Whether the Lower Appellate Court has followed the mandate of Order XLI Rule 31 of the Code of Civil Procedure in disposing of the Appeal?”- The Lower Appellate Court has thereafter in one paragraph concluded the Appeal.= the Lower Appellate Court has not followed the mandate of Order XLI Rule 31 of the Code of Civil Procedure.= “It is mandatory for appellate court to independently assess evidence of parties and consider relevant points which arise for adjudication and bearing of 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.”The Division Bench of this Court in Khatunbi's case (supra) has also held that compliance of Rule 31 of Order XLI of the Code of Civil Procedure is mandatory and that failure to comply with the said provision of law would not be a mere irregularity. The Lower Appellate Court as can be seen has failed to adhere to the mandate of the Order XLI Rule 31 of the Code of Civil Procedure and the impugned Judgment and Order therefore stands vitiated on the said ground.

published in http://bombayhighcourt.nic.in/generatenew.php?path=./data/judgements/2013/&fname=CSA2110911.pdf&smflag=N
Bombay High Court
sa­520.11aw­ca­1257.11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.520 OF 2011
WITH
CIVIL APPLICATION NO.1257 OF 2011
1 Laxman Ramchandra Shelke  ]
Age 70 years, Occ : Agriculture ]
]
2 Ananda Ramchandra Shelke  ]
Age 60 years, Occ : Agriculture ]
]
3 Shivaji Baba Shelke  ]
Age 58 years, Occ : Agriculture ]
]
4 Bhimrao Baba Shelke  ]
Since Deceased through L.Rs ]
]
4a Mangal Bhimrao Shelke ]
Age 56 years, Occ : Agriculture ]
]
5 Suresh Baba Shelke ]
Age 42 years, Occ : Agriculture, ]
]
6 Vilas Baba Shelke ]
Age 40 years, Occ : Agriculture, ]
]
7 Pandurang Krishna Shelke ]
Age 55 years, Occ : Agriculture, ]
]...... Appellants.
All R/at, Shelkewadi under Yevati, ] ( Orig. Deft.Nos.1 to 7)
Tal­Karad, District – Satara ]
versis
Sou.Akkubai Tukaram Dambarke  ]
Age 75 years, Occ : Houshold ]
R/o. Shelkewadi, Under Yevati, ]..... Respondent
Tal­Karad, District – Satara ](Original Plaintiff)
lgc  1 of 10
::: Downloaded on - 15/08/2013 15:03:10 :::Bombay High Court
sa­520.11aw­ca­1257.11
Mr. Girish R Agrawal for the Appellant.
Mr. Uday P Warunjikar with Mr. Deval Auja for the Respondent.
CORAM : R. M. SAVANT, J.
DATE   : 02nd July 2013
ORAL JUDGMENT :­
1 Admit, with  the  consent  of  the learned  counsel  for  the  parties
heard forthwith.
2 The Appellants herein i.e. the Defendant Nos.1 to 7 are in Appeal
against   the   Judgment   and   Order   dated   29/4/2011   passed   by   the   learned
District Judge­1, Karad. By the said Judgment and Order, the decree passed by the Trial Court for partition and separate possession has been confirmed. 
3 The principal contention urged on behalf of the Appellants herein
is  the manner in which the Lower Appellate Court has disposed of  the said
Appeal.
4 The   substantial   question   of   law   therefore   which   arises   for
consideration is,
“Whether the Lower Appellate Court has  followed the
mandate   of   Order   XLI  Rule   31   of   the   Code   of   Civil
Procedure in disposing of the Appeal?”
lgc  2 of 10
::: Downloaded on - 15/08/2013 15:03:10 :::Bombay High Court
sa­520.11aw­ca­1257.11
5 The  suit in  question  has  been  filed  by  the Respondent i.e.  the
original   Plaintiff   for   partition,   separate   possession   and   for   permanent
injunction against the Defendants in respect of the suit properties which are
described in Paragraph Nos.1, 1A and 1B of the plaint.  
The Plaintiff claims
share in the suit properties on the ground that she is a daughter of Chandru Naru  Shelke  and  that  at  present  there is no  other legal  heir  to  her  father Chandru who died in the year 1942
It is her case that in the suit properties her
father had 1/4th  share and 
after his death, her mother Anubai had got legal right and interest in the said 1/4th shareas per the provisions of Hindu Women's right to Property Act, 1937, and 
after coming to operation of Hindu Succession Act she had became absolute owner of the said 1/4th share, and 
after her death,
the Plaintiff being her daughter is entitled to the said 1/4th share.
6 The Defendants i.e. the Appellants herein denied the contentions
of  the  Plaintiff.
They  denied  that  the   Plaintiff is  the  daughter  of  the  said
Chandru and that she was given in marriage to one Tukaram Dambarke.
It is
their  case  that  the  Plaintiff has no concern with  the Defendants or Anubai Shelke and that she was never in possession of the suit properties and has no share in the suit properties, and therefore, she is not entitled to the relief of partition and separate possession.
lgc  3 of 10
::: Downloaded on - 15/08/2013 15:03:10 :::Bombay High Court
sa­520.11aw­ca­1257.11
7 The Trial Court on the basis of the pleadings framed the issues as
to
whether  the  Plaintiff was  the  daughter  of Chandru  Shelke; whether  the Plaintiff proves that she has a share in the suit properties, and 
whether the Plaintiff is entitled to partition.
The parties have led evidence in respect of the
said issues.
The Plaintiff had examined as many as five witnesses whereas the
Defendant No.1 adduced evidence on behalf of  the Defendants.
It is on  the
basis  of  the  oral  and documentary evidence on  record  that  the Trial Court
decreed the suit and issued a declaration that the Plaintiff is the daughter of
the said Chandru Shelke and she is entitled to 1/4th share which was belonging
to the said Chandru Shelke and consequently she is entitled for partition and
separate possession of the said share.
The decree of the Trial Court is dated
19/10/2004.
8 The Defendants carried the matter in Appeal which Appeal came
to be numbered as Regular Civil Appeal No.1 of 2005.  In the context of the
issues that were framed and answered by the Trial Court, the Lower Appellate
Court framed the following 4 issues :­
1  Whether the appellant proves that the Ld. Lower Court has drawn
wrong conclusion regarding relationship of plaintiff with deceased
Chandru ?
2  Whether appellant proves that the Ld. Lower Court has wrongly
held that plaintiff have 1/4th share in the suit property?
lgc  4 of 10
::: Downloaded on - 15/08/2013 15:03:10 :::Bombay High Court
sa­520.11aw­ca­1257.11
3  Whether  appellant proves  that  the  Ld.  Lower Court has  drawn
wrong conclusion?
4  What order ?
The  Lower Appellate Court  has  thereafter in  one  paragraph  concluded  the Appeal.    
The   Lower   Appellate   Court,   as   can   be   seen   from   the   impugned
Judgment and Order, has recorded that the Trial Court seems to have drawn a
conclusion on the basis of the evidence led before it, and it seems that there is
proper reasoning to the said conclusions drawn by the Lower Court and that
the Appellants have failed to satisfy the Lower Appellate Court as to how the
Lower Court has drawn wrong conclusion.  
The Lower Appellate Court has
further observed that since the relationship is established, the Plaintiff is the
sole  successor  to  the property of Chandru  and  she is  therefore entitled  for
partition and separate possession.  As indicated above, it is the said Judgment
and Order dated 29/04/2011 passed by the Lower Appellate Court, which is
taken exception to by way of the above Second Appeal.
9 Heard the learned counsel for the parties.
The principal contention
of the learned counsel for the Appellants is that the Lower Appellate Court has
not followed the mandate of Order XLI Rule 31 of the Code of Civil Procedure.
It is the submission of the learned counsel for the Appellants that the Lower
Appellate Court ought to have appreciated the facts/evidence on record and
thereafter ought  to have independently assessed  the evidence of  the parties
lgc  5 of 10
::: Downloaded on - 15/08/2013 15:03:10 :::Bombay High Court
sa­520.11aw­ca­1257.11
and   consider   the   relevant   points/issues   which   arise   for   adjudication.   The
learned counsel  for  the Appellants would contend  that  the Lower Appellate
Court being the last  fact finding Court must give reasons for its decision on
each point independently  to  that of  the Trial Court.    In support of the said
contention   the   learned   counsel   for   the   Appellants   would   rely   upon   the
judgments of the Apex Court in the matter of   H Siddiqui v A Ramalingam
reported in AIR 2011 SC 1492  ;  in the matter of M/s Real Estate Agencies
v/s. Govt. of Goa and ors. reported in 2012 AIR SCW 5203; in the matter of
B V Nagesh & Anr. V/s. H V Sreenivasa Murthy reported in 2010(6) ALL MR
928; in the matter of Madhukar and ors v/s. Sangram and ors.  reported in
AIR 2001 SC 2171. The learned counsel for the Appellants also relied upon
the Judgment of the Division Bench of this Court in the matter of Khatunbi
wd/o Mohammad Sayeed and others v/s. Aminabi w/o Mohammad Sabir
reported in 2006(6) Mh.L.J. 759.
10 Per   contra,   the   learned   counsel   appearing   on   behalf   of   the
Respondent would support the order passed by the Lower Appellate Court. The
learned   counsel   for   the   Respondent   would   contend   that   when   the   Lower
Appellate Court agrees with view of the Trial Court on evidence it need not
restate the effect of the evidence or reiterate reasons given by the Trial Court.
The learned counsel for the Respondent would contend that the expression of
general agreement with reasons given by the Court, the decision of which is
lgc  6 of 10
::: Downloaded on - 15/08/2013 15:03:10 :::Bombay High Court
sa­520.11aw­ca­1257.11
under appeal would ordinarily suffice.  In support of the said contention, the
learned  counsel  for  the Respondent would  rely upon  the Judgments of  the
Apex   Court   in   the   matter   of  Girijanandini   Devi   V/s.   Bijendra   Narain
Choudhary  reported in  AIR  1967  SC  1124  and in  the matter  of  Santosh
Hazari v/s. Purushottam Tiwari (deceased) by LRs.  reported in  (2001) 3
SCC  179.    In   so  far   as  the   judgment  in   Santosh  Hazari's  case   (supra)  is
concerned,  the learned counsel  for  the Respondent would contend  that  the
Apex Court has carved out two categories; one wherein the Appellate Court
agrees with the findings of the Trial Court, in which case a general agreement
with reasoning would suffice, and second category where the Appellate Court
does not agree with the findings of the Trial Court,  in which case the findings
of fact based on conflicting evidence arrived at by the Trial Court must weigh
with   the   Appellate   Court   and   also   whilst   reversing   a   finding   of   fact   the
Appellate Court must come into close quarters with the reasoning assigned by
the  Trial Court  and  then  assign its  own  reasons  for  arriving  at  a  different
finding.   The learned counsel for the Respondent would contend that in the
facts of the present case where the Lower Appellate Court  has agreed with the
finding   of   the   Trial   Court,   the   general   expression   of   agreement   with   the
findings of the Trial Court would suffice, and therefore no interference is called
for with the impugned Judgment and Order of the Lower Appellate Court.
lgc  7 of 10
::: Downloaded on - 15/08/2013 15:03:10 :::Bombay High Court
sa­520.11aw­ca­1257.11
11 Having heard the learned counsel for the parties, I have bestowed
by anxious consideration to the rival contentions.  The Lower Appellate Court,
as can be seen, has framed three issues which have been adverted to herein
above. After framing the said three issues, the Lower Appellate Court has, in a
cryptic manner, answered the same.  No doubt, the Lower Appellate Court has
expressed an agreement with the finding and conclusion recorded by the Trial
Court, however, considering the mandate of Order XLI Rule 31 of the Code of
Civil   Procedure,   which   has   been   expounded   by   the   Apex   Court   in   the
Judgments (supra) as also the judgment of a Division Bench of this Court in
Khantunbi's case (supra) cited on behalf of the Appellants, the Lower Appellate
Court could not have disposed of the Appeal in the manner in which it has
been   done.   The   relevant   extract   from   Paragraph   17   of   the   judgment   in
H.Siddiqui  (dead)  by  Lrs'  case  (supra)  can  be  gainfully  reproduced  herein
under :­
“It is mandatory for appellate court to independently assess
evidence of parties and consider relevant points which arise
for  adjudication  and  bearing  of  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.”
lgc  8 of 10
::: Downloaded on - 15/08/2013 15:03:10 :::Bombay High Court
sa­520.11aw­ca­1257.11
The Division Bench of  this Court in Khatunbi's case (supra) has
also   held   that   compliance   of   Rule   31   of   Order   XLI   of   the   Code   of   Civil Procedure is mandatory and that failure to comply with the said provision of law would not be a mere irregularity. 
As can be seen, the impugned Judgment and Order is bereft of any
reasons   as   to   why   the   evidence   which   has   been   adduced   by   the   Plaintiff
deserves acceptance as also the reasons why the findings of the Trial Court are
acceptable to the Lower Appellate Court.  The Lower Appellate Court as can be
seen in an abrupt manner concluded  that both  the  findings and conclusion
reached by the Trial Court cannot be said to be wrong findings or conclusion.
In my view, the Lower Appellate Court therefore has not discharged the duty
cast upon its as an Appellate Court.
12 In  so  far  as  the  Judgments  cited  on  behalf  of  the Respondent
herein   are   concerned,   it   is   required   to   be   noted   that   the   judgment   in
Girijanandini Devi's case (supra) was considered by the Apex Court in Santosh
Hazari's case   (supra)  though  the Apex Court in Santosh Hazari's case had
adverted to the ratio laid down in Girijanandini Devi's case that if the Lower
Appellate   Court   agrees   with   the   finding   of   the   Trial   Court   then   general
expression of agreement would suffice.  However, at the same time, the Apex
lgc  9 of 10
::: Downloaded on - 15/08/2013 15:03:10 :::Bombay High Court
sa­520.11aw­ca­1257.11
Court in Paragraph 15 has sounded a note of caution and had observed that
same should not be a device or camouflage adopted by the appellate court for
shirking the duty cast on it. In my view, the judgment of the Apex Court in
Girijanandini Devi's case (supra) cannot be relied upon to justify the manner in
which the appeal has been disposed of in the instant case.
The Lower Appellate
Court as can be seen has failed to adhere to the mandate of the Order XLI Rule 31 of  the Code of Civil Procedure  and  the impugned Judgment  and Order therefore   stands  vitiated  on  the   said  ground.   
 The   result  of   the   aforesaid
discussion would  be  that  the impugned  Judgment  and Order  of  the  Lower
Appellate Court would have to be set aside and the matter would have to be
relegated back to the Lower Appellate Court for de­novo consideration of the
Appeal. The same to be done by the Lower Appellate Court within a period of
three months of the parties appearing before it. The Lower Appellate Court on
remand would be well advised  to  record its  findings on  the issues  that are
framed by referring to the facts and evidence which has been recorded by the
Trial  Court.    The  substantial   question   of  law  therefore   to  stand  answered
accordingly. With the aforesaid directions the above Second Appeal is disposed
of. In view of the disposal of the above Second Appeal, the Civil Application
No.1257 of 2011 does not survive and the same to accordingly stand disposed
of as such.
[R.M.SAVANT, J]
lgc  10 of 10
::: Downloaded on - 15/08/2013 15:03:10 :::
Court in Paragraph 15 has sounded a note of caution and had observed that
same should not be a device or camouflage adopted by the appellate court for
shirking the duty cast on it. In my view, the judgment of the Apex Court in
Girijanandini Devi's case (supra) cannot be relied upon to justify the manner in
which the appeal has been disposed of in the instant case.
The Lower Appellate
Court as can be seen has failed to adhere to the mandate of the Order XLI Rule
31 of  the Code of Civil Procedure  and  the impugned Judgment  and Order
therefore   stands  vitiated  on  the   said  ground.  
The   result  of   the   aforesaid
discussion would  be  that  the impugned  Judgment  and Order  of  the  Lower
Appellate Court would have to be set aside and the matter would have to be
relegated back to the Lower Appellate Court for de­novo consideration of the
Appeal. The same to be done by the Lower Appellate Court within a period of
three months of the parties appearing before it. The Lower Appellate Court on
remand would be well advised  to  record its  findings on  the issues  that are
framed by referring to the facts and evidence which has been recorded by the
Trial  Court.    The  substantial   question   of  law  therefore   to  stand  answered
accordingly. With the aforesaid directions the above Second Appeal is disposed
of. In view of the disposal of the above Second Appeal, the Civil Application
No.1257 of 2011 does not survive and the same to accordingly stand disposed
of as such.
[R.M.SAVANT, J]
lgc  10 of 10

Comments

Popular posts from this blog

Article 54 of the Limitation Act, 1963 (36 of 1963) reads as follows: “For Specific performance of a contract: Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.”= the apex Court in Ahmmadsahb Abdul Mila vs. Bibijan[1], wherein it was held that the date fixed for the performance of the contract should be a specified date in the calendar, and submitted that since no specified date in the calendar for performance of the contract is mentioned in the agreement of sale, the second limb of Article 54 of the Limitation Act is applicable. ; whether the suit is barred by limitation or not becomes a tribal issue and when there is a tribal issue, the lower Court ought not to have rejected the plaint at the threshold. In view of the same, order, dated 27-01-2012, in CFR.No.90 of 2012, passed by the Additional Senior Civil Judge, Ongole, (FAC) Senior Civil Judge, Darsi, is, hereby, set aside. The Appeal is allowed accordingly.

Or.18, rule 17 and sec.151 C.P.C - petition filed for reopen and examination of the executant of Ex.A1 the sale deed to fill up the lacuna in evidence pointed out at the time of arguments not maintainable = Shaik Gousiya Begum. ..Petitioner Shaik Hussan and others.... Respondents = Published in http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=10515

Order 39 Rules 1 and 2 CPC. plaintiff has to prove his title and possession how he came into possession prima faice , in the absence of the same, not entitled for interim injunction = The questions as to whether the lease deed was properly stamped and whether the stamp paper on which it was typed can be said to have been procured through proper source, need to be dealt with at the stage of trial.; The suit filed by the 1st respondent, is the one for injunction simplicitor in respect of an item of immovable property. He has also filed an application under Order 39 Rules 1 and 2 CPC. Basically, it was for the 1st respondent to establish that he is in possession and enjoyment of the property and that he derived the same through lawful means, particularly when he did not contend that he encroached upon the property.= assumptions of facts against to the contents of crucial third party by misreading the same- it is just un-understandable as to how the trial Court gathered the impression that Anuradha stated that there was a meeting of Board of Directors, where it was decided to lease the property to the appellants. - the trial Court itself was not clear as to whether the appellant is the lessee or a Manager or is working under any other arrangement. - The important findings that have a bearing upon the valuable rights of the parties cannot be based upon such uncertain and unverified facts. One of the cardinal principles in the matter of examining the applications filed under Order 39 Rules 1 and 2 CPC is that a party claiming that relief must come to the Court with clean hands. Prima facie, we find that there are no bona fides, much less consistency on the part of the 1st respondent, in his effort to get the order of temporary injunction. The trial Court has misread the evidence and misinterpreted the facts borne out by the record.