Mandatory compliance with Order 41 Rule 31 of the CPC in deciding the first appeal.

ORDER :

1. The appellant is the original defendant whereas the respondent is the original plaintiff. The plaintiff filed Regular Civil Suit No.17 of 2019 against the defendant before the Civil Court. As per the case of the plaintiff, the plaintiff and the defendant are family relation and before the suit transaction, the defendant had borrowed money as a loan from the plaintiff for 3 to 4 times and that time, the defendant had repaid such loan amount.

2. It is the case of the plaintiff that on 10/1/2008 the defendant requested to the plaintiff to have Rs.1,80,000/- as a loan and therefore, plaintiff advanced such amount and for that the defendant has drawn promissory note in favour of the plaintiff.

3. It is also the case of the plaintiff that when the time had ripen for the amount, the plaintiff demanded such amount and at that time the defendant had made promise but since the defendant had not paid the amount and therefore on 23/5/2008, the plaintiff served legal notice through lawyer for demanding the amount for which promissory note is drawn and upon receiving vague reply on 3/6/2018, the plaintiff filed the Civil Suit to the effect that the defendant shall be directed to repay Rs.1,80,000/- with interest to the plaintiff.

4. Upon service of the notice, the defendant filed Written Statement at Ex.31 and objected the prayer made in the suit. The plaintiff has examined witnesses. Prior to that the trial court framed the following issues at Ex.7:

“1. Whether the plaintiff proves that the defendant has executed promissory note in favour of the plaintiff in lieu of a loan of Rs.1,80,000/-?

2. Whether the plaintiff proves that the defendant has paid amount of Rs.1,80,000?

3. Whether the plaintiff proves that the plaintiff is entitled to Rs.1,80,000/- from the defendant?

4. Whether the plaintiff proves that he is entitled for interest upon the outstanding amount?

5. Whether the plaintiff is entitled for the reliefs, as prayed for?

6. What Judgement and decree?.”

5. The learned Judge has answered Issue Nos.1 to 5 in affirmative and answered issue No.6 as per final order.

6. Considering the evidence on record and hearing the parties, the learned trial court decreed the suit in favour of the plaintiff.

7. Against the aforesaid judgement and decree, the defendant filed Regular Civil Suit No.41 of 2018 before the District Court and the learned 2nd Additional District Judge, Deesa, District Banaskantha, framed the issues for determination, as under :-

“1. Whether the judgement and decree of Regular Civil Suit No.17 of 2009 dated 11/2/2015, which is in question is arbitrary, capricious, perverse and illegal and the judgement and decree require to be interfered with?

2. What order?”

8. Heard Mr.V.C. Mehta, learned advocate for the appellant. He has mainly raised contention that provisions of Order 41 Rule 31 has not been followed by the first appellate court. It is submitted that the contentions raised in the written statement by the plaintiff before the trial court are not taken into consideration and no issue to that effect which can be proved by the defendant, have been raised. It was the case of the defendant that as the relation between the plaintiff and defendant were cordial, the plaintiff and the defendant had purchased a Tractor jointly in which down payment installment of the Tractor and expenses towards the Tractor was to be born by the plaintiff and the defendant in the ratio of 50:50 and documents to that effect was also executed. It is submitted that the socalled promissory note has been concocted and it was not regarding any loan advanced by the plaintiff. All the these defences of the defendant have not been taken into consideration and no issue to that effect has been framed. It is submitted that the provisions of Order 41 Rule 31 provides how the appellate court has to deal with the appeal preferred under section 96 of the Code of Civil Procedure and what is the procedure to be followed by the first appellate court. It i