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Gujarat High Court
Judgename :K.M.MEHTA
BHIL KANJI BHAGWAN (SINCE DECD.) THROUGH HIS HEIRS laxmiben KANJI - Appellant
Versus
BHIL KARSAN BIJAL - Respondent
C.R.A. 720 of 1979
Decided On : 08/07/2003
The expression appeal has not been defined in the Code. According to dictionary meaning, however, appeal is an application or petition to a higher authority or a Court of law for reconsideration of the decision of a lower authority or an inferior Court of law. It is an application or a proceeding for review to be carried out by a higher Tribunal of a decision given by a lower one. An appeal is one in which the question is, whether the order of the Court from which an appeal is brought was right on the materials which that Court had before it.
[Para 5.1]
(b) Civil Procedure Code, 1908 (Central Act 5 of 1908) - Sec. 96 - Appeal - Elements of appeal - It includes three basic elements - (i) decision from which appeal is made (ii) a person aggrieved and (iii) a reviewing body ready and willing to entertain the appeal.
An appeal includes three basic elements; (i) a decision (usually a judgment of a Court or the ruling of an administrative body) from which an appeal is made; (ii) a person or person aggrieved (who is often, though by no means necessarily party to the original proceedings); and (iii) a reviewing body ready and willing to entertain the appeal.
[Para 5.3A]
(c) Civil Procedure Code, 1908 (Central Act 5 of 1908) - Order 41 Rule 31 - Contents of judgment - It must be in writing and must state points for determination and decision thereon with reasons and relief awarded - In the judgment of the instant case all the ingredients are present, therefore, there is no violation of the provision.
In this case the trial Court has raised all issues and determined the same. The appellate Court has stated the points for determination, the decision thereon and the reasons for decision. All the ingredients of Order 41 Rule 31 have been stated by the appellate Court and the appellate Court has decided the appeal after giving cogent and convincing reasons in this behalf.
[Para 5.4(D)]
The appellate Court has specifically mentioned all points raised by the trial Court and specifically reconsidered all the relevant points while giving reasons and, therefore, there is no violation of provisions of Order 41 Rule 31. The first appellate Court had covered all important questions involved in the case. The appellate Court has also considered the exact questions which arises in the appeal and determine the relevant issues in the judgment. The appellate Court has noticed all necessary points for determination and gave findings on relevant issues formulated by the trial Court and, therefore, the judgment is in accordance with Order 41 Rule 31 of the CPC. The appellate Court has raised all points and cleared up pleadings focus and attention of the Court and the parties and specifically stated the reasons and, therefore, the appellate Court has complied with Order 41 Rule 31 of the CPC. The appellate Court while reversing the judgment of the trial Court touched the question of applicability of Sec. 12(3)(a) and Sec. 12(3)(b) of the Act and gave specific findings after considering the provisions of the Gujarat Education Cess Act and gave cogent and convincing reasons and, therefore, there is no violation of Order 41 Rule 31 of the CPC.
[Para 5.4(E)]
(d) Civil Procedure Code, 1908 (Central Act 5 of 1908) - Secs. 99, 107 & Order 41 Rule 31 - Bombay Rent Act - Secs. 12(3)(a), 12(3)(b) & 29 - Gujarat Education Cess Act, 1962 (Central Act 35 of 1962) - Sec. 19 - Eviction - Absence of framing proper points of determination - Merely on that account the whole judgment can not be held vitiated - Essential requirement is substantial compliance - In case appellate Court judgment rejects its conscious application of mind and finding supported by reasons on all issues - Court has also considered the provisions of Cess Act, 1962 and Bombay Rent Act in proper prospectus - Therefore, there appears no reasons to interfere with the order passed by appellate Court.
There are four requirements in Rule 31 which the learned appellate Judge has to take into account while giving his judgment in appeal. One of the requirements is to frame points of determination which would necessarily mean the points required to be determined by him in appeal as may be canvassed or argued by the parties. He is not required to go beyond the contentions raised in appeal at the time of hearing. It is no doubt true that the points for determination as are pointed out in the judgment reported in para 8 of the judgment reported in 1985 Bom page 98 are not sufficient compliance. However, it cannot be overlooked that when the Judge has framed proper points of determination which cannot be said to be vague or improper and when all the aspects are considered by giving reasons it cannot be said that there is non-compliance of the said Rule 31 as a whole since the said Rule 31 requires compliance of three other requirements. In other words, substantial compliance is necessary and if the other three requirements are satisfied the whole judgment cannot be said to have been vitiated only because a proper point for determination is not framed by the learned Judge.
[Para 5.4(F)]
In this case the judgment of the appellate Court reflects its conscious application of mind, and record findings supported by reasons, on all the issues arising alongwith the contentions put forth and pressed by the parties for decision of the appellate Court and, therefore, the said decision of the appellate Court is in consonance with the principle laid down by the Apex Court in the case of Santosh Hazari vs. Purushottam Tiwari (dead) by legal representatives, reported in AIR 2001 SCW 723 para 15 of the said judgment.
[Para 5.5(G)]
Court has considered the provisions of the CPC particularly definition of decree, definition of judgment, Sec. 99 and Sec. 107 of CPC and other judgments which Court has been stated in this behalf. In view of overall scheme of CPC it appears that the learned appellate Judge has complied with Order 41 Rule 31 of the CPC in this behalf.
[Para 6(A)]
Court has considered the facts and circumstances of the case particularly provisions of Education Cess Act and provision of Rent Act. In Court view, the learned Judge has given very cogent and convincing reasons and held that provisions of Sec. 12(3)(a) of the Rent Act are applicable as rent was not paid within one month from the date of service of notice and rent was due for more than six months from the date of service of the notice and there was no dispute about the standard rent was raised within one month from the date of service of notice. The learned Judge has given very cogent and convincing reasons to arrive at the said finding and, therefore, Court does not see any reason to interfere with the order passed by the appellate Court in this behalf and, therefore, the same is rejected with no order as to costs. The judgment and decree passed by the appellate Court is confirmed.
[Para 7]
( 1 ) BHIL Kanji Bhagwan, petitioner-original defendant since deceased through his heirs and legal representatives have filed this Civil Revision application under Sec. 29 of the Bombay Rent Act, challenging the judgment and decree dated 30th April, 1979, passed by the learned District Judge, Rajkot, in Civil Appeal No. 109 of 1978. The learned Judge by his impugned judgment was pleased to allow the appeal and was pleased to quash and set aside the judgment and decree dated 31st August, 1978, passed by the learned Jt. Civil judge (J. D.), Rajkot in Regular Civil Suit No. 886 of 1975 filed by original plaintiff Karsan Bijal and others respondents herein.
( 2 ) THE facts giving rise to this Civil Revision Application are as under :2. 1 Karsan Bijal and others - plaintiffs (respondent No. 1 in the petition since deceased through his legal heirs and representatives) had given the suit premises situated at Juna Bhilwas, Sheri No. 7, Near Jansatta Press at Rajkot (hereinafter referred to as the suit premises) on lease to the defendant Kanji bhagwan (since died during the pendency of the proceedings now through his legal heirs and representatives) for monthly rent at Rs. 9/ -. 2. 2 It is a case of the plaintiff that plaintiff No. 1 is the owner and rent collector of the suit premises. As the defendant had paid the rent only upto 31st December, 1970, and thereafter, from 1-1-1971 the defendant failed and neglect to make the payment of rent, the plaintiffs were constrained to address a notice to the defendant dated 16-9-1974 (Exh. 21 ). In the said notice, it was alleged that the defendant has not paid the rent from 1-1-1971 to 31-8-1974 i. e. for 44 months for which he has not paid the rent of Rs. 396/ -. The defendant did not reply to the said notice and ultimately the plaintiff Bhil Karsan Bijal filed a suit on 1st September, 1975, on the ground of the arrears of rent and acquiring the suitable premises at Jamnagar. 2. 3 The plaintiffs-respondents herein filed a suit against the defendant on the ground of non-user of the premises also. In the said suit also, the plaintiffs claimed rent from 1-1-1971 to 31-10-1974 for total 46 months amounting to total Rs. 414/-, mesne profits since 1-11-1974 to 31-7-1975 for 9 months i. e. Rs. 81/ -. In all Rs. 510/- claimed by the plaintiff. 2. 4 The defendant replied to the said suit by filing written statement at exh. 9. In the said written statement, it was stated that originally the defendant occupying the suit premises since 1954 and at that time the monthly rent was rs. 7/-, and thereafter, the monthly rent was increased to Rs. 9/ -. The defendant stated that he was ready and willing to pay the rent but the plaintiffs have not accepted the same. The said written statement was filed on 15th January, 1976. 2. 4 (A) Thereafter, the learned trial Judge has framed the following issues : (1) Whether the plaintiffs prove that the defendant is in arrears of rent for six months or more and that he has neglected or refused to pay the same within one month of receipt of suit notice? (2) What is the standard rent of the suit premises? (3) What is due and whether any part of it is time-barred? (4) Whether the suit notice is legal and valid? (5) Whether the defendant has acquired or been allotted? (6) Whether the suit is bad for non-joinder of necessary parties? (7) Whether the plaintiffs are entitled to eviction decree? (8) Whether the plaintiffs are entitled to running mesne profits? (9) What order and decree?2. 5 Before the trial Court, the plaintiff examined himself namely Shri Karsan bijal at Exh. 15. In his evidence, he has stated that his father had died and from that onwards he is the owner of the premises, the defendants are the tenants of the suit premises at the monthly rent of Rs. 9/- p. m. Initially his father was collecting the rent and after the death of his father he is collecting the rent. The plaintiff has stated that defendant has paid the rent upto 31st december 1970, th
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