Gujarat High CourtAjitkumar Somchandbhai Shah vs Madevbhai Becharbhai Goyal on 20 October, 2022C/SA/160/2020                                  ORDER DATED: 20/10/2022\n\n\n\n\n          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD\n\n                   R/SECOND APPEAL NO. 160 of 2020\n                                 With\n              CIVIL APPLICATION (FOR STAY) NO. 1 of 2020\n                                  In\n                   R/SECOND APPEAL NO. 160 of 2020\n================================================================\n                     AJITKUMAR SOMCHANDBHAI SHAH\n                                 Versus\n                      MADEVBHAI BECHARBHAI GOYAL\n================================================================\nAppearance:\nDECEASED LITIGANT for the Appellant(s) No. 1\nMS NILAM N CHAUHAN(6635) for the Appellant(s) No.\n1.1,1.2,1.3,1.4,1.5,1.6,1.7\nMR. AKASH R PATEL(6715) for the Respondent(s) No. 1\n================================================================\n\n CORAM:HONOURABLE MR. JUSTICE HEMANT M.\n       PRACHCHHAK\n\n                             Date : 20/10/2022\n\n                              ORAL ORDER1.    Being      aggrieved   and     dissatisfied    by     the      impugned\n\njudgment and order dated 27.01.2020 passed by the learned 2 nd\n\nAdditional District Judge Patan at Radhanpur in Regular Civil\n\nAppeal No.66 of 2018 (Old Regular Civil Appeal No.15 of 2018),\n\nthe appellant has preferred the present second appeal.2.    Heard learned counsel appearing for the respective parties.3.    Learned counsel appearing for the appellant has submitted\n\nthat the First Appellate Court has not properly determined thePage 1 of 10Downloaded on : Thu Oct 20 20:46:17 IST 2022C/SA/160/2020                          ORDER DATED: 20/10/2022\n\n\n\n\nsubstantial questions of law and, therefore, the appeal deserves\n\nto be allowed. He has relied upon the order dated 03.10.2022\n\npassed by this Court in Second Appeal No.176 of 2005.4.   Learned counsel appearing for the respondents has\n\nsubmitted that the Courts below have not committed any error of\n\nlaw and facts and the appeal being meritless deserves to be\n\ndismissed.5.   Considering the facts of the case and materials place on\n\nrecord, it appears that the First Appellate Court has not framed\n\nany substantial questions of law. I have also perused the\n\nimpugned judgment and order passed by the Courts below. In\n\nmy opinion, under Order 41 Rule 31 of the Civil Procedure Code\n\n(hereinafter be referred to as "the Code"), the First Appellate\n\nCourt is bound to frame points for consideration, however, the\n\nsame is not done. The provisions of Order 41 of the Civil\n\nProcedure Code provides that how the First Appellate Court has\n\nto deal with the appeal under Section 96 of the Code and the\n\nprocedure is to be followed as per Order 41 of the Code.6.   It is worthwhile to refer to the decision in case of AjitsinhPage 2 of 10Downloaded on : Thu Oct 20 20:46:17 IST 2022C/SA/160/2020                                  ORDER DATED: 20/10/2022Babubhai Jadav Vs. Wadhwan Mahajan Panjarapolreported\n\nin 2013 LawSuit(Guj) 251, the Court has held as under:"6. Now considering the points, which are formulated by\n       the lower Appellate Court, I am of the opinion that, the\n       lower Appellate Court has committed error in not properly\n       formulating the points for determination. The lower\n       Appellate Court ought to have framed points for\n       determination in accordance with Order 41 Rules 11, 14,\n       15 and 31 of the Code as well as Para No. 414 of the\n       Bombay Civil Manual and ought to have given reasons for\n       its decision on each point independently. The Apex Court in\n       the case of H.Siddiqui (dead) by LRs. (supra) in the context\n       of Order-41 Rule-31of the Code of Civil Procedure, has\n       observed in paras 21 and 22 as under:"21. The said provisions provided guidelines for the\n       appellate Court as to how the Court has to proceed and\n       decide the case. The provisions should be read in such a\n       way as to require that the various particulars mentioned\n       therein should be taken into consideration. Thus, it must\n       be evident from the judgment of the appellate Court that\n       the Court has properly appreciated the facts/evidence,\n       applied its mind and decided case considering the material\n       on record. It would amount to substantial compliance of\n       the said provisions if the appellate Court's judgment is\n       based on the independent assessment of the relevant\n       evidence on all important aspect of the matter and the\n       findings of the appellate Court are well founded and quite\n       convincing. It is mandatory for the appellate Court to\n       independently asses the evidence of the parties and\n       consider the relevant points which arise for adjudication\n       and the bearing of the evidence on those points.Being the\n       final Court of fact, the first appellate court must not record\n       mere general expression of concurrence with the trial\n       Court judgment rather it must give reasons for its decision\n       on such point independently to that of the trial Court. Thus,\n       the entire evidence must be considered and discussed in\n       detail. Such exercise should be done after formulating the\n       points for consideration in terms of the said provisions and\n       the Court must proceed in adherence to the requirements\n       of the said statutory provisions. (Vide:Sukhpal Singh v.\n       Kalyan Singh, AIR 1963 SC 146; Girijanandini Devi v.\n       Bijendra Narain Choudhary, AIR 1967 SC 1124; G.Page 3 of 10Downloaded on : Thu Oct 20 20:46:17 IST 2022C/SA/160/2020                                   ORDER DATED: 20/10/2022Amalorpavam v. R.C. Diocese of Madurai, 2006 (3) SCC\n  224;Shiv Kumar Sharma v. Santosh Kumari, 2007 (8) SCC\n  600; andGannmani Anasuya v. Parvatini Amarendra\n  Chowdhari, AIR 2007 (SC 2380: 2007 (10) SCC 296."22.InB.V. Nagesh v. H.V. Sreenivasa Murthyreported in\n  JT 2010(10) SC 551: 2010 (13) SCC 530, while dealing with\n  the issue, this Court held as under:"4. The appellate Court has jurisdiction to reverse or affirm\n  the findings of the trial Court. The first appeal is a valuable\n  right of the parties and unless restricted by law, the whole\n  case therein is open for re-hearing both on questions of\n  fact and law. The judgment of the appellate Court must,\n  therefore, reflect its conscious application of mind and\n  record findings supported by reasons, on all the issues\n  arising along with the contentions put forth and pressed by\n  the parties for decision of the appellate Court. Sitting as a\n  Court of appeal, it was the duty of the High Court to deal\n  with all the issues and the evidence led by the parties\n  before recording its findings. The first appeal is a valuable\n  right and the parties have a right to be heard both on\n  questions of law and on facts and the judgment in the first\n  appeal must address itself to all the issues of law and fact\n  and decide it by giving reasons in support of the findings.\n  (Vide :Santosh Hazari v. Purushottam Tiwari, 2001 (3) SCC\n  179 and Madhukar v. Sangram, 2001 (4) SCC 756."7.In a recent case ofBudhabhai Bhikhabhai Parmarand\n  and another Vs. ShantabenWd/o Bhalabhai Becharbhai,\n  2013(1)G.L.H.127, this Court, while dealing with the\n  provision ofSection 100of the Code of Civil Procedure and\n  the provisions of Order 41, Rule 31 of the Code by relying\n  upon the case of H. Siddiqui (dead) by Lrs. (supra), has\n  held that the first Appellate Court has to decide the Appeal\n  in accordance with law, on merits and after framing points\n  for determination as envisaged under Order- 41, Rule-31of\n  the Code of Civil Procedure. It has also been observed that\n  on each point, the Appellate Court has to give its own\n  finding that too after re-appreciation of entire evidence on\n  record.8. In addition to the above principles of provisions ofOrder\n  41 Rule 31 of the Code of Civil Procedure, Bombay Civil\n  Manual, which has been made applicable to the State of\n  Gujarat, provides in detail the Civil Courts' functioning.\n  Different Chapters provided therein make the provisions ofPage 4 of 10Downloaded on : Thu Oct 20 20:46:17 IST 2022C/SA/160/2020                                 ORDER DATED: 20/10/2022the Code of Civil Procedureamply clear that how the\n  original Court, first appellate Court and second appellate\n  Court has to function. To ensure the uniformity with regard\n  to practice and procedure of civil proceedings, the Manual\n  is an exhaustive guiding factors for a Court, who is\n  deciding disputes between the parties of a civil nature.8.1 As far as Appeals arising from the Trial Courts'\n  judgment, decree and order are concerned, Chapter-XX of\n  the Code deals with the same. Para/Rule-414 of the\n  Bombay Civil Manual provides about the manner, in which\n  the appellate Court should frame the suitable points for\n  determination while deciding the Appeal. Rule-414 of the\n  Bombay Civil Manual reads as under:"414. The appellate Court should frame suitable points for\n  determination in appeals in accordance with the same\n  principles on which issues are framed in the trial Court."2.    In my opinion, combined reading of the Order-41\n  Rule- 31 of the Code as well as Rule-414 of the Bombay\n  Civil Manual make it clear that the first appellate Court is\n  bound to frame points for consideration as if it is framing\n  the issues provided under the provisionsof the Code of\n  Civil Procedure. Paras/Rules-53 and 54 of the Bombay Civil\n  Manual provides the method of settlement / framing\n  issues. Rules-53 and 54 read as under:"53. Issues should be framed by the Presiding Judge on the\n  date fixed for the purpose. They indicate the points in\n  controversy, on which the parties are to go trial and give\n  them notice of the matters which they are required to\n  establish by adducing evidence or otherwise. No trial is\n  likely to be satisfactory unless the issues are complete and\n  precise. It should be observed that a party has to produce\n  evidence in support of the issues, which he is bound to\n  prove (Order XVIII, rules 2 and 3) and that the judgment of\n  the Court shall record its findings on the issues (Order XX,\n  rule- 5). These provisions should make it plain that an\n  essential preliminary to a satisfactory trial is the\n  settlement of full and precise issues. A judicious use of the\n  provisions of rule 1 of Order X and sub-rule (5) of rule 1 of\n  Order XIV may be found of help for collecting material\n  necessary for framing issues in seriously contested cases.\n  The duty of framing issues under the law must be\n  performed by the Court and the presiding Judge should not\n  leave it to the parties or lawyers to frame the issues butPage 5 of 10Downloaded on : Thu Oct 20 20:46:17 IST 2022C/SA/160/2020                                 ORDER DATED: 20/10/2022\n\n\n\n\n  should apply his own mind to the subject. There is\n  however, no reason why the Court should not take\n  suggestions from the parties as to the issues to be\n  framed.""54. In framing issues the Court should proceed as follows:-a) Every issue of fact shall be so framed as to indicate on\n  whom the burden of proof lies.(b) Every issue of law shall be so framed as to indicate the\n  precise question of law to be decided.Note : When the claim or any portion of it is alleged to be\n  barred by any law the issue shall also state the Act and\n  section or rule or other provision under which it is so\n  barred.(c) When the question is whether a certain section of law\n  applies, the issue should be framed in the words of that\n  section e.g., if the question is whether a transfer should be\n  set aside undersection 54of the Provincial Insolvency Act,\n  the issue should not be "Is the transfer bogus and\n  fraudulent"?(d) Issues should be self-contained. The framing of issues\n  such as "Is the sale liable to be set aside for the reasons\n  stated by the defendant in his written statement, dated..."\n  should be avoided(e) Every issue should form a single question and as far as\n  possible should not be put in an alternative form.(f) No proposition of fact which is not itself a material\n  proposition, but is relevant only as tending to prove a\n  material proposition, shall be made the subject of an issue.(g) No question regarding admissibility of evidence shall be\n  made the subject of an issue."8.3 Now in the present case, it is apparent from the\n  judgment and order of the lower Appellate Court that the\n  provisions of Order-41 Rule-31of the Code of Civil\n  Procedureand Rule-414 of the Bombay Civil Manual are\n  not followed.9. Even otherwise, the learned Appellate Court, in myPage 6 of 10Downloaded on : Thu Oct 20 20:46:17 IST 2022C/SA/160/2020                                 ORDER DATED: 20/10/2022\n\n\n\n\n        opinion, has not re-appreciated the entire evidence and\n        has not arrived at its own conclusion on each issues, which\n        were in controversy between the parties.10. A similar view was taken by this Court in the case of\n        Mahmad Ahmadbhai v. Fatmaben Abdulla & Ors. reported\n        in 2007(4) GLR 2789; in the case of Prajapati Abraham\n        Nagarbhai & Anr. v. Prajapati Harjibhai & Ors., reported in\n        2010(2) GLH 551 as well as in the case ofDumala Vahpara\n        Gram Panchayat v. Chunilal Tribhovandas Patel & Ors.,\n        reported in 1999(2) GLH 959"7.   It is also worthwhile to referred to the decision of the Apex\n\nCourt in the case ofK. Karuppuraj Vs. M. Ganesanreported in\n\n(2021) 10 SCC 777, the Hon'ble Apex Court has held that while\n\ndeciding the First Appeal, compliance ofOrder 41 Rule 31 of\n\nC.P.C. is mandatory.8.In the recent judgment of the Hon'ble Apex Court in case ofK. Karuppuraj(supra) and Judgments of this Court, which are\n\nreferred hereinafter, time and again reiterated by this Court and\n\nHon'ble Apex Court that how and in which manner the First\n\nAppellate Court has to decide the Appeal under Section 96 of the\n\nCode.9.   On bare perusal of the decision of the First Appellate Court,\n\nit is clearly borne out that the First Appellate Court has\n\ncommitted serious error in not deciding the appeal in accordancePage 7 of 10Downloaded on : Thu Oct 20 20:46:17 IST 2022C/SA/160/2020                          ORDER DATED: 20/10/2022\n\n\n\n\nwith the provisions of Order 41 of the Code and, therefore,\n\npresent appeal is required to be remanded back to the First\n\nAppellate Court to determine the appeal in accordance with the\n\nprovision of Order 41 Rule 11, 15, 31 and 33 and more\n\nparticularly considering the decisions of the Hon'ble Apex Court\n\nas well as this Court, present appeal deserves to be allowed and\n\nthe impugned judgment and order passed by the First Appellate\n\nCourt deserves to be quashed and set aside.10.   In view of the above settled principles of law, by delivering\n\nthe judgment and order, the First Appellate Court is required to\n\nsubstantially comply with the provision of Order 41 Rule 31 of\n\nthe Code.11.   In present case, on perusal of the judgment and order of\n\nthe First Appellate Court, it is abundantly clear that the First\n\nAppellate Court has failed to discharge obligation vested on it as\n\na First Appellate Court and, therefore, in my view, the impugned\n\njudgment and order of the First Appellate Court deserves to be\n\nquashed and set aside and the same deserves to be remanded\n\nto the First Appellate Court for considering the same afresh onPage 8 of 10Downloaded on : Thu Oct 20 20:46:17 IST 2022C/SA/160/2020                         ORDER DATED: 20/10/2022\n\n\n\n\nmerits and in accordance with law after framing points of\n\ndetermination in accordance with Order 41 Rule 11, 14, 15, 31\n\nand 33 of the Code.12.   For the foregoing reasons, the present second appeal is\n\nallowed. The impugned judgment and order dated 27.01.2020\n\npassed by the learned 2nd Additional District Judge Patan at\n\nRadhanpur in Regular Civil Appeal No.66 of 2018 (Old Regular\n\nCivil Appeal No.15 of 2018) is hereby quashed and set aside and\n\nthe matter is remanded back to the First Appellate Court to\n\ndecide the same afresh in accordance with law and on merits\n\nformulating the points of determination. The First Appellate Court\n\nshall decide the matter as expeditiously as possible and\n\npreferably within a period of six months from the date of receipt\n\nof certified copy of present order without being influenced by the\n\nearlier orders passed by the First Appellate Court and/or by this\n\nCourt after affording an opportunity of hearing to the learned\n\ncounsel for the respective parties. The parties shall also\n\ncooperate in the proceedings and shall not seek any unnecessary\n\nadjournment.Page 9 of 10Downloaded on : Thu Oct 20 20:46:17 IST 2022C/SA/160/2020                                ORDER DATED: 20/10/2022\n\n\n\n\n       The interim direction issued by the learned 2 nd Additional\n\nDistrict Judge, Patan at Radhanpur shall remain in force and shall\n\ncontinue till the final disposal of the appeal.13.    It is clarified that the matter is remanded only on the\n\nground as referred to hereinabove and this Court has not entered\n\ninto the merits of the case.14.    Pending civil application/s         shall    stands      disposed of\n\naccordingly.(HEMANT M. PRACHCHHAK,J)\nV.R. PANCHALPage 10 of 10Downloaded on : Thu Oct 20 20:46:17 IST 2022