Remanded

Annaso Shiva Vani v. 1. Keshav Tukaram Nikam Dece. T.H.L.H.

Bombay HC24 Oct 2013SA/320/2013

Case brief

AI extract

What is this about?

The High Court allowed the second appeal, quashing the first appellate judgment that reversed the trial court's findings without framing necessary points under Order XLI Rule 31 CPC. The matter was remanded to the first appellate court for a fresh adjudication on merits within three months.

What did the court decide?

Regular Civil Appeal No.15 of 2007 quashed and restored; remanded to first appellate court for fresh adjudication within three months.

Annaso Shiva Vani Vs 1. Keshav Tukaram Nikam Dece… — Specific Performance | Bombay HC (2013)

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320.13-sa

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION

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SECOND APPEAL NO.320 OF 2013 WITH CIVIL APPLICATION NO.868 OF 2013 IN

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SECOND APPEAL NO.320 OF 2013

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Annaso Shiva Vani V/s. Keshav Tukaram Nikam & Ors.

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...Appellant

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...Respondents

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Mr. Surel S. Shah for the appellant.

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Mr. Vijay Killedar for respondent Nos.1A to 1C and 1E.

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CORAM: S.S. SHINDE, J. DATED : OCTOBER 24, 2013

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P.C. :

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The second appeal takes exception to the judgment and order passed by the District Judge, Jaisingpur in Regular Civil Appeal No.15 of 2007 decided on 11^th February 2013.

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The learned counsel for the appellant submits that the first appellate court, without framing necessary points for determination, proceeded to decide the first appeal thereby reversing the finding of facts recorded by the trial court. It is submitted that in absence of framing of points necessary for adjudication of the appeal, it was impermissible for the first appellate court to decide the appeal only on two points which are also general in nature. The learned counsel further submits that the trial court has considered the evidence on record and then proceeded to decide the suit and accordingly the suit is decreed. However, the first appellate court, without framing necessary

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points for its determination and without properly appreciating the evidence on record, has reversed the findings recorded by the trial court. Therefore, he submits that the second appeal deserves consideration.

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On the other hand, the counsel for the respondents submits that the second appeal does not raise any substantial question of law for consideration. He submits that the appellate court has considered the matter on merits and reversed the findings of the trial court. The counsel for the respondents submits that in case this court is inclined to accept the arguments of the counsel for the appellant that no necessary points are framed by the first appellate court for its determination, in that case the matter may be remanded back to the first appellate court for fresh adjudication. However, he submits that the aforesaid submission is made as alternate submission in case this court is inclined to allow the second appeal.

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Upon hearing the counsel for the parties and upon perusal of the judgment and order of the first appellate court, it appears to this court that the first appellate court has not framed necessary points for its determination and also not revisited the findings recorded by the trial court before the said findings are reversed by the first appellate court. Therefore, the second appeal would raise following substantial questions of law for consideration:

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a) Whether the first appellate court has failed to comply with mandate of the provisions of Order XLI Rule 31 of the Code of Civil Procedure, 1908 inasmuch as the point required to be framed for deciding the appeal has not been framed, especially when the

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learned trial court has framed various issues and given findings on each and every issue ?

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b) Whether the learned appellate court was justified in holding that the transaction is not genuine and is suspicious in view of the execution of different documents more particularly the documents at Exh. 70 and 72 without appreciating the fact that the execution of these documents was never in question and that the appellant/original plaintiff has satisfactorily proved the same ?

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c) Whether the learned appellate court was justified in holding that the suit is not within limitation i.e. within 3 years from the date of denial when in fact there was no denial at all by the respondents till filing of the suit ?

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On the aforesaid substantial questions of law, Admit.

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On admission, the counsel for the respondent waives service.

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The provision of Order XLI Rule 31 CPC mandates that the first appellate court shall frame all points for its determination and adjudicate the appeal.

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In the facts of the present case, it appears that the trial court has framed as many as eight issues for its consideration and on all issues, rendered the findings upon appreciation of evidence placed on record. In a suit for specific performance, an issue in respect of readiness and willingness is must and the same was framed by the trial court. However, it appears that the first appellate court has not framed the said point for its determination. There are only three points framed by the first appellate court those also appear to be general in nature. There is no specific point framed by the appellate court in respect of the readiness and willingness and also the other points including the

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point of limitation. If the first appellate court wanted to reverse the findings of the trial court, in that case it was incumbent upon the first appellate court to frame all necessary points for its determination and after discussing the findings recorded by the trial court on each issue, then reverse the findings, if the first appellate court was so convinced.

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In the light of the above and in view of the alternate submission of the counsel for the respondents, this court deem it appropriate to remit the matter back to the first appellate court to consider the same afresh on merits within a stipulated period.

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In the light of the above, the judgment and decree passed in the Regular Civil Appeal No.15 of 2007 is quashed and set aside. Regular Civil Appeal No.15 of 2007 is restored to its original file. Parties will be at liberty to agitate all the issues involved in the matter. The appellate court to decide the said appeal as expeditiously as possible, however, within three months from today.

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It is made clear that this court has not expressed opinion on merits of the matter and it is left for the parties to agitate all issues before the first appellate court. The second appeal is allowed to the above extent. The same stands disposed off. Resultantly, the civil application does not survive. Hence, the same stands disposed off.

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Annaso Shiva Vani v. 1. Keshav Tukaram Nikam Dece. T.H.L.H.

Case brief

What is this about?

What did the court decide?

Annaso Shiva Vani v. 1. Keshav Tukaram Nikam Dece. T.H.L.H.

Case brief

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What did the court decide?

What the court decided

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