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The Appellant / Defendant has filed the instant Second Appeal as against the Judgment and Decree of the First Appellate Court, viz., the Second Additional Sub-Court, Tirunelveli, dated 08.09.2005 in A.S.No. 197 of 2005, in reversing the Judgment and Decree, dated 28.02.2005, in O.S.No. 393 of 2004, passed by the Learned Principal District Munsif, Tirunelveli.

2. The First Appellate Court, viz., the Second Additional Sub-Court, Tirunelveli, while passing the Judgment in A.S.No.197 of 2005, dated 08.09.2005, has inter alia observed that PW-1, G.Bernardsha Samuel and PW-2, Peer Mohammed, have been examined to establish the execution of suit pronote Ex. A-1, and there is no necessity to examine the witnesses mentioned in suit pronote as per Section 68 of the Indian Evidence Act 1872 and has come to a resultant conclusion that the Appellant/Defendant has not proved that he has not received the loan from the Respondent/Plaintiff and further that the Respondent/Plaintiff has proved his case and consequently, allowed the Appeal by setting aside the Judgment and Decree of the Trial Court, dated 28.02.2005, in O.S.No. 393 of 2004 and decreed the suit as prayed for in the plaint together with costs.

"i. Whether the Judgment of the Lower Appellate Court warrants interference since the Lower Appellate Court has not framed points for determination as contemplated under Order 41 Rule 31 of C.P.C.? and ii. Whether the Lower Appellate Court has committed error in casting the burden of proof upon the Defendant/Appellant, while the Respondent/ Plaintiff has to prove the execution of pronote in accordance with law, when the Defendant denies the execution?"

6. The Contentions, Discussions and Findings on point No. 1 and 2. The Learned counsel for the Appellant/Defendant contends that the First Appellate Court has only framed two points for consideration in A.S.No. 197 of 2005 and in fact it has not formulated the points for determination, the decision thereon, the reasons for the decision etc, and since the Judgment of the First Appellate Court, viz., the Second Additional Sub-Court, Tirunelveli, is not in conformity with Order 41 Rule 31 of C.P.C, the same is not in accordance with law and on this simple ground alone, the Second Appeal is to be allowed in imini.

7. On perusal of the First Appellate Court Judgment in A.S.No.197 of 2005, dated 08.09.2005, it transpires that the First Appellate Court, viz., the Second Additional Sub-Court, Tirunelveli, has framed the two points (1) Whether the Trial Court is correct in stating the Judgment of dismissing the original suit as against the Appellant / Plaintiff?; and (2) Whether the Appeal is to be allowed?. These two points for determination are nothing but a omni bus or wholesale points, which the First Appellate Court has framed. At this stage, this Court necessarily points out that the ingredients of Order 41 Rule 31 of C.P.C., are mandatory and it is the primordial duty of the First Appellate Court to frame the points for consideration so as to clear up the pleading and focus the attention of Court and of the parties on the specific and rival contentions, which crop up for determination. It is desirable that the First Appellate Court should frame necessary points for consideration and to record its findings on all vital issues so as to avoid a remand of the case, in case, the Court of Appeal is not in crime with any of the findings rendered by the Trial Court.

vsg To

1. The II Additional Sub-Judge Tirunelveli

2. The Principal District Munsif Tirunelveli