The main legal point established in the judgment is the mandatory compliance with the provisions of Order 41 Rule 31 of the CPC, which requires the First Appellate Court to frame points for determination and give reasons for the decision, based on an independent assessment of the evidence.

ORDER :

1. ADMIT. Ms.Megha Chitaliya, learned AGP waives service of notice of admission on behalf of the respondent No.1 and Mr.Tushar Sheth, learned advocate waives service of notice of admission on behalf of the respondent No.2.

2. Present Second Appeal under section 100 of the Code of Civil Procedure has been preferred by the appellants – original appellants/plaintiffs against the Judgement and Decree dated 12/04/2022 passed by the learned 2nd Additional District Judge, Keshod in Regular Civil Appeal No.11 of 2018, by which the learned first appellate court dismissed the appeal confirming the judgement and decree dated 05/03/2018 passed by the learned Principal Senior Civil Judge, Keshod in Regular Civil Suit No.119 of 2012 (Old RCS No.94/2014), by which the learned Civil Judge dismissed the suit.

3. The appellate Court framed the following Issues :-

“(1) Whether the appellants proves that the Judgement and Decree passed by the learned Trial Court is erroneous, illegal and the same is required to be quashed and set aside?

(2) What Order?”

3. Heard Ms.Meghna Patel, learned advocate appearing on behalf of Mr.Ashish Dagli, learned advocate for the appellants, Ms.Megha Chitalia, learned AGP for the respondent No.1 – State and Mr.Tushar Sheth, learned advocate for the respondent No.2.

4. Ms. Meghna Patel, learned advocate for the appellants has vehemently submitted that the learned first appellate court has not given its own findings and has not complied with the provisions of Order 41 Rule 31 of C.P.C., though the same is mandatory.

5. Ms.Megha Chitalia, AGP for the respondent No.1 State and Mr.Tushar Sheth, learned advocate for the respondent No.2 have submitted that the impugned order passed by the learned appellate court is just and proper and do not call for interference.

6. 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. 11. 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.

7. 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.

8. In the decision in case of Budhabhai Bhikhabhai Parmar and others vs. Shantaben WD/o Bhalabhai Becharbhai reported in 2013 (4) GLR 3595, the Court has held as under:

[4.0] Having heard Shri Adeshra, learned advocate appearing on behalf of the appellants and Shri Bukhari, learned advocate appearing on behalf of the respondent and considering the impugned judgment and order passed by the learned Appellate Court it appears to the Court that the impugned judgment and order passed by the learned Appellate Court cannot be sustained. From the impugned judgment and order passed by the learned Appellate Court it appears that the learned Appellate Court has disposed of the Appeal preferred under Order 41 of the CPC read with Section 96 in a most casual and perfunctory manner. Apart from the fact that the learned Appellate Court has not framed the points for determination as required under Order 41 Rule 31 of the CPC, it appears that even the learned Appellate Court has not exercised the powers vested in it as a first Appellate Court. Learned Appellate Court has neither re-appreciated the entire evidence on record nor has given any specific findings on the issues which were even raised before the learned trial Court. The Hon'ble Supreme Court in the case of B.V. Nagesh and A