Geeta Negi And Others vs Ganesh Singh And Others

Sharad Kumar Sharma, J

This second appeal is being decided on a very narrow compass, while answering the substantial question of law as it has been framed by this Court while admitting the appeal on 17.07.2017, where the said issue, which was sought to be determined by this Court, was to the effect that:

"whether the lower appellate court erred in law in deciding the appeal without framing any points for determination under Order 41 Rule 31 C.P.C.".

If a judgment of the Trial Court is put to challenge in a First Appeal by invoking the provisions contained under Section 96 of Code of Civil Procedure, the proceedings before the First Appellate Court is strictly governed by the provisions contained under Order 41 of CPC. The provisions of Order 41 in itself contemplates a provision provided under Order 41 Rule 31 of CPC, which reads as under:

"41. "Contents, date and signature of Judgment"

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, and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein."

Order 41 Rule 31 provides, and rather it has been held to be mandatory in compliance in view of the judicial precedents of the Hon'ble Apex Court as reported in 2011 (4) SCC 240 'H.Siddiqui (DEAD) BY LRS. Vs. A. Ramalingam', wherein, the Hon'ble Apex Court has observed, in paragraph-20 and 21 of the said judgment, that for assessment of a judgment of the Trial Court by the First Appellate Court, which is the last court of appraisal of fact or law in a case the compliance of the provisions contained under Order 41 Rule 31 is mandatory and if that is not complied with, it would vitiate the procedure required to be followed by the Appellate Court while deciding the First Appeal against the judgment and decree of the Trial Court. If paragraph 20 and 21 as referred above is scrutinized, the Hon'ble Apex Court wherein it has held that wherever there is a non-compliance of the provisions contained under Order 41 Rule 31 of CPC, the matter is required to be remitted back to the Appellate Court for its fresh decision after complying the provisions under Order 41 Rule 31. Paragraph 20 and 21 of the said judgment are quoted hereunder:

"20. The High Court failed to realise that it was deciding the First Appeal and that it had to be decided strictly in adherence with the provisions contained in Order XLI Rule 31 of the Code of Civil Procedure, 1908 (hereinafter called CPC) and once the issue of alleged power of attorney was also raised as is evident from the point (a) formulated by the High Court, the Court should not have proceeded to point (b) without dealing with the relevant issues involved in the case, particularly, as to whether the power of attorney had been executed by the respondent in favour of his brother enabling him to alienate his share in the property.

Order XLI, Rule 31 CPC: 21. The said provisions provide guidelines for the appellate court as to how the court has to proceed and decide the case. The provisions should be read in such a way as to require that the various particulars mentioned therein should be taken into consideration. Thus, it must be evident from the judgment of the appellate court that the court has properly appreciated the facts/evidence, applied its mind and decided the case considering the material on record. It would amount to substantial compliance of the said provisions if the appellate court's judgment is based on the independent assessment of the relevant evidence on all important aspect of the matter and the findings of the appellate court are well founded and quite convincing. It is mandatory for the appellate court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final court of fact, the first appellate court must not record mere general expression of concurrence with the trial court judgment rather it must give reasons for its decision on each point independently to that of the trial court. Thus, the entire evidence must be considered and discussed in detail. Such exercise should be done after formulating the points for consideration in terms of the said provisions and the court must proceed in adherence to the requirements of the said statutory provisions. (Vide: Thakur Sukhpal Singh v. Thakur Kalyan Singh & Anr., AIR 1963 SC 146; Girijanandini Devi & Ors. v. Bijendra Narain Choudhary, AIR 1967 SC 1124; G. Amalorpavam & Ors. v. R.C. Diocese of Madurai & Ors., (2006) 3 SCC 224; Shiv Kumar Sharma v. Santosh Kumari, (2007) 8 SCC 600; and Gannmani Anasuya & Ors. v. Parvatini Amarendra Chowdhary & Ors., AIR 2007 SC 2380)"

An identical view has been earlier expressed by the judgment of the Hon'ble Apex Court reported in 2010 (13) SCC 530 'B.V. Nagesh and Another vs. H.V. Sreenivasa Murthy', wherein, the Hon'ble Apex Court has yet again reiterated the aforesaid observation making the provisions contained under Order 41 Rule 31 as to be as an obligatory procedure, which is mandatorily required to be followed by the First Appellate Court and consequently, in the said judgment too the Hon'ble Apex Court has remitted the matter to the Appellate Court for its fresh consideration. While rendering the said judgment the Hon'ble Apex Court has considered the ratio as laid down in the judgment reported in 2001 (3) SCC 179 'Santosh Hazari vs. Purushottam Tiwari(DECEASED) BY LRS.'. The reference may be had to paragraph 15 of the said judgment, which is quoted hereunder:

"15. A perusal of the judgment of the trial Court shows that it has extensively dealt with the oral and documentary evidence adduced by the parties for deciding the issues on which the parties went to trial. It also found that in support of his plea of adverse possession on the disputed land, the defendant did not produce any documentary evidence while the oral evidence adduced by the defendant was conflicting in nature and hence unworthy of reliance. The first appellate Court has, in a very cryptic manner, reversed the finding on question of possession and dispossession as alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein 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. The task of an appellate Court affirming the findings of the trial Court is an easier one. The appellate Court agreeing with the view of the trial Court need not restate the effect of the evidence or reiterate the reasons given by the trial Court; expression of general agreement with reasons given by the Court, decision of which is under appeal, would ordinarily suffice (See Girijanandini Devi & Ors. Vs. Bijendra Narain Choudhary, AIR 1967 SC 1124). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate Court for shirking the duty cast on it. While writing a judgment of reversal the appellate Court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial Court must weigh with the appellate Court, more so when the findings are based on oral evidence recorded by the same presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate Court is entitled to interfere with the finding of fact (See Madhusudan Das Vs. Smt. Narayani Bai & Ors., AIR 1983 SC 114). The rule is __ and it is nothing more than a rule of practice __ that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judges notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the finding of the trial Judge on a question of fact.(See Sarju Pershad Ramdeo Sahu Vs. Jwaleshwari Pratap Narain Singh & Ors., AIR 1951 SC 120). Secondly, while reversing a finding of fact the appellate Court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the first appellate Court had discharged the duty expected of it. We need only remind the first appellate Courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate Court continues, as before, to be a final Court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate Court is also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate Court even on questions of law unless such question of law be a substantial one."

In view of the aforesaid three prepositions as laid by the Hon'ble Apex Court and as settled by the Hon'ble Apex Court the implications which flow therefrom is that the provisions contained under Order 41 Rule 31 is mandatory in nature and it is incumbent and necessary to be complied by the First Appellate Court, that while it is scrutinizing the judgment and decree of the Trial Court under challenge before the First Appellate Court, it mandates that the Appellate Court could do it only after determining the points of controversy, which has been settled or dealt with by the Trial Court or emanating from it and that too only after formulation of the point of determination then only the First Appellate Court would proceed with the matter and answer the question as determined by it after complying the provisions contained under Order 41 Rule 31 at the time of final adjudication of the First Appeal ultimately on merits, after answering the points thus determined under Order 41 Rule 31 of C.P.C.

In the instant second appeal the appellant before this Court is a defendant in a suit being Civil Suit No. 66 of 2007 'Ganesh Singh vs. Geeta Negi and Others', which was instituted by the plaintiff/respondent for the grant of decree of permanent injunction in relation to the property, which included in it the khata khatoni No. 127, out of which the disputed property constituted to be 264 square feet, i.e. the chauhaddi of which was described in the plaint itself. The suit in question was decreed by the court of Civil Judge (J.D.) by the judgment dated 18.08.2009 in the following manner:

"वादी का वाद विरूद्ध प्रतिवादीगण स्थाई निषेधाज्ञा हेतु सव्यय आज्ञप्त किया जाता है एवं प्रतिवादीगण व उनके सर्वेन्ट, एजेन्ट विवादित भूमि जिसकी चौहद्दी वादपत्र के अंत में दी गयी है, पर निर्माण कार्य करने व कब्जा दखल करने से निषेधित किया जाता है।"

As against the grant of decree by the Trial Court, a civil appeal was preferred being Civil Appeal No. 5 of 2009 'Smt. Geeta Negi and Others vs. Ganesh Singh (since deceased represented by his heirs'. The Appellate Court by the judgment impugned dated 17.04.2013, which is impugned in the present second appeal has dismissed the first appeal and thereby had consequently affirmed the judgment of the Trial Court.

Having considered the substantial question of law as framed by the Coordinate Bench of this Court, and as to what would be the impact of the Appellate Court's judgment due to non-compliance of the provisions contained under Order 41 Rule 31, apparently if the judgment of the Appellate Court is scrutinized in the light of the argument raised by the learned counsel for the appellant Ms. Harshita Negi, she has harped upon the aforesaid judgment contending thereof that the Appellate Court's judgment itself cannot be sustained on that apparent legal lacuna itself, which is apparent from the face of the judgment.

Hence, this Court is of the view that without expressing any opinion on the merits of the matter pertaining to the veracity of the Trial and Appellate Court's judgments, which was put to challenge in the appeal, the Appellate Court's judgment dated 17.04.2013 only is quashed on that limited ground itself due to non-compliance of the provisions contained under Order 41 Rule 31 of CPC.

The matter is remitted back to the Court of Additional District Judge, Kotdwar, Pauri Garhwal, for reconsidering the First Appeal on its own merit after complying with the provisions contained under Order 41 Rule 31 of CPC. However, it is made clear that this order of remand for a fresh decision of First Appeal after complying with Order 41 Rule 31 of CPC may not be construed as if this Court has expressed any opinion on the merits of the matter. It would be exclusively open for the First Appellate Court to decide the First Appeal against the impugned judgment and decree dated 18.08.2009 on its own merit. On the revival of the proceedings of the First Appeal as a consequence of the this judgment the First Appellate Court is requested to decide the First Appeal within a period of nine months from the date of presentation of the certified copy of this order.

Subject to the above observations, the second appeal is partly succeeds.

Registry is directed to send necessary direction to the First Appellate Court for its compliance as directed above.