Remanded

Buga Mavanji Burburde Decd.Th.L.H.and Ors. v. Bansi Punja Palve

Bombay HC15 Dec 2004SA/1035/2004

Case brief

AI extract

What is this about?

In an appeal, the High Court of Bombay held that a single vague point for determination infringes Order 41 Rule 31 CPC. The court found the lower appellate judgment illegal as it did not reflect proper application of mind or address pleaded issues, remanding the matter to frame points.

What did the court decide?

Impugned order dated 21.11.2001 set aside; matter remanded to District Judge, Nasik to frame proper points for determination and record findings within three months.

Buga Mavanji Burburde Decd.Th.L.H.and Ors. Vs Bansi Punja… — Property and Title | Bombay HC (2004)

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	IN	THE	HIGH	COUR	T OF JU	DICATURE AT	BOMBAY
				APPELLA	TE		SIDE
		SEC	OND	APP	EAL NO.	1035 OF	2004
Buga (since 1. Ganguba	i Buga B	deceased, urburde &	ors.	M by	avanji his	legal ... Appellants	Burburde heirs)
V/s
Bansi Punja	Palve					... Respondent
Mr.	P.		K.		Dhakephalkar	for the	appellants.
Mr.		P.S.			Dani for	the	respondent.
					CORAM: DATED:	P.V. KAKADE, J. 15TH DEC., 2004
P.C.:
1.	This	is	an	ap	peal preferred	by the	appellants
defendants		against	the	judg	ment and	order passed	by the
Addl.		District		Judge,	Nasik,	dated	21.11.2001
dismissing		the	appeal	but	modifying	the order pa	ssed by
the	Trial	Court	to	the	effect that	the plaintiff	would
be	entitled	fo	r	possessi	on of the	suit property	and
accordingly		plaintiff’	s	suit	came to	be decreed	with
costs.		With	this	modifi	cation the	appeal was	disposed
of.	The	lower	Cour	t ha	d decreed	the suit with	direction
that	the	defe	ndant	wa	s perpetual	ly restrained	from
creating		obstructi	on	in	the	peaceful	possession,

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enjoyment and cultivation by the plaintiff over the suit

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property.

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I have heard the learned counsel for both parties.

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Perused the record.

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3.	In	the	cours	e of	hearing	of	the appeal, i	t was
brought		to	my	notice	that	the	lower appellate	Court
framed	the	issue	thus	- W	hether	the	decree passed	by the
Trial		Court	requires	any		inter	ference ?	Taking
exception		to	this	aspect,	the	lea	rned counsel for	the
appellant		vehem	ently	urged	that		it was	apparent
illegality		and	contra	vention	of	the	provisions of	Order

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41 Rule 31 of the Civil Procedure Code, which reads as under :-

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Contents, date, signature of judgment.:- The

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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

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or varied, the relief to which the

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appellant is entitled.

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Therefore, pointing out	the	point	framed for determ	ination
by the lower app	ellate Cou	rt,	it was submitted that	the
point for determinati	on was	not	reflective of the	fact
whether the learned	lower	Appe	llate Court has in	fact
appreciated the entire	evidence	on	record in the light	of
issues framed by the	lower	Court	or not. In support	of
this submission, my	attention	was	drawn to two rulings	of
this Court. In the	case of	Smt	. Anita M. Barreto	v/s
Abdul Wahid Sanaullah,	reported	in	A.I.R. 1985 Bom.	98,
the Single Judge of	this Cour	t h	as observed that, Order	41
Rule 31 deals with the	judgment	o	f the Appeal Court an	d it
says amongst other	things	that	the judgment shall	state
the points for deter	mination.		When a requirement such	as
this is insisted upon	by the	pr	ocedural law of the	land,
one must try to	understand	the	object and scope of	this
provision. If such	practice	is	adhered to it amounts	to
excluding provision of	Order	41	Rule 31(a) because	asking
such vague questions	as me	ntioned	above will not led	to

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the pronouncement of a well considered and reasoned

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judgment.

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Similarly,	in	another	ruling	of	this	Court	in	the ca	se of
Janardan	Nago	Patil	v/s	Rama	nand	Ramdas	Mish	ra,	reported
in 2003	(4)	Mah.	L.	J.	853,	it is	observe	d that	the
first a	ppellate	Court	is	final	Court	of	facts	and	must
frame	proper	points	for	determ	ination	but,	only	framed	a

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single point as to whether the trial Court had rightly dismissed the suit, it was against the procedural law and held that such order deserves to be set aside and the matter was remanded with direction to frame proper points

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for determination and record its findings on each of the

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points urged before it.

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4.	At thi	s ju	ncture,	I	would	like	to	n	ote that	, in
another	appeal		wherein	sim	ilar sit	uation		a	rose	(Second
Appeal	No.	1134	of	2004	decided	by	th	is C	ourt on	1st
December,	2004),	I	have	h	eld	that		raisi	ng of	such
ambiguous	issue	wo	uld	be	at the	m	ost		irregularity	and
would	not a	mount	to	illeg	ality	contra	veni	ng	the	provisions
of	Order 41	Rule	31 of	C.	P.C.	That	fi	nding	was	recorded
due	to the	facts	and	ci	rcumstances	i	nvol	ved	in that	case.
In	that ca	se, no	prejudic	e	was cau	sed	to	eithe	r of	the
parties	because	the	body	o	f the	judgm	ent	of	the	lower
appellate	Court	was	clear	e	nough to	sh	ow	how	each	and
every	issue	involved	in	that	dispute	wa	s	dealt	with	and,
therefore,	the	ap	plication	of	mind	of	t	he	learned	Judge

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was apparent from the contents of the judgment. However,

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this is not the case in the present appeal.

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Therefore, in my considered view, the ratios in both the rulings are squarely applicable to the present case for more than one reason. Perusal of the body of the

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judgment		also	sho	ws	that	the	judgment	doe	s	not	reflect
proper	a	pplication	o	f m	ind	of	the lo	wer	appe	llate	Court.
It is		also	clear	ly	seen	that	the	i	ssues	raised	and
appreciated		and	adju	dicated	by	t	he lower		Court	are	not at
all	taken	into	acc	ount	by	the	lower	App	ellate	Court,	but
he	has	dealt	with	in	detail	s	those issu	es	which	were	not
in	dispute	in	the	lower	Cour	t	and nor	wer	e rai	sed in	the
appeal		memo	and,	th	erefore,		in short,		the	lower	appellate
Court	jud	gment	a	ppears	to	be	illegal	and,		therefore,	I

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have no option but to remand the matter to the lower

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appellate Judge, with certain directions.

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District Judge, Nasik dated 21.11.2001 is hereby set

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aside.

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The m	atter i	s remanded	to th	e low	er	Appellate	Court	with
direction	that	it	shall	frame		proper	points	for
determination	and	record	its	findings	on	each	of	the
issues	urged	before it	involved	in	the	dispute	and	taken
up in	the	pleadings.	The	appeal	to	be	adjudicated	within

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three months from the date of receipt of writ of this

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Court.

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With these directions, the appeal stands disposed of.

Buga Mavanji Burburde Decd.Th.L.H.and Ors. v. Bansi Punja Palve

Case brief

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What did the court decide?

Buga Mavanji Burburde Decd.Th.L.H.and Ors. v. Bansi Punja Palve

Case brief

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