Order 41 Rule 31, CPC by observing as under:
"The said provisions provide guidelines for the appellate court as to how the court has to proceed and decide the case. The provisions Page 5 of 9 C/SA/45/2014 JUDGMENT 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 with the said provisions if the 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. 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." (Para 21) 5.3 In Union of India and another Vs Ranchhoddas and others [(2007) 14 SCC 326], the Apex Court held that order of the High Court deciding the appeals under Section 54 of the Land Acquisition Act, 1954, showed a cryptic way without going into the merits of the rival contentions was not sustainable in view of non-compliance with Order 41 Rule 31, CPC. In Parimal Vs Veena alias Bharti [(2011) 5 SCC 545], it was held that the first Appellate Court should not disturb and interfere with the valuable rights of the parties which stand crystalised by Trial Court judgment, without opening the whole case for rehearing, both at question of facts and law. It observed that the First Appeal is a valuable right and the parties have right to be heard, both on the question of facts Page 6 of 9 C/SA/45/2014 JUDGMENT and on law. The Appellate Court should not modify the decree of the Trial Court by a cryptic order without taking note of all the relevant aspects, otherwise the order would be liable to be set aside. 5.4 In Babubhai Velani Vs Rameshbhai Prajapati [2012(3) GLH 624], this High Court took similar view. In that case, the lower appellate court has framed points generally as to whether the appellants prove that the judgment of trial court was against the established principles of law and whether the learned trial judge had committed error apparent on fact of record. It was observed that the aforesaid formulation could not be said to be raising proper points for determination while deciding the appeal under Section 96, CPC. The court referred to the decision of Supreme Court in B.V. Nagesh and another Vs H.V. Sreenivassamurthy [2010 (13) SCC 530] to observe that without framing the point of determination, without proper reason and discussion, the first appellate court cannot dispose of the first appeal under section 96, CPC. Again in Budhabhai Bhikabhai Parmar Vs Shantaben, wd/o Bhelabhai [2013 (1) GLH 217], the Court disapproved perfunctory manner in deciding the appeal in the appellate jurisdiction and stated that the Appellate Court has to give its own findings on all the points of determination. Similarly, in oral judgment dated 07th February, 2013 in Kanaiyalal Shambhubhai Vekariya Vs Shushilaben M. Joshi in Civil Revision Application No.319 of 2011 and in oral judgment dated 12th February, 2013 in Kasambhai Hasambhai Pinjara Vs Chunilal Bhimjibhai Dhanak in Civil Revision Application No.217 of 2009, this court reiterated the principles while taking note of Rules 53 and 54 in the Bombay Civil Manual.
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C/SA/45/2014 JUDGMENT
6. Coming back to the facts of the case, the first appellate court was required to formulate specific points in relation to the disputed aspects of the matter. Only after formulating the specific points for determination, it could have focused the discussion on merits. Only then, it could have dealt with the evidence in proper context. Whatever ultimate conclusion the appellate court may reach as it may deem appropriate on merits and on evidence, however, the appellate decisional making process has to be guided by the mandatory requirement of law.
6.1 The whole purpose as to why the lower appellate court is expected to formulate specific point of determination in exercise of appellate jurisdiction is that it must reflect that it applied its mind to the subject matter. Secondly, it should also reveal that the court was aware of all the relevant points on which it was adjudicating as appellate court. The third purpose which is subserved by specific formulation of points and reasoned discussion on each of such points is that the litigants who are laymen, when read judgment, know as to what is actually decided by the court. Formulation of points adverting to the discussion thereon on the basis of the evidence on record and arriving at conclusion on that basis are all the necessary traits of judicial approach. When a judgment of any court satisfies such requirements, then only it acquires judicial character.
7. In the circumstances, impugned judgment and order dated 12.09.2013 passed in Regular Civil Appeal No. 40 of 1995 is hereby quashed and set aside. The matter is remanded to the first appellate court with a direction to it to decide the same afresh in light of what is held above in due compliance of the provisions of Order 41 Rule 31 of Page 8 of 9 C/SA/45/2014 JUDGMENT CPC after formulating the necessary points of determination. Considering that the matter is old, the first appellate court shall complete the aforesaid exercise and render its fresh decision in terms above within four months from the date of receipt of certified copy of this order.
8. It is clarified that this court has not gone into the merits of the case of the either side. Any observation in this judgment shall not be construed as an expression on merits. The first appellate court shall decide the appeal on its own merits without being influenced either by its earlier order or even by this order.
9. The appeal is allowed to the extent aforesaid.
10. The Registry shall sent the writ forthwith.
(N.V.ANJARIA, J.) cmjoshi Page 9 of 9