The First Appellate Court must comply with the provisions of Order 41 Rule 31 of the C.P.C, independently assess the evidence, and give reasons for its decision on each point independently.

ORDER :

1. This Court had directed the parties to go before the High Court Mediation Centre vide order dated 13.09.2022 and the Mediation Centre has placed the report dated 27.09.2022 on record, wherein the mediation attempt has failed and it has been unsuccessful. Therefore, the present Second Appeal is considered today.

2. Being aggrieved and dissatisfied with the judgment and order dated 08.08.2016 passed by the learned 2nd Additional Senior Civil Judge & C.J.M., Palanpur in Hindu Marriage Petition No.17 of 2012 as well as the judgment and order dated 27.02.2020 passed by the learned Principal District Judge, Banaskantha in Regular Civil Appeal No.22 of 2016, the appellant has filed the present second appeal.

3. Heard Mr.Jamshed Kavina assisted by Mr.P.P. Majmudar, the learned counsels appearing for the appellant and Ms.Dilbur Contractor, the learned counsel appearing for the respondent 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 fact 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 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