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IN THE HIGH COURT OF BOMBAY
R.M. S. Khandeparkar and S. R. Dongaonkar, JJ.
KHATUNBI w/o MOHAMMAD SAYEED and others - Appellants.
Vs.
AMINABAI w/o MOHAMMAD SABIR - Respondent.
For appellants: S. P. Kshirsagar For respondent: Masood Shareef
Civil Procedure Code, 1908 - Order XLI, Rule 3-A Condonation of delay In case of delay in filing the appeal, the memo of appeal shall be accompanied by an application supported by an affidavit setting forth the facts on which the appellant seeks to rely to satisfy the Court that he had sufficient cause for not preferring the appeal within the prescribed period The application for condonation of delay in filing the appeal cannot be filed as a mater of right after filing of appeal In case there is delay in filing the appeal, then such application should be filed along with the memo of appeal and not thereafter.
Civil Procedure Code, 1908 - Order XLI, Rule 31 and Section 96 Non-compliance of mandatory provision of law comprised under Order XLI, Rule 31 by the appellate Court while passing the impugned judgment Compliance of Rule 31 of Order XLI is mandatory Failure to comply with the said provision of law would not be a mere irregularity Requirement of formulation of points for determination by the Appellate Court while deciding the appeal is mandatory. The judgment ultimately decides about the rights of the parties and the issue sought to be raised by the adversaries in the litigation. In order to make it known to the litigating parties that the Judge delivering the judgment after considering the rival contentions, the materials placed on record and on application of mind to the same, has decided the matter, the judgment should apparently disclose the points which are considered by the Judge as relevant for consideration while dealing with the matter. This can be revealed from the judgment only when the points for determination are properly formulated by the Court before delivering its decision on the rival contentions of the parties. Being so, it cannot be said to be a mere formality in the course of delivering the judgment upon the adjudication of the rights of the parties in the matter. It is rather a very important stage in the delivery of the judgment by the Court. Being so, it is to be construed as a mandatory requirement to be complied with by the Appellate Court while delivering the judgment. Bare perusal of the impugned judgment discloses that the Single Judge, merely because nobody had appeared on behalf of the respondent in the said appeal, proceeded to dispose of the appeal without complying with the provisions of Order XLI, Rule 31. Bare reading of the judgment nowhere discloses that the Single Judge having considered the necessity of formulating the questions which are required to be dealt with in the appeal. It is pertinent to note that when the Appellate Court has reversed the judgment of the trial Court, in such circumstances, it was absolutely necessary for the first Appellate Court to consider what were the points involved in the matter and accordingly formulate the points for determination and then deal with those points with regard to the materials on record. Failure on the part of the Single Judge in this regard clearly warrants setting aside of the judgment and remanding the matter to the first Appellate Court to consider the appeal afresh in accordance with the provisions of law. AIR 2003 SC 351 and 2001(2) Mh LJ 786, Rel. 2005(1) Mh LJ 43 does not lay down correct proposition of law on the point in issue.
R. M. S. KHANDEPARKAR, J. :- Heard the learned advocates parties.
2. This appeal arises from the judgment dated 2nd February, 1988 in First Appeal No.4 of 1978. By the impugned judgment, the learned Judge has set aside the judgment and decree dated 29-4-1977 passed by Court in Special Civil Suit No. 226 of 1973 and has ordered issue preliminary decree for partition of the property, while declaring the share parties and also giving directions for rendition of the accounts from 5-6-1 the respondent/plaintiff gets the possession of the l/7th share in the properly.
3. Though the impugned judgment and decree is sought to be challenged on various grounds, it is not necessary to deal with all those grounds and to refer to only one ground which relates to non-compliance of ma provision of law comprised under Order 41, Rule 31 of the Code Procedure by the appellate Court while passing the impugned judgment.
4. Few facts relevant for the decision are that the respondent/plaint a suit for partition claiming right to the property in question which was contested by the appellants and on conclusion of trial, the suit was dismissed. The was carried in F.A. No.4 of 1978 which was disposed of by the judgment. In fact, the appeal was disposed of in the absence of the appellants herein who were the respondents in the first appeal. Undoubtedly, the appellants served, however, they failed to appear before the Court at the time of the arguments in the first appeal.
5. Order 41, Rule 31 of the Code of Civil Procedure clearly provides that judgment of the appellate Court shall be in writing and shall state the points r determination, the decision thereon, the reasons for the decision, and where decree appealed from is reversed or varied, the relief to which the appellant is titled, and shall at the time that it is pronounced be signed and dated by the age or by the Judges concurring therein.
6. Plain reading of the said provision would disclose that the appellate court before proceeding to deliver the judgment on merits of the case has to formulate the points for determination and with reference to such points for termination, analyse the materials on record and thereupon arrive at the conclusion to be delivered as its decision. Obviously the decision should disclose reasons for the decision. However, the reasons for decision by themselves cannot constitute the points for determination. The points for determination have be formulated in order to enable the Court to identify the exact points in controversy in the matter and with reference to those points, the Court has to appreciate the evidence led by the parties. In fact, the law on this aspect has been ell settled by the decision of the learned Single Judge of this Court in Vishwash alu VS. Ghasiram Ramratan Jajum, AIR 1975 Bom. 278 wherein it has been Id that the compliance of Order 41, Rule 31 is mandatory and the expression used therein "shall state" clearly discloses that the failure to comply with the said provision of law would not be a mere irregularity. Indeed, the phraseogy used Rule 31 apparently discloses that compliance of the said provision is not a were formality and therefore failure thereof cannot be said to be a mere regularity. This is also clear from Rule 30 of Order 41 and in particular sub (2) thereof. Rule 30(2) of Order 41 provides that "where a written judgment s to be pronounced, it shall be sufficient if the points for determination, the decision thereon and the final order passed in the appeal are read out and it shall not be necessary for the Court to read out the whole judgment, but a copy of the hole judgment shall be made available for the perusal of the parties or their leaders immediately after the judgment is pronounced." Obviously, in cases here on conclusion of the arguments in appeal, the judgment is reserved to be delivered and thereafter it is sought to be pronounced, it is not sufficient merely declare as to whether the appeal is allowed or not
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