The First Appellate Court is obligated to comply with the provisions of Order 41 Rule 31 of C.P.C. and recent pronouncements of the Hon’ble Apex Court and the High Court, and failure to do so may result in the matter being remanded back for fresh consideration.

ORDER :

1. Being aggrieved and dissatisfied with the judgment and decree dated 22.08.2012 passed by the learned 3rd Additional Senior Civil Judge, Bharuch in Regular Civil Suit No.339 of 2006 as well as the Judgment and Decree dated 26.07.2018 passed by the learned 3rd Additional District Judge, Bharuch in Regular Civil Appeal No.49 of 2012, the appellant has filed the present second appeal.

2. The brief facts leading to the present Second Appeal are as under:-

2.1 The Appellant had filed Regular Civil Suit No.339 of 2006, wherein the respondents have filed their written statement and after considering the oral as well as documentary evidence, learned 3rd Additional Senior Civil Judge, Bharuch, vide order dated 22.08.2012 dismissed the suit of the appellant. Being aggrieved by the said rejection of the suit, the appellant has approached the District Court by way of filing Regular Civil Appeal No. 49 of 2012, wherein after hearing both the parties, learned 3rd Additional District Judge, Bharuch has dismissed the said appeal.

Hence, being aggrieved and dissatisfied with the aforesaid orders, the appellant has approached this Court by way of filing present Second Appeal.

3. Heard learned advocate appearing for both the parties and perused the judgment and order passed by both the Courts below and also taken into account the material placed on record of the appeal.

4. Considering the above facts the First Appellate Court has to apply its mind independently and frame the issues appropriately and independently. The provisions of Order 41 of C.P.C. provides that how the 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 C.P.C.

5. In the recent judgment of the Hon’ble Apex Court in case of K. Karuppuraj vs M. Ganesan reported in 2021 (10) SCC 777, the Hon’ble Apex Court has held that while deciding the First Appeal, compliance of Order 41 Rule 31 of C.P.C. is mandatory.

6. In the recent judgment of the Hon’ble Apex Court in case of K. Karuppuraj (supra) and Judgments of this Court, which are referred hereinafter, time and again reiterated by this Court and Hon’ble Apex Court that how and in which manner the First Appellate Court has to decide the Appeal under Section 96 of the Code.

6.1 In the decision in case of Lakhu Karman Bharwad vs. State of Gujarat reported in 2015 LawSuit(Guj) 855, the Court has held as under:

“10. 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 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 Courts 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 th