ORDER :

1. Present Second Appeal under section 100 of the Code of Civil Procedure has been preferred by the appellants – original appellants/defendant against the judgement and decree dated 07/10/2022 passed by the learned Principal District Judge, Tapi in Regular Civil Appeal No.2 of 2018, by which the learned first appellate court dismissed the appeal confirming the judgement and decree dated 12/04/2017 passed by the learned 2nd Additional Senior Civil Judge, Vyara in Regular Civil Suit No.53 of 2013, by which the learned Civil Judge partly allowed the suit.

2. The appellate Court framed the following Issues :-

“(1) Whether the appellants establish that the order of the trial court is illegal, bad or erroneous which requires interference?

(2) What Order and decree?”

3. Heard Mr. N.V. Gandhi, learned advocate for the appellant.

4. Mr.Gandhi, learned advocate for the appellant has vehemently submitted that the learned first appellate court has not framed issues on the basis of the evidence on record on the controvery between the parties and has not recorded its own findings.

5. 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.

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.

7. 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 Anr. vs. H.V. Sreenivasa Murthy reported in (2010)13 SCC 530, in para 4 has observed and held as under:

“4. The appellate Court has jurisdiction to reverse/affirm the findings of the trial Court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case therein is open for rehearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth and pressed by the parties for decision of the appellate Court. Sitting as a Court of appeal, it was the duty of the High Court to deal with all the issues a