Mandatory compliance of Order 41 Rule 31 of the Civil Procedure Code and the requirement for the First Appellate Court to independently assess the evidence and decide the appeal after framing points for determination.

ORDER :

1. Being aggrieved and dissatisfied by the impugned judgment and order dated 01.10.2016 passed by the learned 5th Additional District Judge, Gandhidham, Kachchh in Regular Civil Appeal No.04 of 2013, the appellant has preferred the present second appeal.

2. On 07.06.2022, this Court passed the following order :

The notice on respondent has been served by the publication in news papers as per the affidavit, though notice has been served upon the publication in news paper, none is present for the respondent. The matter to be proceeded ex-parte against the respondents. Stand over to 05.07.2022.

3. Learned counsel appearing for the appellant has submitted that the First Appellate Court has not properly determined the substantial questions of law and, therefore, the appeal deserves to be allowed.

4. Considering the facts of the case and materials place 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.

5. 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 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. 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; a