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2014 Supreme(All) 2039
ALLAHABAD HIGH COURT
Anil Kumar, J.
Bhoora (Dead) and others - Petitioners
Versus
Kamlesh Sharma and anr. - Respondents
Second Appeal No. 1026 of 2014
Decided On : 15-9-2014
For the Appellants :Syed Wajid Ali, Advocate
For the Respondents:Vidya Bhushan Srivastava, Advocate
The judgment of the appellate court should comply with all the requirements of Order 41 Rule 31 CPC, and substantial compliance with the provisions is sufficient if justice has not suffered.
Headnote:
Order 41 Rule 31 CPC - Appellate Procedure - 54 of the Act, insofar as relevant for the purposes of the present appeals, says that subject to the provisions of the Code of Civil Procedure, 1908, applicable to appeals from original decrees, and notwithstanding anything to the contrary in any enactment for the time being in force, an appeal shall only lie in any proceedings under this Act to the High Court from the award, or from any part of the award of the Court. Order 41 CPC deals with appeals from original decrees. Order 41, Rule 31 lays down that the judgment of the appellate court shall be in writing and shall state (a) the points for determination, (b) the decision thereon, (c) the reasons for the decision, and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. This provision has come up for consideration in innumerable occasions and its meaning and scope has been explained. It is not necessary for us to refer to various decisions but we will refer to one of the recent judgments given in G. Amalorpavam and Ors. v. R.C. Diocese of Madurai, [2006] 3 SCC 224, wherein this Court observed as under: The question whether in a particular case there has been substantial compliance with the provisions of Order 41 Rule 31 CPC has to be determined on the nature of the judgment delivered in each case. Non-compliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it and the higher appellate court is in a position to ascertain the findings of the lower appellate court. It is no doubt desirable that the appellate court should comply with all the requirements of Order 41 Rule 31 CPC. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient. Where the appellate court having considered the entire evidence on record and discussed the same in detail, come to any conclusion and its findings are supported by reasons even though the point has not been framed by the appellate court there is substantial compliance with the provisions of Order 41 Rule 31 CPC and the judgment is not in any manner vitiated by the absence of a point of determination. Where there is an honest endeavour on the part of the lower appellate court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations appearing on both sides is clearly manifest by the perusal of the judgment of the lower appellate court, it would be a valid judgment even though it does not contain the points for determination. The object of the rule in making it incumbent upon the appellate court to frame points for determination and to cite reasons for the decision is to focus attention of the court on the rival contentions which arise for determination and also to provide litigant parties opportunity in understanding the ground upon which the decision is founded with a view to enable them to know the basis of the decision and, if so considered appropriate and so advised, to avail the remedy of second appeal conferred by Section 100 CPC.
Fact of the Case:
The plaintiff-respondents filed a suit for specific performance based on a registered agreement to sale. The trial court decreed the suit for refund of the money with 18% interest, and the defendants filed appeals against the judgment and decree.
Finding of the Court:
The appellate court did not comply with the mandatory provisions of Order 41 Rule 31 CPC, which led to the setting aside of the judgment and remanding the matter to the appellate court for fresh consideration.
Issues: Non-compliance with the provisions of Order 41 Rule 31 CPC, substantial compliance with the requirements of framing points for determination and citing reasons for the decision, and the validity of the judgment despite the absence of a point of determination.
Ratio Decidendi: The judgment of the appellate court should comply with all the requirements of Order 41 Rule 31 CPC, and substantial compliance with the provisions is sufficient if justice has not suffered. The object of the rule is to focus attention on the rival contentions and provide litigant parties with the opportunity to understand the basis of the decision.
Final Decision: The second appeal is allowed, and the matter is remanded to the appellate court for fresh consideration in accordance with the law.
Anil Kumar, J.
Heard Shri Syed Wajid Ali, learned counsel for the appellant, Shri P. N. Saxena, Senior Advocate assisted by Shri Vidya Bhushan Srivastava, Advocate and perused the record.
2. Facts in brief of the present case are that initially plaintiff-respondents filed a suit for specific performance registered as Original Suit No.34 of 2007 on the ground that a registered agreement to sale dated 12.1.2004 was entered into between the deceased appellant no.1 and the plaintiffs/respondents wherein it is postulated that the plaintiffs/respondents will get the sale deed executed from vendor upto 30.5.2004. In case they failed to get the sale deed executed, the amount of earnest money would be forfeited. The said consideration was fixed for Rs.2.45 lakh, out of which, the plaintiffs/respondents had paid Rs.50,000/- to the vendor and rest of the amount was agreed to be paid at the time of execution of the sale deed. In addition to the said matter, the Suit No.67 of 2007 has also been filed by the defendants/appellants.
3. As controversy involved in both suits is based on same facts so trial court clubbed Suit Nos.34 of 2007 and 67 of 2007 heard together and decided by judgment and decree dated 30.8.2013 by which the suit of the plaintiff/respondent (Original Suit No.34 of 2007) decreed for refund of the money with 18 % from 12.1.2004 till payment and the Suit No.67 of 2007 filed by the Bhoora (now deceased) has been dismissed.
4. Thereafter, Civil Appeal No.76 of 2013 has been filed against the judgment and decree of the trial court dated 30.8.2013 passed in Original Suit No.34 of 2007 and Civil Appeal No.83 of 2013 filed challenging the judgment and decree dated 30.8.2013 passed in Suit No.67 of 2007.
5. Appellate court clubbed both the appeals and by judgment and decree dated 16.8.2014 passed by Additional District Judge, Court No.2, Rampur, allowed the Civil Appeal No.76 of 2013 and dismissed the Civil Appeal No.83 of 2013.
6. Accordingly, the defendants/appellants filed the present second appeal challenging the impugned judgment and decree dated 16.8.2014 in Civil Appeal No.76 of 2013 passed by Additional District Judge, Court No.2, Rampur arising out of the judgment and decree dated 30.8.2013 passed in Original Suit No.34 of 2007 by Additional Civil Judge (S.D.), Rampur.
7. In addition to substantial question of law which has been formulated by the defendants/appellants in the memo of appeal, the following substantial question of law is also framed as per the provisions as provided under sub-section (4) of Section 100 CPC, "whether it is not mandatory on the part of the appellate court to frame the point of determination as per the provisions as provided under Order 41 Rule 31 CPC?"
8. With the consent of learned counsel for the parties who are present today, present appeal is being heard and decided on the question of law as framed above in view of the provisions as provided under sub-section (5) of Section 100 CPC at this stage.
9. After hearing learned counsel for the appellant and going through the record, the admitted position which emerge out is to the effect that while passing the judgment and decree dated 16.8.2014, the appellate court has not framed the point of determination as provided under Order 41 Rule 31 CPC the said exercise is mandatory on the part of the appellate court as per judgment given by Hon'ble the Apex Court in the case of Union of India and another v. Ranchod and others, 2009 (27) LCD 407 has held as under:-
" Section 54 of the Act, insofar as relevant for the purposes of the present appeals, says that subject to the provisions of the Code of Civil Procedure, 1908, applicable to appeals from original decrees, and notwithstanding anything to the contrary in any enactment for the time being in force, an appeal shall only lie in any proceedings under this Act to the High Court from the award, or from any part of the award of the Court.
Order 41 CPC deals with appeals from original decrees. Order 41,
