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GUJARAT HIGH COURT
A.J.DESAI, J
NAGJIBHAI SAVABHAI – Appellant
Versus
SARABHAI BHAGVANBHAI – Respondent
SECOND APPEAL NO. 260 of 2012
For the Appellants/Petitioners: MR PRADEEP PATEL
For the Respondents: MR KIRTIDEV R DAVE, MR RAHUL K DAVE
Appellate courts must adhere to procedural norms by framing issues and providing clear determinations; failure leads to quashing of judgments.
Headnote:(A) Code of Civil Procedure, 1908 - Section 100 and Order 41 - Appellate Court's obligations - The lower Appellate Court did not frame points for determination or adhere to guidelines governing its decisions. The court's judgment was quashed and the case remanded for proper adjudication with compliance to procedural requirements. (Paras 14, 15)
(B) Apellate Procedure - It is essential for an Appellate Court to independently assess evidence and provide specific grounds for its decisions. Formalities outlined in the Code of Civil Procedure and Bombay Civil Manual are to be strictly followed. (Paras 8, 10, 12)
Facts of the case:
The appellants challenged the orders granting permanent injunction in favor of the respondent, alleging procedural irregularities in the lower Appellate Court.
Findings of Court:
The lower Appellate Court's failure to comply with procedural norms warranted a remand.
Issues: The key issues included adherence to the judicial protocol and the necessity to frame points for determination.
Ratio Decidendi: The court concluded that non-compliance with procedural requirements by the Appellate Court rendered its decision invalid, necessitating fresh consideration of the appeal.
Result: The present Second Appeal succeeds; the impugned judgment is quashed and remanded for fresh hearings.
| Table of Content |
|---|
| 1. appeal challenges regarding procedural adherence. (Para 3 , 5) |
| 2. appellants argue lower court's failures. (Para 6) |
| 3. court outlines appellate court compliance. (Para 8 , 9 , 10) |
| 4. court's rationale for remanding the case. (Para 14) |
| 5. final ruling quashes prior judgment, case remanded. (Para 15) |
JUDGEMENT
1. Heard learned advocates for the parties. Admit.
2. Mr. Kirtidev R. Dave, learned advocate appearing for the respondent waives service of notice of admission. With the consent of the parties, the matter is taken up for final hearing with regard to the judgement and order passed by the learned Additional District Judge being the appellate Court, which is contrary to the provisions of Order – 41 Rule – 31 as well as the provisions of Bombay Civil Manual.
3. By way of the present Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the Code”), the appellants - original defendants have challenged the judgement and order dated 13.4.2012 passed by the Additional District Judge, Surendranagar, in Regular Civil Appeal No. 10 of 2008, by which, the appeal preferred by the present appellants – defendants for permanent injunction restraining the appellants – defendants from entering on the suit land, came to be confirmed, the judgement and order dated 23.1.2008 passed by the Principal Civil Judge, Lakhtar in Civil Suit No. 7 of 1997, which was decreed in favour of the respondent – original plaintiff.
4. That the civil suit was filed by the two plaintiffs. During the pendency of the suit, one of the two died, however, the survival plaintiff persuaded the suit as well defended the appeal also.
5. The brief facts emerges from the record of the case are as under:
5.1 That the respondent – original plaintiff filed Civil Suit No. 7 of 1997 in the Court of Principal Civil Judge, Lakhtar and prayed for decree of permanent injunction with regard to the immovable property situated at village Chharad, Taluka Lakhtar. It was contended by the plaintiff that the suit property belongs to him since the revenue record establishes that the plaintiff was the owner of the suit premises, and since, the defendants were illegally trying to enter on the suit premises, the above referred suit was filed. The suit was resisted by the present petitioners by way of filing the written statement at Exh. 34. The allegations levelled against the defendants were denied. After considering the pleadings, learned Trial Court framed four issues at Exh. 43. The parties examined their witnesses and proved certain documents produced on record of the case. After considering the deposition of witnesses and the documents proved by the concerned parties, the case of the plaintiff was accepted and the suit was decreed by the judgement and order dated 23.01.2008.
5.2 Being aggrieved and dissatisfied with the judgement and order dated 23.01.2008 passed by the learned Principal Civil Judge, Lakhtar in Civil Suit No. 7 of 1997, by which, the permanent injunction was granted, the present appellants filed Regular Civil Appeal No. 10 of 2008 in the Court of learned Additional District Judge, Surendranagar. After considering the case on record, learned Additional District Judge, Surendranagar dismissed the appeal by way of judgement and order dated 13.04.2012 and confirmed the judgement and order dated passed by the Trial Court. Hence, the present petition.
6. Mr. Pradeep Patel, learned advocate, appearing for the Appellants has raised the contention with regard to the manner, in which, the lower Appellate Court has disposed of the appeal by writing a judgment contrary to the provisions of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code for short) as well as the Bombay Civil Manual. He submitted that the lower Appellate Court has not framed any point for determination in accordance with Order 41 Rules 11, 14, 15 and 31 of t
