Shri Bernard B. Gomes Alias Peter G. Gomes and Others vs Smt. Prescilla Lopes E. Fernandes and Others

R.M.S. Khandeparkar, J.—Though this Second Appeal was admitted on various substantial questions of law disclosed in the Memo of Appeal alongwith one regarding non-framing of points for determination by the lower Appellate Court while deciding the appeal, the appeal can be disposed of only on the said substantial question of law regarding non-framing of points for determination by the lower Appellate Court while disposing the appeal.

The facts in brief are that the respondents herein filed suit for declaration, injunction and restoration in respect of the property bearing Survey Nos. 9/3 and 9/4 of the village of Raia, Salcete, Goa. The Trial Court decreed the suit by Judgment and Decree dated 10th December, 1992. Being aggrieved, the appellants preferred Regular Civil Appeal No. 11/93 in the Courts of the District and Sessions Judge, South Goa, Margao, which was heard and disposed of by the Additional District Judge at Margao by his Judgment and Order dated 19th October, 1994.

Shri A.F. Diniz, the learned Advocate appearing for the appellants, while assailing the impugned Order, submitted that the lower Appellate Court had not framed the points for determination while disposing the appeal and the impugned Judgment ex facie clearly discloses the violation of the mandate of Rule 31 of Order XLI of the Civil Procedure Code. In support of his contention he placed reliance on the Judgment of learned Single Judge of this Court In the matter of Anita M. Harretto Vs. Abdul Wahid Sanaullah, .

Shri Section Padiyar, the learned Advocate appearing for the respondents, on the other hand, submitted that though the lower Appellate Court has not specifically formulated the points for determination, the perusal of the Judgment of the lower Appellate Court discloses that the lower Appellate Court had applied its mind to the points which were required to be considered and, accordingly, has considered all the points which were raised by the appellants in the Memo of Appeal and in that view of the matter, it cannot be said that the lower Appellate Court has violated the mandate of Rule 31 of Order XLI of the Civil Procedure Code.

The Rule 31 of Order XLI of the CPC reads thus:

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.

On a plain reading of the said Rule, it is clear that the Judgment of the lower Appellate Court should necessarily disclose the points for determination and the decision on such points as well as the reasons for such decision. In other words, before arriving at a decision in an appeal, the Appellate Court has to find out what are the points for determination involved in the matter and thereupon proceed to decide the same and substantiate the same by giving reasons for the same. In this regard, as rightly submitted by the learned Advocate for the appellants, the learned Single Judge of this Court in the matter of Smt Anita M. Harretto v. Abdul Wahid Sanaullah (supra) has already held that when the procedural law of the land insists upon certain requirement to be complied with one has to understand the object and scope of the provision. The learned Single Judge has further held therein that merely asking the question as to whether the Judgment of the Court below is correct, legal or valid is hopelessly an inadequate method of meeting the requirement of the legal provision contained in Order XLI, Rule 31 of the Civil Procedure Code.

The perusal of the impugned Judgment discloses that the lower Appellate Court has merely referred to the contents of the Memo of Appeal and further has held that he agrees with the arguments advanced by the Advocate for the respondents in their written arguments and, therefore, he has refused to interfere with the Judgment and Decree passed by the Trial Court. On plain reading of the entire Judgment, it nowhere discloses that the lower Appellate Court had taken pains to apply its mind as regards the points to be determined in the matter before delivering the Judgment dismissing the said appeal. In this view of the matter, therefore, there is a clear violation of the mandate of Rule 31, Order XLI of the CPC and, therefore, the substantial question of law in that regard is to be answered in the affirmative and the impugned Judgment is liable to be quashed and set aside. The impugned Judgment being liable to be quashed and set aside on the ground that the lower Appellate Court has failed to formulate the points for determination before deciding the matter, it is also necessary to remand the matter to the lower Appellate Court for formulating the points for determination and for decision thereon after hearing the parties.

In the result, the appeal succeeds on the limited point stated above and the impugned Judgment is quashed and set aside and the matter is remanded to the lower Appellate Court with a direction to dispose of the same after hearing the parties and on complying with the requirement of Order XLI, Rule 31 of the Civil Procedure Code. Needless to say that the lower Appellate Court will dispose of the matter expeditiously considering the fact that the suit relates to the year 1981 and the appeal relates to the year 1993. There shall be no order as to costs. Meanwhile the execution of the Judgment and Decree passed by the Trial Court shall remain suspended till 4 weeks after the disposal of the appeal by the lower Appellate Court.