Partly allowed

Sukhbiri v. Mahesh Lata

Uttarakhand HC9 Mar 2021SA/31/2012

Case brief

AI extract

What is this about?

In a second appeal, the High Court of Uttarakhand held that the First Appellate Court failed to comply with Order 41 Rule 31 CPC by not framing points of determination. Consequently, the appeal judgment was quashed, and the matter was remitted to the First Appellate Court to decide afresh.

What did the court decide?

Judgment of the First Appellate Court dated 28.01.2012 was quashed, and the matter was remitted to it to decide the appeal afresh within six months after complying with Order 41 Rule 31 CPC.

Sukhbiri Vs Mahesh Lata — Civil Procedure and Limitation | Uttarakhand HC (2021)

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HIGH COURT OF UTTARAKHAND AT NAINITAL

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Second Appeal No. 31 of 2012

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Sukhbiri …Defendant/Appellant

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Vs.

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Mahesh Lata and Another …Plaintiff/Respondents

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Advocates : Mr. Siddhartha Sah, Advocate, for the appellant Mr. Pradeep Kumar Chauhan, Advocate, for the respondents

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Hon’ble Sharad Kumar Sharma, J.

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The brief facts, which engage consideration in the present Second Appeal are that, principally, in relation to the properties, which was lying in plot Nos. 235/1, 235/2 and 235/3, were earlier made as a subject matter of the proceedings of a Civil Suit, being Civil Suit No. 425 of 1925, which was decided by the then Court of Munsif, Deoband, by virtue of a judgment dated 19.11.1925, whereby, the suit of the plaintiff, therein was partially decreed, only in relation to relief ‘a’ of the plaint. This judgment, though it had been referred in the present Second Appeal, but it may not be of much relevant consideration for the purposes of deciding the present Second Appeal.

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2. The present Second Appeal has been preferred by the defendants/appellants herein, alleging themselves to be aggrieved against the judgment and decree dated 28.01.2012, as was rendered by the Court of Additional District Judge/2^nd FTC Haridwar, in Civil Appeal No. 7 of 2005, Sukhbiri Vs. Mahesh Lata and Another, by virtue of the said judgment of the Appellate Court, the appeal, which was preferred by the defendants/appellants was dismissed and, consequently, it was resulting into affirming the judgment and decree dated 29.11.2004, which was passed by the Court of Civil Judge

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(Junior Division), Haridwar in Original Suit No. 203 of 1994, Mahesh Lata and Another Vs. Sukhbiri. Hence, the present Second Appeal, was instituted by the defendants/appellants, on 24.04.2012.

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3. Before venturing into the arguments which had been extended by the learned counsel for the defendants/appellants, the brief backdrop of the case are that, on 30.05.1994, the plaintiff/respondent, had instituted a civil suit for the grant of decree of permanent injunction, as against the defendants/appellants, in relation to the property, which was more particularly described at the foot of the plaint; to be constituting of khasra No. 235/2 and 235/3, having an area o f total 3 biswa and 6 biswansis of land, which was in the pleadings contended to be an abadi land, lying in village Jagjitpur, Pargana Jwalapur, Tehslil and District Haridwar. The suit property its chauhaddi was described in the plaint itself, in the north, there was a public passage and a place of worship of bhutia devta; in the south, it was harijan basti; in the east yet again a public passage and, in the west, it was a gher or maidan (open land).

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The plaintiff/respondent had pleaded in the suit that the suit property, as described therein, its principal recorded owner was Harnam son of Mehru, who was contended to be the grandfather of the plaintiff/respondent herein and the case of the plaintiff/respondent, in the Suit, was that on the date of death of Harnam, the property was succeeded by his two sons i.e. Ganeshi Lal and Ratan Lal, who too had later met with the sad demise and thereafter, their estate were succeeded by plaintiff No. 1 being the son of Ganeshi Lal and plaintiff No. 2 being the son of late Mr. Ratan Lal. Their plaint contention was that the defendants without there being any right, title or interest vested with them

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were trying to forcefully interfere in their ancestral property by forceful interference, and despite the fact that the defendants, were never ever recorded in the revenue records, and hence in the plaint, it was contended that the cause of action for them to institute the suit has arisen on 25.05.1994, consequently, the suit was filed on 30.05.1994, for the grant of the decree of permanent injunction of the following nature :-

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**10- ;g fd oknhx.k vnkyr ls fuEufyf[kr ekax djrs gSa& v- fMxzh bLrdjkfj;k cgd oknhx.k cjf[kykQ izfroknhuh bl vej dh lkfnj Qjek;h tkos fd oknhx.k vkjkth fuEufyf[kr ,-ch-lhMh- ds rUgk Lokeh o ekfyd gSA

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c- ctfj;s fMxzh LFkk;h fu’ks/kkKk ds }kjk izfroknuh dks fu’ks/k fd;k tkos fd oknhx.k ds dCts vkjkth fuEufyf[kr esa dksbZ n[ky vUnkth izR;{k ;k ijks{k :i ls u djsa uk djkosA

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l- [kpkZ eqdnek oknhx.k dks izfroknuh ls fnyk;k tkosA

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n- vU; fnxj nknjlh tks jkt vnkyr esa mfpr gks og Hkh lkfnj Qjek;h tkosA**

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On institution of the suit, the defendants were noticed; and they filed their written statement on 21.11.1996, and they took a plea that the plaintiffs’ suit for the grant of decree was malicious and was based upon the fictitious rights which was allegedly claimed by the plaintiff for the purposes of institution of the suit and rather it intended and was an attempt to encroach upon the land of the defendants/appellants. But, however, during the pendency of the suit, the defendants/appellants had filed an application under Order 8 Rule 6A, filing a counterclaim by virtue of seeking an amendment in the written statement, which was allowed by the order of the learned trial Court dated 19.05.2001, and the defendants/appellants had raised a counterclaim for the grant of decree to the following effect, which was limited to a grant of decree of permanent injunction, in relation to khasra No. 235/1 only, which is extracted hereunder:-

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** v- ;g fd iz”uxr lEifRr ftldk fooj.k okni= ds vUr esa fn;k x;k gS [kljk uEcj 235@1 dk dCtk oknuh ls izfroknuh dks fnyk;k tkosA

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c- ;g fd vU; nknjlh tks jk; vnkyr esa mfpr gks izfroknuh dks oknuh ls fnyk;h tkosA

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l- ;g fd [kpkZ dkmUVj Dyse izfroknuh dks oknuh ls fnyk;k tkosA**

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Based on the aforesaid rival contentions, the suit which was thus instituted by the plaintiff/respondent, it was registered as Case No. 203 of 1994, Mahesh Lata daughter of Ganeshi Lal and Another Vs. Sukhbiri, the learned Trial Court, on the exchange of the pleadings and considering the counterclaim too pertaining to khasra No. 235/1, had framed the following issues:-

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**1D;k fookfnr lEifRr ij oknhx.k dks feyfd;rh vf/kdkj gkfly gS\

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2- D;k okn ,lVksiy ,.M ykW vkWQ ,Dohts”ku jsltqfMdsVk ds fl}kar ls ckf/kr gS\

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3- D;k okn dk ewY;kadu de fd;k x;k gS\

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4- D;k fookfnr Hkwfe [kljk la[;k 235@1 ;k 235@2 o 235@3 esa fLFkr gS\

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5- D;k izfroknuh oknuh ls [kljk ua0 235@1 ij dCtk izkIr djus dh vf/kdkfj.kh gS\

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6- D;k dkmUVj Dyse dk ewY;kadu de fd;k gS rFkk iznRr U;k;”kqYd vi;kZIr gS\

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7- vuqrks’k] ;fn dksbZ gks] ftls oknuh o izfroknuh izkIr djus dh vf/kdkfj.kh gS**

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The learned counsel for the plaintiff/respondent, in support of his contention, had placed on record by way of evidence, a khasra and a copy of ‘ gathhe’ , and also the copy of an application, which they have submitted before the revenue authorities for getting themselves to be recorded in the revenue records. On the contrary, the defendants/appellants, for the purposes of substantiating their counterclaim had placed on

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record and had relied on a list of documents through paper No. 27C1, which included with it the copy of the judgment/decree of 19.11.1925, which they contended, that as per the decree of Munsif, Deoband, which was rendered in Suit No. 427 of 1925, they had got their right vested in relation to the khasra, which was claimed by them to be theirs, as per the counterclaim i.e. khasra No. 235/1, of the aforesaid village.

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Besides this, the parties to the Suit, also led their respective oral evidences also and ultimately the learned trial Court, by virtue of one of the judgments and decree which has been under challenge in the present Second Appeal i.e. dated 29.11.2004, had decreed the suit of the plaintiff and has rejected the counterclaim of the defendants/appellants.

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Being aggrieved against the said judgment and decree of the learned trial Court dated 29.11.2004, the defendants/appellants had preferred an Appeal, being Civil Appeal No. 7 of 2005, Sukhbiri Vs. Mahesh Lata and Another, before the Court of Additional District Judge/2^nd FTC Haridwar. The Appellate Court, while making reference to the issues, which were framed by the learned trial Court on 04.12.1996 and 06.07.2001, had dismissed the Appeal by virtue of the impugned judgment dated 28.11.2012, and hence the present Second Appeal, being aggrieved as against the concurrent judgements of declining for the grant of decree of permanent injunction in favour of the plaintiffs/respondents.

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10. When the Second Appeal was admitted by the coordinate Bench of this Court, by an order dated 25.04.2012, the following substantial questions of law was framed to the effect –

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“Whether the suit of the plaintiff/respondent was barred by the principles of estoppel and res judicata?”

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11. It was that during the pendency of the present Second Appeal, the learned counsel for the appellant sought a permission that he wanted to get an additional substantial question of law formulated by invoking the provisions contained under sub Section (4) of Section 100 of the CPC, and on the grant of the said permission, the learned counsel for the defendant/appellant had framed the additional substantial question of law and one of the prime question, and substantial question of law, which was permitted to be framed by the Court, was to the following effect:-

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“Whether the First Appellate Court’s judgement failed to confirm to the provisions of Order 41 Rule 31 of the CPC and as such cannot be sustained?”

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12. The learned counsel for the defendant/appellant, prior to addressing the Court on the trial Court’s judgement dated 30.11.2004, as was rendered in Suit No. 203 of 1994, had primarily confined his argument on the substantial question of law, which was later framed under Section 100(4) of CPC; to the effect that the Appellate Court’s judgement does not satisfy the terms of the provisions contained under Order 41 Rule 31 of the CPC, as prior to the final adjudication of the First Appeal, based on the rival contentions which were raised by the parties, the learned Appellate Court as such had not framed any point of determination, nor had applied its mind, to the aspects, to the challenge given to the trial Court’s judgement and hence contended that the decision in an Appeal is erroneous, in the light of the findings recorded in para 13 of the Appellate Court’s judgment would be barred by the provisions of Order 41 Rule 31 of the CPC, which is extracted hereunder:-

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“31. Contents, date and signature of judgment.- The judgment of the Appellate Court shall be in writing and shall state—

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(a) the points for determination;

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(b) the decision thereon;

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(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.”

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13. The plaintiff/respondents, in response to the question which was raised by the Court, as to whether the Appellate Court’s judgment dated 28.12.2012, satisfies the terms and conditions or the legislative intent of the provisions contained under Order 41 Rule 31 of the CPC, and as to whether when in a suit, in which there is a counterclaim, whether the Appellate Court ought to have formulated a separate point of determination or not? In principle, the learned counsel for the plaintiff/respondents had submitted that though the appellate Court’s judgement apparently might have not have specifically framed the point of determination, but the findings which have been recorded from para 14 onwards of the Appellate Court’s judgment, would satisfy the paramateia of Order 41 Rule 31 of the CPC.

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14. This contention of the learned counsel for the plaintiff/respondents was strongly refuted by the learned counsel for the defendant/appellant, on the ground that, that the interpretation which has been given to the findings, which had been recorded by the learned Appellate Court, by the learned counsel for the plaintiff/respondents, as per opinion of this Court, it may not be construed as to be a satisfaction, to the provisions of Order 41 Rule 31 of the CPC. In the absence of there being any specific point of determination being framed and known to the opposite party in the Appeal, as mandated by the principles enunciated by the Code of Civil Procedure, for the reason being that the First Appellate Court, since being the last Court of fact and law, it was statutorily incumbent on the Appellate Court, to

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have formulated a point of determination before venturing into the hearing the Appeal, on its merits in order to enable the parties to the proceedings to know and address, their respective cases on the point of determination, which is framed by the learned First Appellate Court.

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15. After having heard the learned counsel for the parties and after going through the Appellate Court’s judgment, I am of the view that the First Appellate Court’s judgement dated 28.01.2012, fails on the test of scrutiny of Order 41 Rule 31 of the CPC, as the Appellate Court, has merely given a narration of facts and has reiterated the findings of the trial Court, while making its observation by extracting the findings on the issues, which was framed by the learned trial Court, as has been quoted above, and, in fact, there was no specific point of determination which was ever framed by it, nor it was answered as it is mandatory as per the procedure provided under Order 41 Rule 31 of the CPC, and as per the ratio which has been laid down by the Hon’ble Apex Court in the judgment reported in ( 2011) 4 SCC 240, H. Siddiqui (Dead) by Lrs. Vs. A. Ramalingam. Para 20 and 21 of the said judgment is quoted hereunder :-

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“20. T he 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.

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Order XLI, Rule 31 CPC:

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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

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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)”

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16. At this stage, even in principle, the learned counsel for the respondent, had not been able to satisfy the Court, that as to whether at all the impugned appellate Court’s judgement dated 28.01.2012, could be said to be in satisfaction to the provisions contained under Order 41 Rule 31 of CPC, in the absence of there being a point of determination being specifically framed and answered, the parties being called upon to address the Court on the point of determination thus framed, whether the parties to the Appeal, prior to entering into the arguments of the First Appeal on merits, were provided with the point of determination, in order to enable them to answer the questions by their arguments, the learned counsel for plaintiffs/respondents had rather not been able to satisfy the Court, that the learned Appellate Court’s judgement, would fall to be within the ambit of Order 41 Rule 31

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of the CPC and, hence after hearing the learned counsel for the parties, I am of the view that, once it is a regular civil proceedings; where the First Appellate Court, exercises its first superior appellate jurisdiction, as against the adjudication which was made by the learned trial Court, it was incumbent on the appellate Court, that it ought to have framed the point of determination in order to enable the parties to know and to address on the same prior to deciding the Appeal itself on its own merits and in the absence of any such point of determination specifically being framed and answered by the appellate Court, the judgement would be taken as to be apparently suffering from the vices of non-compliance of the aforesaid provisions, which, as per the Hon’ble Apex Court’s judgment, has been held to be a mandatory duty of the appellate Court; that prior to calling upon the parties to the First Appeal to address the Appeal on its own merit, should formulate the point of determination on which the adjudication is being contemplated to be made by the First Appellate Court.

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17. Hence, on this limited question only, the substantial question of law, as framed by virtue of an amendment, permitted to be carried by this Court; to the effect that as to whether the judgement satisfies the terms and conditions of the provisions contained under Order 41 Rule 31 of the CPC or not, is answered in favour of the defendant/appellant.

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18. Consequently, the Second Appeal is partially allowed, limited to the extent of quashing of the judgement of the learned Appellate Court dated 28.01.2012, as rendered by the Court of Additional District Judge/2^nd FTC, Haridwar in Civil Appeal No. 7 of 2005, Sukhbiri Vs. Mahesh Lata and Another, and the matter is remitted back to the learned Appellate Court to re-decide the

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appeal afresh, after complying with the provisions contained under Order 41 Rule 31 of the CPC. All sincere efforts are expected to be made by the First Appellate Court, to decide the First Appeal, as expeditiously as possible, at least within six months from the date of the receipt of the certified copy of this judgment.

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(Sharad Kumar Sharma, J.) 09.03.2021

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Mahinder/

Sukhbiri v. Mahesh Lata

Case brief

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Sukhbiri v. Mahesh Lata

Case brief

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