S.M. Ponnaiah Nadar and Sons and 6 others vs R.C. Diocese of Madurai

1.The present second appeal has been filed by the defendants 1 to 3 in the suit as against the judgment and decree dated 24.4.93 made in

A.S.No.2 of 1993 on the file of Sub Court, Periakulam confirming the judgment and decree dated 18.3.82 made in O.S.No.597 of 1982 on the

file of district Munsif Court, Periakulam. The respondent in the second appeal filed the suit for possession of the suit property as well as the

recovery of arrears of rent and damages. The learned District Munsif, Periakulam, on consideration of the facts decreed the suit. Aggrieved by the

said judgment and decree, the appellants herein preferred an appeal before the Sub Court, Periakulam. The learned Sub Judge also confirmed the

findings of the learned District Munsif and dismissed the appeal. Aggrieved by the judgments and decrees, the present second appeal has been

filed by the defendants 1 to 3.

When this second appeal came up for admission, Mr.P.Peppin Fernando representing the respondent took notice and the second appeal itself

was directed to be posted for final hearing. Accordingly, when this matter was taken up for final hearing on 10.8.2000, Mr.S.V.Jayaraman,

learned senior counsel appearing for the appellants would restrict his argument only with reference to the substantial question of law namely

whether the lower appellate Court is correct in deciding the appeal without any points for determination as contemplated under Order 41, Rule 31

of C.P.C."" The'' learned counsel for the appellants drew my attention to the judgment and decree of the learned Sub Judge, Periakulam, more

particularly to paragraph 9 which states as follows:-

The learned senior counsel submitted that all that the appellate Court has stated is whether the appeal has to be allowed or not. Therefore, as per

Order 41, Rule 31, the learned Judge ought to have framed the points for determination. However, on a persual of the judgment. It is evident that

the learned Judge has not stated the points for determination. The learned senior counsel submitted that Order 41, Rule 31 is mandatory and strict

compliance is necessary and therefore, failure of appellate Court to conform to Order 41, Rule 31 renders the Judgment as no judgment in law.

Therefore, the learned senior counsel submitted that the judgment and decree of the appellate Court are liable to be set aside. In support of the

above submission, the learned senior counsel cited the following judgments:-

(1) Munivel Vs. Munusamy Mudaliar and Others, . (2) K.M.M. Kadar Hussain Vs. O.M.R. Selvaraj and Others, (3) Palanisami Pillai v. The

Commissioner, Hindu Religious & Charitable Endowments (admn) Department, Madras and another, 1997 (1) LW 704

In repudiating the above submissions,Mr.P.PeppinFernando, learned counsel appearing for the respondent would submit that when there has

been a substantial compliance with the provisions of Order 41 Rule 31a non-compliance with the strict provisions the said rule will not vitiate the

judgment and make it wholly void. In the present case, even though the learned Sub Judge. Periakulam has not stated specifically the points for

determination, has gone into the question of all the issues that were framed before the learned District Munsif and after going into the evidence and

appreciating the same has come to an independent conclusion of his own after elaborate discussion. In such event, it should be construed that the

learned Sub Judge has substantially complied with the provisions of Order 41, Rule 31 of C.P.C. and therefore, the judgment cannot be said to be

void. In support of the above submissions, the learned counsel relied upon the following judgments;-

(1) MygapulaGanganna and others v. Sri Rajah Uppalapati Venkata Vijaya Goparaju Garu Bafhiyat Bashand, MLJ 31 870; (2) Durga Thathera

Vs. Narain Thathera and Another, ; (3) Haladhar Sarma v. Assam Go-Seva Samity, AIR 1979 Gau 23; (4) Assistant Commissioner, Tumkur and

Others Vs. K.N. Nagaraja, ; (5) Nachimuthu Vs. The State of Tamil Nadu, by the Collector of Salem and Another, ; (6) Sivaprakasam Mudaliar

Vs. Selvaraj Padayachi and Others, ; (7) Bhagirathi Dhondu Lingawade and others v. Shree Laxmi Silk Mills, 1994 (1) CCC 83.

I have given my due consideration to the rival submissions made on behalf of the respective counsel. Even though two substantial questions of

law were framed, the learned senior counsel for the appellants would restrict his argument only in respect of the non-compliance of Order 41, Rule

31 of C.P.C. The learned senior counsel does not also go into the merits of the case as to whether the Sub Judge, Periakulam has considered the

evidence let in on behalf of both sides and have given finding to come to a conclusion. Therefore, the only point that arises for consideration is

whether non-compliance of Order 41, Rule 31 of C.P.C. by the lower appellate Court would vitiate the judgment of the appellate Court. The

judgment cited by the learned counsel for the appellants reported in K.M.M. Kadar Hussain Vs. O.M.R. Selvaraj and Others, , has been

rendered on the basis of the submissions the learned senior counsel appeared for the appellant therein by conceding that the judgment of the

learned Single Judge of the High Court was not on the right lines and directions and also does not satisfy the provisions of Order 41, Rule 31 of

C.P.C. which stipulates that the Judgment of appellate Court shall be in writing and shall study the points for determination, the decision thereon

and the reasons for the decision. The Bench also considered the earlier judgment reported in Kannammal Vs. Kuppanna Gounder, and also 1989

(2) LW 414. In the said judgments the point that was mainly considered was, as to whether, in the event of non-compliance of Order 41 Rule 31,

the matter could be remanded for fresh hearing. The Bench had also taken note of the Judgment reported in Palanisami Pillai v. The Commissioner,

Hindu Religious & Charitable Endowments (admn) Department, Madras and another, 1997 (1) LW 704 which also hold that compliance of Order

41 Rule 31 of C.P.C. was mandatory. However, it would be relevant to note the reasons for such conclusion by the Bench which are as Follows:-

The learned single Judge when he reversed the judgment, there should be enough material to show that the Court of appeal has considered it fully

and formed its own opinion. In the present judgment, there is no discussion at all about, the documentary evidence filed and marked as Exs.A-I to

A-33. The law imposes upon the court of appeal the imperative duty and obligation of giving an adequate and satisfactory judgment such as is

required by law and it is the duty to explain its reasons for so doing more especially when the court of first instance has gone so fully into the facts

and the reasons for the conclusions arrived at.

From the above passage, it would be clear that the Division Bench has proceeded to hold that Order 41, Rule 31 of C.P.C. was mandatory in the

absence of any discussion on evidence especially when the appellate Court reverses the judgment of the lower Court. However, a series of

judgments relied upon by the learned counsel for the respondent would indicate that the non-compliance of Order 41, Rule 31 will not make the

judgment wholly void if there is substantial compliance. In this connection it would be appropriate to refer to the judgment reported in

MygapulaGanganna and others v. Sri Rajah Uppalapati Venkata Vijaya Goparaju Garu Bafhiyat Bashand, 31 M.L.J. 870 which has held that the

non-compliance of Order 41 Rule 31 wilt not make the judgment wholly void if there is a substantial compliance of the provisions and observed

thus:-

That however, is only an irregularity or error in procedure; and unless it is a substantial error which has affected the decision of the case on the

merits, it is not a proper ground for second appeal under S. 100 of the Civil Procedure Code. Unless, therefore, we are satisfied that the learned

District Judge failed to apply his mind to the case and to consider the evidence properly or that the appellants have been prejudiced in any way on

the merits we wilt not be justified in interfering with the decree of the Lower Appellate Court on the ground stated.

The judgment reported in Durga Thathera Vs. Narain Thathera and Another, has also held that the non-compliance of Order 41. Rule 31 may not

vitiate the judgment and observed thus:-

The question whether in a particular case there has been a substantial compliance with the provisions of R.31 is a different one depending on the

nature of the judgment delivered in each case. A non-compliance with the strict provisions of this rule may not vitiate the judgment and make it

wholly void, and the irregularity may be ignored if there has been a substantial compliance with it and the second appellate Court is in a position to

ascertain the findings of the lower appellate Court."" In the judgment reported in Haladhar Sarma v. Assam Go-Seva Samity AIR 1979 Gau. 23,

the learned single Judge has observed as follows:-

It is true that the learned lower appellate Court has not mentioned the above points in a tabular -form but on a perusal of its judgment it appears

that the points for determination were before it and that the reasons for its findings were given.

In the judgment reported in Assistant Commissioner, Tumkur and Others Vs. K.N. Nagaraja, , the learned single Judge has observed thus:-

It is no doubt desirable that the first appellate Court complies with all the requirements of that Rule, but if it is possible to make out from the very

Judgment that that they have substantially complied with the said requirements and that justice has not thereby suffered, that would be sufficient.

In the judgment reported in Nachimuthu Vs. The State of Tamil Nadu, by the Collector of Salem and Another, , the learned single Judge of this

Court has observed thus:-

An honest endeavour on the part of the lower appellate Court towards the consideration of the controversy between the parties and a proper

appraisement of their respective cases and the weighing and balancing of the evidence, facts and the other considerations appearing on both sides

is clearly manifested by the perusal of the judgment of the lower appellate Court. In that sense, it would nevertheless be a valid judgment, thought it

does not contain the points for determination.

In the judgment reported in Sivaprakasam Mudaliar Vs. Selvaraj Padayachi and Others, , the learned single Judge of this Court has observed

thus:-

Though a point has not been framed by the appellate Judge, he has considered the entire evidence on record and discussed the same in detail and

ultimately came to the conclusion. His findings are supported by his reasons. Hence, 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.

In the judgment reported in Bhagirathi Dhondu Lingawade and others v. Shree Laxmi Silk Mills, 1994 (1) CCC 83, the learned single Judge of

Bombay High Court observed thus in paragraph 7:-

In my view, it does appear that the Appeal Court has discussed entire evidence on the issues that were framed by the Trial Court and there has

been no failure of justice in the facts of the case so as to warrant intervention under Article 227 of the Constitution in the face of a concurrent

finding. As stated earlier, the said findings are based on an appreciation of evidence on record and hence, I find no reason to interfere with the

same, writ petition is rejected.

It would be also relevant to refer to the judgment of the Supreme Court reported in Girja Nandini Devi and Others Vs. Bijendra Narain

Choudhury, wherein the Bench observed thus:-

It is not the duty of the appellate Court when it agrees with the view of the Trial Court on the evidence either to restate the effect of the evidence

or to 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.

On a perusal of the above judgments, it would be clear that when there is a substantial compliance of Order 41, Rule 31 of C.P.C. by the

appellate Court while confirming the judgment and decree of the lower Court, merely because the lower appellate Court has not stated any points

for determination, the judgment rendered thereon shall not become void. In the present case, it is not in dispute while confirming the judgment and

decree of the learned District Munsif, Periakulam, the learned Sub Judge, Periakulam has independently"" considered the evidence and has given

different findings on the issues framed by the lower Court and on the basis of the same arguments were advanced before the appellate Court. In

view of the said detailed discussion giving reasons for confirming the order of the learned District Munsif, Periakulam, merely because the appellate

Court has not stated the points for determination cannot be held to be bad in the eye of law as the same shall be considered as substantial

compliance of Order 41 Rule 31 of C.P.C. I do not find any merit in the submission of the learned senior counsel appearing for the appellants

warranting any interference by this Court. In that view of the matter, I do not find any substantial question of law to interfere with the judgments,

and decrees of both the Courts below. Accordingly, this second appeal is dismissed. No costs. Consequently, C.M.P.No.8275 of 2000 is closed.