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[Cites 22, Cited by 0]

Gujarat High Court

Patel Darghabhai Meghrajbhai vs Koli Vaghabhai Varsangbhai on 19 April, 2023

Author: Rajendra M. Sareen

Bench: Rajendra M. Sareen

     C/SA/60/2021                                CAV ORDER DATED: 19/04/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     R/SECOND APPEAL NO. 60 of 2021

                                   With
                CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
                     In R/SECOND APPEAL NO. 60 of 2021
==========================================================

PATEL DARGHABHAI MEGHRAJBHAI Versus KOLI VAGHABHAI VARSANGBHAI ========================================================== Appearance:

MR VISHAL C MEHTA(6152) for the Appellant(s) No. 1 for the Respondent(s) No. 1 ========================================================== CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN Date : 19/04/2023 CAV ORDER
1. The appellant is the original defendant whereas the respondent is the original plaintiff. The plaintiff filed Regular Civil Suit No.17 of 2019 against the defendant before the Civil Court. As per the case of the plaintiff, the plaintiff and the defendant are family relation and before the suit transaction, the defendant had borrowed money as a loan from the plaintiff for 3 to 4 times and that time, the defendant had repaid such loan amount.
2. It is the case of the plaintiff that on 10/1/2008 the defendant requested to the plaintiff to have Rs.1,80,000/-

as a loan and therefore, plaintiff advanced such amount and for that the defendant has drawn promissory note in favour of the plaintiff.

3. It is also the case of the plaintiff that when the time Page 1 of 38 Downloaded on : Wed Apr 19 21:05:24 IST 2023 C/SA/60/2021 CAV ORDER DATED: 19/04/2023 had ripen for the amount, the plaintiff demanded such amount and at that time the defendant had made promise but since the defendant had not paid the amount and therefore on 23/5/2008, the plaintiff served legal notice through lawyer for demanding the amount for which promissory note is drawn and upon receiving vague reply on 3/6/2018, the plaintiff filed the Civil Suit to the effect that the defendant shall be directed to repay Rs.1,80,000/- with interest to the plaintiff.

4. Upon service of the notice, the defendant filed Written Statement at Ex.31 and objected the prayer made in the suit. The plaintiff has examined witnesses. Prior to that the trial court framed the following issues at Ex.7:

"1. Whether the plaintiff proves that the defendant has executed promissory note in favour of the plaintiff in lieu of a loan of Rs.1,80,000/-?
2. Whether the plaintiff proves that the defendant has paid amount of Rs.1,80,000?
3. Whether the plaintiff proves that the plaintiff is entitled to Rs.1,80,000/- from the defendant?
4. Whether the plaintiff proves that he is entitled for interest upon the outstanding amount?
5. Whether the plaintiff is entitled for the reliefs, as prayed for?
Page 2 of 38 Downloaded on : Wed Apr 19 21:05:24 IST 2023
C/SA/60/2021 CAV ORDER DATED: 19/04/2023
6. What Judgement and decree?."

5. The learned Judge has answered Issue Nos.1 to 5 in affirmative and answered issue No.6 as per final order.

6. Considering the evidence on record and hearing the parties, the learned trial court decreed the suit in favour of the plaintiff.

7. Against the aforesaid judgement and decree, the defendant filed Regular Civil Suit No.41 of 2018 before the District Court and the learned 2nd Additional District Judge, Deesa, District Banaskantha, framed the issues for determination, as under :-

"1. Whether the judgement and decree of Regular Civil Suit No.17 of 2009 dated 11/2/2015, which is in question is arbitrary, capricious, perverse and illegal and the judgement and decree require to be interfered with?
2. What order?"

8. Heard Mr.V.C. Mehta, learned advocate for the appellant. He has mainly raised contention that provisions of Order 41 Rule 31 has not been followed by the first appellate court. It is submitted that the contentions raised in the written statement by the plaintiff before the trial Page 3 of 38 Downloaded on : Wed Apr 19 21:05:24 IST 2023 C/SA/60/2021 CAV ORDER DATED: 19/04/2023 court are not taken into consideration and no issue to that effect which can be proved by the defendant, have been raised. It was the case of the defendant that as the relation between the plaintiff and defendant were cordial, the plaintiff and the defendant had purchased a Tractor jointly in which down payment installment of the Tractor and expenses towards the Tractor was to be born by the plaintiff and the defendant in the ratio of 50:50 and documents to that effect was also executed. It is submitted that the so- called promissory note has been concocted and it was not regarding any loan advanced by the plaintiff. All the these defences of the defendant have not been taken into consideration and no issue to that effect has been framed. It is submitted that the provisions of Order 41 Rule 31 provides how the appellate court has to deal with the appeal preferred under section 96 of the Code of Civil Procedure and what is the procedure to be followed by the first appellate court. It is submitted that the said procedure has not been followed.

9. Considering the above facts, the First Appellate Court has to apply its mind independently and frame the issues appropriately and independently in view of the pleadings of the parties. The provisions of Order 41 of C.P.C. provides that how the Appellate Court has to deal with the Appeal under Section 96 of the Code and the procedure is to be followed as per Order 41 of C.P.C. 11. In the recent judgment of the Hon'ble Apex Court in case of K. Karuppuraj vs M. Ganesan reported in 2021 (10) SCC 777, the Hon'ble Apex Court has held that while deciding Page 4 of 38 Downloaded on : Wed Apr 19 21:05:24 IST 2023 C/SA/60/2021 CAV ORDER DATED: 19/04/2023 the First Appeal, compliance of Order 41 Rule 31 of C.P.C. is mandatory.

10. In the recent judgment of the Hon'ble Apex Court in case of K. Karuppuraj (supra) and Judgments of this Court, which are referred hereinafter, time and again reiterated by this Court and Hon'ble Apex Court that how and in which manner the First Appellate Court has to decide the Appeal under Section 96 of the Code.

11. In the decision in case of Budhabhai Bhikhabhai Parmar and others vs. Shantaben WD/o Bhalabhai Becharbhai reported in 2013 (4) GLR 3595, the Court has held as under:

[4.0] Having heard Shri Adeshra, learned advocate appearing on behalf of the appellants and Shri Bukhari, learned advocate appearing on behalf of the respondent and considering the impugned judgment and order passed by the learned Appellate Court it appears to the Court that the impugned judgment and order passed by the learned Appellate Court cannot be sustained. From the impugned judgment and order passed by the learned Appellate Court it appears that the learned Appellate Court has disposed of the Appeal preferred under Order 41 of the CPC read with Section 96 in a most casual and perfunctory manner. Apart from the fact that the learned Appellate Court has not framed the points for Page 5 of 38 Downloaded on : Wed Apr 19 21:05:24 IST 2023 C/SA/60/2021 CAV ORDER DATED: 19/04/2023 determination as required under Order 41 Rule 31 of the CPC, it appears that even the learned Appellate Court has not exercised the powers vested in it as a first Appellate Court. Learned Appellate Court has neither re-appreciated the entire evidence on record nor has given any specific findings on the issues which were even raised before the learned trial Court. The Hon'ble Supreme Court in the case of B.V. Nagesh and Anr. vs. H.V. Sreenivasa Murthy reported in (2010)13 SCC 530, in para 4 has observed and held as under:
"4. The appellate Court has jurisdiction to reverse/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 rehearing 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 Page 6 of 38 Downloaded on : Wed Apr 19 21:05:24 IST 2023 C/SA/60/2021 CAV ORDER DATED: 19/04/2023 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]."

[4.1] In the said decision, the Hon'ble Supreme Court has also considered how the regular First Appeal is to be disposed of by the first Appellate Court. In para 3 of the said decision, the Hon'le Supreme Court has observed and held as under:

3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions, Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court 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.

[4.2] Even in the recent decision in the case of H. Page 7 of 38 Downloaded on : Wed Apr 19 21:05:24 IST 2023 C/SA/60/2021 CAV ORDER DATED: 19/04/2023 Siddqui (Dead) By L.Rs. vs. A. Ramalingam reported in 2011(2) GLR 1429 in para 21, the Hon'ble Supreme Court has observed and held as under:

"21. The said provisions provide 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 the 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 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 Page 8 of 38 Downloaded on : Wed Apr 19 21:05:24 IST 2023 C/SA/60/2021 CAV ORDER DATED: 19/04/2023 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. (Vide:
Thakur Sukhpal Singh v. Thakur Kalyan Singh & Anr., AIR 1963 SC 146;
Girijanandini Devi & Ors. v. Bijendra Narain Choudhary, AIR 1967 SC 1124; G. Amalorpavam & Ors. v. R.C. Diocese of Madurai & Ors., (2006) 3 SCC 224; Shiv Kumar Sharma v. Santosh Kumari, (2007) 8 SCC 600; and Gannmani Anasuya & Ors. v. Parvatini Amarendra Chowdhary & Ors., AIR 2007 SC 2380 : 2007 (10) SCC 296)"

[4.3] It also cannot be disputed that while deciding and disposing of the First Appeal under Order 41 read with Section 96 of the CPC, the learned Appellate Court is required to frame the points for determination as envisaged under Order 41 Rule 31 of the CPC. However, as observed by the Page 9 of 38 Downloaded on : Wed Apr 19 21:05:24 IST 2023 C/SA/60/2021 CAV ORDER DATED: 19/04/2023 Hon'ble Supreme Court in the case of G. Amalorpavam and Ors. vs. R.C. Diocese of Madurai and Ors. reported in (2006)3 SCC 224, if from the judgment and order passed by the learned Appellate Court it is found that the learned Appellate Court has applied mind and decided all the issues and has given his own findings solely on the ground that the points for determination are not framed, the judgment and order passed by the learned Appellate Court is not vitiated. In para 8, the Hon'ble Supreme Court has observed and held as under:

8. The question whether in a particular case there has been a substantial compliance with the provisions of Order 41 Rule 31 CPC has to be determined on the nature of the judgment delivered in each case. Noncompliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it and the second appellate Court is in a position to ascertain the findings of the lower appellate Court. It is no doubt desirable that the appellate court should comply with all the requirements of Order 41 Rule 31 CPC. But if it is possible to make out from the judgment that there is substantial compliance with the said Page 10 of 38 Downloaded on : Wed Apr 19 21:05:24 IST 2023 C/SA/60/2021 CAV ORDER DATED: 19/04/2023 requirements and that justice has not thereby suffered, that would be sufficient.

Where the appellate court has considered the entire evidence on record and discussed the same in detail, come to any conclusion and its findings are supported by reasons even though the point has not been framed by the appellate Court there is substantial compliance with the provisions of Order 41 Rule 31 CPC and the judgment is not in any manner vitiated by the absence of a point of determination. Where there is an honest endeavour on the part of the lower appellate court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations appearing on both sides is clearly manifest by the perusal of the judgment of the lower appellate court, it would be a valid judgment even though it does not contain the points for determination. The object of the Rule in making it incumbent upon the appellate court to frame points for determination and to cite reasons for the decision is to focus attention of the Court on the rival contentions which arise for determination and also to provide litigant parties opportunity in understanding the Page 11 of 38 Downloaded on : Wed Apr 19 21:05:24 IST 2023 C/SA/60/2021 CAV ORDER DATED: 19/04/2023 ground upon which the decision is founded with a view to enable them to know the basis of the decision and if so considered appropriate and so advised to avail the remedy of Second Appeal conferred by Sec. 100 of the Code of Civil Procedure.

[4.4] However, considering the impugned judgment and order passed by the learned Appellate Court and as stated herein above, the learned Appellate Court has not given its own findings on the issues involved in the matter and even which were framed by the learned trial Court. There is no appreciation / reappreciation of evidence on record by the learned Appellate Court and the learned Appellate Court has disposed of the First Appeal under Order 41 read with Section 96 of the CPC in a most casual and perfunctory manner and that too only in one paragraph and therefore, the impugned judgment and order passed by the learned Appellate Court dismissing the Appeal cannot be sustained and the same deserves to be quashed and set aside and the matter is required to be remanded to learned Appellate Court to decide and dispose of the same in accordance with law and on merits and after framing the required points for determination as envisaged under Order 41 Rule 31 of the CPC and on reappreciation of the entire evidence on record and giving its own findings on all the issues/points for determination.

Page 12 of 38 Downloaded on : Wed Apr 19 21:05:24 IST 2023

C/SA/60/2021 CAV ORDER DATED: 19/04/2023 As such the learned advocate appearing on behalf of the respondent original defendant is not in a position to dispute the above. He is also not in a position to dispute that the learned Appellate Court has not reappreciated the entire evidence on record and has not given its own findings on all issues which is the requirement while deciding the First Appeal and as an first Appellate Court."

12. In the decision in case of Lakhu Karman Bharwad vs. State of Gujarat reported in 2015 LawSuit(Guj) 855, the Court has held as under:

"10. 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 has observed in paras 21 and 22 as under:
"21. The said provisions provided guidelines for Page 13 of 38 Downloaded on : Wed Apr 19 21:05:24 IST 2023 C/SA/60/2021 CAV ORDER DATED: 19/04/2023 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.
Page 14 of 38 Downloaded on : Wed Apr 19 21:05:24 IST 2023
C/SA/60/2021 CAV ORDER DATED: 19/04/2023 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.
22. In B.V. Nagesh v. H.V. Sreenivasa Murthy, 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 rehearing 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 Page 15 of 38 Downloaded on : Wed Apr 19 21:05:24 IST 2023 C/SA/60/2021 CAV ORDER DATED: 19/04/2023 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."

11. 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 Order41, Rule31 of the Code. It has also been observed that on each point, the Appellate Court has to give its own finding that too after reappreciation of entire evidence on record.

12. In addition to the above principles of provisions of Order 41 Rule 31 of the Code, the Bombay Civil Manual, which has been Page 16 of 38 Downloaded on : Wed Apr 19 21:05:24 IST 2023 C/SA/60/2021 CAV ORDER DATED: 19/04/2023 made applicable to the State of Gujarat, provides in detail the Civil Courts functioning. Different Chapters provided therein make the provisions of the Code 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 aCourt, who is deciding disputes between the parties of a civil nature.

12.1. As far as Appeals arising from the Trial Courts judgment, decree and order are concerned, ChapterXX of the Code deals with the same. Para/Rule414 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."

12.2. In my opinion, combined reading of Page 17 of 38 Downloaded on : Wed Apr 19 21:05:24 IST 2023 C/SA/60/2021 CAV ORDER DATED: 19/04/2023 the Order41 Rule31 of the Code as well as Rule414 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. 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, rule5). 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 subrule (5) of rule 1 of Order XIV may be found of Page 18 of 38 Downloaded on : Wed Apr 19 21:05:24 IST 2023 C/SA/60/2021 CAV ORDER DATED: 19/04/2023 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.
(c) 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 Page 19 of 38 Downloaded on : Wed Apr 19 21:05:24 IST 2023 C/SA/60/2021 CAV ORDER DATED: 19/04/2023 Provincial Insolvency Act, the issue should not be Is the transfer bogus and fraudulent?
(d) Issues should be selfcontained. 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.

12.3. Now in the present case, it is apparent from the judgment and order of the lower Appellate Court that the provisions of Order41 Rule31 of the Code and Rule414 of the Bombay Civil Manual are not followed.

14. A similar view was taken by this Court in the case of Mahmad Ahmadbhai vs. Fatmaben Abdulla & Ors. as reported in 2007 (4) GLR 2789; in the case of Prajapati Page 20 of 38 Downloaded on : Wed Apr 19 21:05:24 IST 2023 C/SA/60/2021 CAV ORDER DATED: 19/04/2023 Abraham Nagarbhai & Anr. Vs. Prajapati Harjibhai & Ors., 2010 (2) GLH 551 as well as in the case of Dumala Vahpara Gram Panchayat vs. Chunilal Tribhovandas Patel & Ors., as reported at 1999(2) GLH 959."

13.2 In the decision in case of Ajitsinh Babubhai Jadav vs. Wadhwan Mahajan Panjarapol reported in 2013 LawSuitGuj) 251, the Court has held as under:

"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 Page 21 of 38 Downloaded on : Wed Apr 19 21:05:24 IST 2023 C/SA/60/2021 CAV ORDER DATED: 19/04/2023 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 Page 22 of 38 Downloaded on : Wed Apr 19 21:05:24 IST 2023 C/SA/60/2021 CAV ORDER DATED: 19/04/2023 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 Page 23 of 38 Downloaded on : Wed Apr 19 21:05:24 IST 2023 C/SA/60/2021 CAV ORDER DATED: 19/04/2023 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 Page 24 of 38 Downloaded on : Wed Apr 19 21:05:24 IST 2023 C/SA/60/2021 CAV ORDER DATED: 19/04/2023 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:

Page 25 of 38 Downloaded on : Wed Apr 19 21:05:24 IST 2023
C/SA/60/2021 CAV ORDER DATED: 19/04/2023 "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."
2 In my opinion, combined reading of the Order-41 Rule31 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 Page 26 of 38 Downloaded on : Wed Apr 19 21:05:24 IST 2023 C/SA/60/2021 CAV ORDER DATED: 19/04/2023
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 Page 27 of 38 Downloaded on : Wed Apr 19 21:05:24 IST 2023 C/SA/60/2021 CAV ORDER DATED: 19/04/2023 section or rule or other provision under which it is so barred.
(c) 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"?
(d) 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 Page 28 of 38 Downloaded on : Wed Apr 19 21:05:24 IST 2023 C/SA/60/2021 CAV ORDER DATED: 19/04/2023 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"

13. In the decision in case of Shah Keshavji Pashuji Vira (Decd) and ors vs. Shah Mavji Pasu-Decd and ors reported in 2014 LawSuit(guj) 293, the Court has held as under:
"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 Page 29 of 38 Downloaded on : Wed Apr 19 21:05:24 IST 2023 C/SA/60/2021 CAV ORDER DATED: 19/04/2023 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, 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
1. 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. Page 30 of 38 Downloaded on : Wed Apr 19 21:05:24 IST 2023 C/SA/60/2021 CAV ORDER DATED: 19/04/2023 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 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 Page 31 of 38 Downloaded on : Wed Apr 19 21:05:24 IST 2023 C/SA/60/2021 CAV ORDER DATED: 19/04/2023 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 noncompliance 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 and on law. The Appellate Court should not modify the decree of the Trial Court by a cryptic order without Page 32 of 38 Downloaded on : Wed Apr 19 21:05:24 IST 2023 C/SA/60/2021 CAV ORDER DATED: 19/04/2023 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 Page 33 of 38 Downloaded on : Wed Apr 19 21:05:24 IST 2023 C/SA/60/2021 CAV ORDER DATED: 19/04/2023 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.
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, Page 34 of 38 Downloaded on : Wed Apr 19 21:05:24 IST 2023 C/SA/60/2021 CAV ORDER DATED: 19/04/2023 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."

14. In the decision in case of Mahmad Ahmadbhai vs. Fatmaben Abdulla reported in 2007(4) GLR 2789 the Court has held as under:

"5. In my opinion, Mr.Suthar is right. The appeal preferred before the lower appellate Court was one under Section 96 CPC. All matters at issue were at large before the lower appellate Court. Points for determination were required to be framed in accordance with Order 41 Rule 31 CPC and were required to be considered and decided in accordance with law. Instead, the learned Fast Track Judge has recorded a mere satisfaction that "...on going through the rival contentions and the findings on issue recorded by the learned trial Judge, I come to the conclusion that the learned trial Judge has rightly allowed the suit of the plaintiffs and this appellate Court has found no reason to make any kind of interference with the impugned judgment and decree."

6. By no stretch of imagination the learned Fast Page 35 of 38 Downloaded on : Wed Apr 19 21:05:24 IST 2023 C/SA/60/2021 CAV ORDER DATED: 19/04/2023 Track Judge can be said to have performed his duty of deciding the appeal before him. The approach of the learned Fast Track Judge is perfunctory and contrary to the legal principles. To me, it appears that the learned Fast Track Judge has, in the wake of quick disposal, gone off the track. Instead of deciding the matter before him, the learned Fast Track Judge has merely disposed of the matter. The attempt appears to be that of bagging disposal rather than deciding the lis before the Court."

15. On bare perusal of the decision of the First Appellate Court passed in Regular Civil Appeal, it is clearly borne out that the learned First Appellate Court has committed serious error in not deciding the appeal in accordance with the provisions of Order 41 of CPC and therefore, present appeal is required to be remanded back to the First Appellate Court to determine the appeal in accordance with the provision of Order 41 Rule 11, 15, 31 and 33 and more particularly, considering the recent pronouncement of Hon'ble Apex Court and this Court, present appeal deserves to be allowed. The impugned judgment and order passed by the First Appellate Court is hereby quashed and set aside.

16. In view of the above settled principles of law by delivering the judgment, the First Appellate Court is required to substantially comply with the provision of Order 41 Rule 31 of the C.P.C..

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C/SA/60/2021 CAV ORDER DATED: 19/04/2023

17. In present case on perusal of the judgment and order of the lower Appellate Court, it is abundantly clear that the First Appellate Court has failed to discharge obligation placed on it as a First Appellate Court and therefore, in my opinion the judgment and award of the lower Appellate Court deserves to be quashed and set aside and the same is required to be remanded to the First Appellate Court for considering the same a fresh on merits and in accordance with law after framing point of determination in accordance with Order 41 Rule 11, 14, 15, 31 and 33 of the Code.

18. In the result, present appeal is allowed. The impugned judgement and decree dated 31/12/2020 passed by the 2nd Additional District Judge, at Deesa, Disstrict Banaskantha in Regular Civil Appeal No.41 of 2018 is hereby quashed and set aside and the matter is remanded back to the First Appellate Court to decide the same a fresh on merits and in accordance with law after formulating the points of determination in view of the pleadings of the parties.

Accordingly the proceedings of Regular Civil Appeal No. 41 of 2018 is hereby restored to original file. The learned First Appellate Court shall decide the same as expeditiously as possible and preferably within a period of 6 months from the date of receipt of certified copy of present order without influenced by the earlier order passed by First Appellate Court after affording opportunity of hearing to the learned advocates for respective parties.

It is clarified that the matter is remanded only on the ground referred to herein above of the case.

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19. Present Second Appeal stands disposed of accordingly.

ORDER IN CIVIL APPLICATION No.1 of 2021:

In view of disposal of the main Appeal, present Civil Application does not survive and the same stands disposed of accordingly.
(RAJENDRA M. SAREEN,J) R.H. PARMAR Page 38 of 38 Downloaded on : Wed Apr 19 21:05:24 IST 2023