The First Appellate Court must comply with the provisions of Order 41 Rule 31 of the Civil Procedure Code, independently assess the evidence, and give reasons for its decision on each point independently to that of the trial Court.

JUDGMENT :

1. Present appeal is preferred by the appellants against the judgment and order dated 5.4.2005 passed by the learned 2nd Joint District Judge, Surendranagar, at Dhrangadhra, whereby the Regular Civil Appeal preferred by the appellant of Regular Civil Appeal No.16 of 2004 was dismissed and Regular Civil Appeal preferred by the appellant of Regular Civil Appeal No. 18 of 2004 was allowed and the judgment passed by the learned Civil Judge (S.D.) Dhrangadhara in Regular Civil Suit No.150 of 2002 was confirmed with the modification.

2. Heard learned Counsels appearing for the respective parties. I have perused the judgment and order passed by both the Courts below and also taken into account the material placed on record of the appeal.

3. 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.

4. 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.

5. 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.

5.1 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 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. Dioc