Mandatory compliance with Order 41 Rule 31 of the Civil Procedure Code for the First Appellate Court to independently assess evidence, frame points for consideration, and decide the appeal in accordance with the law.

ORDER :

1. Being aggrieved and dissatisfied by the impugned judgment and order dated 08.08.2016 passed by the learned 3rd Additional District Judge, Kalol, Gandhinagar in Regular Civil Appeal No.26 of 2016, the appellants have preferred the present second appeal.

2. Short facts of the present case are that the appellants’ father had filed Special Civil Suit No.273 of 2000 before the Court of learned Senior Civil Judge, Mehsana, camp at Kalol for partition of the ancestral property i.e. lands bearing revenue survey nos.339, 393, 394, 395 and 397, block no.410 and 515 falling within the revenue limits of Village: Vadsar, Taluka: Kalol. The said suit came to be dismissed by the Trial Court on 15.01.2004. Against the said judgment and decree, the original plaintiff preferred Regular Civil Appeal No.26 of 2016, which came to be dismissed by the First Appellate Court on 08.08.2016. Feeling aggrieved by the said judgment and order, the appellants have preferred the present appeal.

3. Heard learned counsel appearing for the respective parties.

4. Learned counsel appearing for the appellants has submitted that the First Appellate Court has not properly determined the substantial questions of law. He has relied upon the decision of this Court dated 22.09.2022 passed in Second Appeal No.315 of 2017 and submitted that the appeal deserves to be allowed.

5. Considering the facts of the case and materials placed on record, it appears that the First Appellate Court has not framed any substantial questions of law. I have also perused the impugned judgment and order passed by the Courts below. In my opinion, under Order 41 Rule 31 of the Civil Procedure Code (hereinafter be referred to as “the Code”), the First Appellate Court is bound to frame points for consideration, however, the same is not done. The provisions of Order 41 of the Civil Procedure Code provides that how the First 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 the Code. It appears that this Court has decided the similar issue in Second Appeal No.315 of 2017 vide order dated 22.09.2022.

6. It is worthwhile to refer to the decision in case of Ajitsinh Babubhai Jadav Vs. Wadhwan Mahajan Panjarapol reported in 2013 LawSuit(Guj) 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 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