Sunil @ Ram Asre v. Mithai Lal and Ors

Order 41 Rule 31 CPC.

¶16The Hon'ble Supreme Court, in the case of G. Amalorpavam and others Versus R.C. Diocese of Madurai and others; (2006) 3 SCC 224, has held that 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 and where the appellate court has 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 for determination.

¶17The Hon'ble Supreme Court, in a recent judgment and order dated 10th May, 2024 in the case of Mrugendra Indravadan Mehta and others Versus Ahmadabad Municipal Corporation; (Civil Appeal Nos.16956-16957 of 2017) 2024 Live Law (SC) 369, considered the aforesaid judgment and other judgments of Hon'ble Supreme Court and held that the High Court did set out all the issues framed by the trial court in the body of the judgment and was, therefore, fully conscious of all the points that it had to consider in the appeal and no issue was left to be considered while adjudicating the appeal, therefore there is no merit in the contention that impugned judgment is liable to be set aside on this issue. The Relevant paragraphs 27 to 31 are extracted here-in-below:- "27. This being the legal position vis-à-vis the Act of 1976, it was contended before us by the plaintiffs that the impugned judgment of the High Court is liable to be set aside on the short ground that no points for determination were framed therein, as required by Order 41 Rule 31 CPC. Reliance was placed on Malluru Mallappa

(Dead) through Lrs. v. Kuruvathappa5, wherein this Court observed that the first appellate Court is required to set out the points for determination, record the decision thereon and give its own reasoning. It was further observed that, even when the said Court affirms the judgment of the Trial Court, it has to comply with the requirements of Order 41 Rule 31 CPC as non-observance thereof would lead to an infirmity in its judgment. However, it may be noted that no absolute proposition was laid down therein to the effect that failure to frame points for determination, in itself, would render the first appellate Court's judgment invalid on that ground.

¶28Reference was also made to Santosh Hazari v. Purushottam Tiwari (Deceased) by LRs6, wherein this Court held that a first appeal is a valuable right and unless restricted by law, the whole case would be open for rehearing before it, both on questions of fact and law, and, therefore, the judgment of the first appellate Court must reflect conscious application of mind and it must 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 said Court. It was further observed that, while reversing a finding of fact, the first appellate Court must come into close quarters with the reasoning of the Trial Court and then assign its own reasons for arriving at a different finding. This, per this Court, would satisfy the requirement of Order 41 Rule 31 CPC.

¶29However, in Laliteshwar Prasad Singh v. S.P. Srivastava (Dead) thru. Lrs.7, this Court, while affirming the aforestated principles, observed that it is well settled that the mere omission to frame the points for determination would not vitiate the judgment of the first appellate Court, provided that the first appellate Court recorded its reasons based on the evidence adduced by both parties.

¶30Thus, even if the first appellate Court does not separately frame the points for determination arising in the first appeal, it would not prove fatal as long as that Court deals with all the issues that actually arise for deliberation in the said appeal. Substantial compliance with the mandate of Order 41 Rule 31 CPC in that regard is sufficient. In this regard, useful reference may be made to G. Amalorpavam v. R.C. Diocese of Madurai8, wherein this Court held as under:— '9. 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 second 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 has 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.'

¶31As already noted herein-above, the High Court did set out all the issues framed by the Trial Court in the body of the judgment and was, therefore, fully conscious of all the points that it had to consider in the appeal. Further, we do not find that any particular issue that was considered by the Trial Court was left out by the High Court while adjudicating the appeal. In effect, we do not find merit in the contention that the impugned judgment is liable to be set aside on this preliminary ground, warranting reconsideration of the first appeal by the High Court afresh."

¶18Adverting to the facts of the present case, as discussed above, the whole pleadings evidence and material on record has been considered by the lower appellate court and thereafter the judgment and decree has been passed. Thus, this Court is of the view that there is no illegality or error in the impugned judgment and decree passed by the lower appellate court , which may call for any interference by this Court. The aforesaid substantial question of law formulated by this Court is answered accordingly.

¶19In view of above, this appeal has been filed on misconceived and baseless grounds, which is liable to be dismissed.

¶20The appeal is, accordingly, dismissed. No order as to costs. Order Date :- 20.11.2024/Akanksha Sri. High Court of Judicature at Allahabad, Lucknow Bench

Court No. - 4 Case :- SECOND APPEAL No. - 133 of 2020 Appellant :- Sunil @ Ram Asre Respondent :- Mithai Lal And Ors. Counsel for Appellant :- Rajesh Kumar Counsel for Respondent :- Surya Kumar Hon'ble Rajnish Kumar,J. 1. Heard, Sri Rajesh Kumar, learned counsel for the appellant and Sri Surya Kumar, learned counsel for the respondent. 2. This Second Appeal has been filed challenging the judgment and decree dated 20.02.2019 passed in Regular Suit No.534/1988;Bhojai (Dead) Mithai Lal and others versus Sunil @ Ram Asre by Civil Judge, Junior Division, Tanda, Ambedkar Nagar and judgment and decree dated 10.11.2020 passed in Civil Appeal No.27/2019;Sunil @ Ram Asre versus Mithai Lal and others by the Additional District Judge, Court No.1,Ambedkar Nagar. 3. The following substantial question of law has been formulated by this Court in this appeal:- "(i) Whether judgment passed by the first appellate court is in violation of the provision of Order XLI Rule 31 C.P.C.? If so, it's effect." 4. Learned counsel for the appellant submits that the defendant- appellant purchased the land in dispute from the plaintiff- respondent in consideration of Rs.3500/- in 1980. Thereafter he constructed four rooms on the same between April 1980 to July 1980. Subsequently, he made further construction of Kitchen, Bathroom, Toilet etc. However, on account of consolidation proceedings, the sale deed could not be got executed from the plaintiff-respondent. Thereafter the plaintiff-respondent had not executed the sale deed and filed a suit for possession. The plaintiff- respondent, in his evidence,admitted the possession of the defendant-appellant on the land in dispute and the construction made by the defendant-appellant but without considering the pleadings, evidence and material on record, the suit was decreed. Hence, the civil appeal was filed by the defendant-appellant. The lower appellate court, without considering the pleadings of the parties, evidence and material on record dismissed the appeal and confirmed the judgment and decree passed by the trial court without following the provisions of Order 41 Rule 31 of Civil Procedure Code(hereinafter referred to as C.P.C.) without formulating the points for determination and recording the reasons thereon. Thus, the judgment and decree passed by the lower appellate court is not sustainable in the eyes of law and liable to be set aside and the lower appellate court may be directed to re- consider the appeal and pass a fresh order in accordance with law. 5. Per contra, learned counsel for the plaintiff-respondent submits that the plaintiff-respondent is a poor agriculturist. The defendant- appellant,who is a doctor, had made a request to the plaintiff- respondent for opening a shop on the land in dispute for his profession, therefore the plaintiff-respondent permitted him on some portion of Gata No.77 with the condition that within 6 months he would make some alternative arrangement and shift to that place and he will vacate the said portion and hand over to him. After six months, when the plaintiff-respondent requested the defendant-appellant to vacate the premises, he had not vacated the same for a long time, therefore, the plaintiff-respondent filed suit for possession before the trial court. Before the trial court, the defendant-appellant admitted that the land in dispute is of the plaintiff-respondent and that no sale deed of the same has been executed. The learned trial court, after considering the pleadings of the parties, evidence and material on record and taking into consideration Section 54 of the Transfer of Properties Act 1882, in which the transfer of any immovable property over and above Rs.100 can be made only through a registered instrument, allowed and decreed the suit in accordance with law. The defendant- appellant had filed civil appeal before the lower appellate court. The lower appellate court also after considering the pleadings, evidence and material on record dismissed the appeal w