G. Amalorpavam
& Ors Vs. R.C. Diocese of Madurai & Ors [2006] Insc 114 (6 March 2006)
Arijit
Pasayat & Tarun Chatterjee Arijit Pasayat, J.
These
two appeals are directed against the orders of a learned Single Judge of the
Madras High Court. A Second Appeal was dismissed and the review petition filed
was also dismissed.
Learned
Single Judge of the Madras High Court dismissed the Second Appeal filed by the
appellants under Section 100 of the Code of Civil Procedure, 1908 (in short the
'CPC'). The Second Appeal was filed by the defendants 1 to 3 i.e. the present
appellants against the judgment and decree made in A.S. No.2 of 1993 on the
file of Subordinate Judge, Periakulam confirming the judgment and decree dated
18.3.1992 made in O.S. No.597 of 1982 on the file of District Munsif Court, Periakulam.
The
respondent in the Second Appeal filed the suit for possession of the suit
property as well as the recovery of arrears of rent and damages. The learned
District Munsif, Periakulam, on consideration of the facts decreed the suit.
Aggrieved by the said judgment and decree, the appellants herein preferred an
appeal before the Sub
Court, Periakulam.
The
learned Sub Judge also confirmed the findings of the learned District Munsif
and dismissed the appeal. A Second Appeal was filed before the High Court.
At the
time of admission of the Second Appeal the following question was framed for
determination:
"Whether
the lower appellate court is correct in deciding the appeal without any points
for determination as contemplated under Order 41 Rule 31 of CPC?" It was
contended before the High Court that Order 41 Rule 31, C.P.C. is mandatory and
compliance is necessary. When the points of determination have not been
specifically indicated the appellate judgment becomes vulnerable. Stand of the
respondent before the High Court was that there has been a substantial
compliance with the provisions of Order 41 Rule 31, CPC and, therefore, the
appeal was without any merit.
The
High Court accepted the stand of the respondent. Though some questions framed
related to merits, as noted the dispute was restricted to the alleged
non-compliance of Order 41 Rule 31 CPC.
Accordingly,
the Second Appeal was dismissed. Review Petition was also dismissed.
In
support of the appeals, learned counsel for the appellants submitted that the
High Court did not keep in view the true scope and ambit of Order 41 Rule 31
CPC. Points for determination were not specifically indicated by the First
appellate Court and, therefore, the judgment was non-est.
Learned
counsel for the respondents on the other hand supported the impugned judgment.
Order
41 Rule 31 CPC reads as follows:
"Contents,
date and signature of judgment- The judgment of the Appellate court shall be in
writing and shall state-
-
the points for
determination;
-
the decision
thereon;
-
the reasons for
the decision; and
-
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." The question whether in a
particular case there has been a substantial compliance with the provisions of
Order 41 Rule 31 CPC has to be determined on the nature of the judgment
delivered in each case.
Non-compliance
with the provisions may not vitiate the judgment and make it wholly void, and
may be ignored if there has been substantial compliance with it and the second
appellate Court is in a position to ascertain the findings of the lower
appellate Court. It is no doubt desirable that the appellate court should
comply with all the requirements of Order 41 Rule 31 CPC. But if it is possible
to make out from the judgment that there is substantial compliance with the
said requirements and that justice has not thereby suffered, that would be
sufficient. Where the appellate court has considered the entire evidence on
record and discussed the same in detail, come to any conclusion and its
findings are supported by reasons even though the point has not been framed by
the appellate Court there is substantial compliance with the provisions of
Order 41 Rule 31 CPC and the judgment is not in any manner vitiated by the
absence of a point of determination. Where there is an honest endeavour on the
part of the lower appellate court to consider the controversy between the
parties and there is proper appraisement of the respective cases and weighing
and balancing of the evidence, facts and the other considerations appearing on
both sides is clearly manifest by the perusal of the judgment of the lower
appellate court, it would be a valid judgment even though it does not contain
the points for determination. The object of the Rule in making it incumbent
upon the appellate court to frame points for determination and to cite reasons
for the decision is to focus attention of the Court on the rival contentions
which arise for determination and also to provide litigant parties opportunity
in understanding the ground upon which the decision is founded with a view to
enable them to know the basis of the decision and if so considered appropriate
and so advised to avail the remedy of Second Appeal conferred by Section 100
CPC.
At
this juncture it would be relevant to note what this Court said in Girijanandini
Devi and Ors. v. Bijendra Narain Choudhary (AIR 1967 SC 1124). In para 12 it
was noted as follows:
"
It is not the duty of the appellate court when it agrees with the view of the
Trial Court on the evidence either to restate the effect of the evidence or to
reiterate the reasons given by the Trial Court.
Expression
of general agreement with reasons given by the Court decision of which is under
appeal would ordinarily suffice." The view was reiterated in Santosh Hazari
v. Purshottam Tiwari (Deceased) by Lrs. (2001 (3) SCC 179). In para 15 it was
held with reference to Girijanandini Devi's case (supra) as follows:
"The
appellate court has jurisdiction to reverse or affirm the findings of the trial
court. First appeal is a valuable right of the parties and unless restricted by
law, the whole case is therein open for rehearing both on questions of fact and
law. The judgment of the appellate court must, therefore, reflect its conscious
application of mind and record findings supported by reasons, on all the issues
arising along with the contentions put forth, and pressed by the parties for
decision of the appellate court. The task of an appellate court affirming the
findings of the trial court is an easier one. The appellate court agreeing with
the view of the trial court need not restate the effect of the evidence or
reiterate the reasons given by the trial court; expression of general agreement
with reasons given by the court, decision of which is under appeal, would
ordinarily suffice (Girijanandini Devi v. Bijendra Narain Choudhary (AIR 1967
SC 1124)). We would, however, like to sound a note of caution.
Expression
of general agreement with the findings recorded in the judgment under appeal
should not be a device or camouflage adopted by the appellate court for
shirking the duty cast on it. While writing a judgment of reversal the
appellate court must remain conscious of two principles. Firstly, the findings
of fact based on conflicting evidence arrived at by the trial court must weigh
with the appellate court, more so when the findings are based on oral evidence
recorded by the same Presiding Judge who authors the judgment. This certainly
does not mean that when an appeal lies on facts, the appellate court is not
competent to reverse a finding of fact arrived at by the trial Judge. As a matter
of law if the appraisal of the evidence by the trial Court suffers from a
material irregularity or is based on inadmissible evidence or on conjectures
and surmises, the appellate court is entitled to interfere with the finding of
fact.
(Madhusudan
Das v. Narayanibai ((1983) 1 SCC 35 : AIR 1983 SC 114)). The rule is - and it
is nothing more than a rule of practice - that when there is conflict of oral
evidence of the parties on any matter in issue and the decision hinges upon the
credibility of witnesses, then unless there is some special feature about the
evidence of a particular witness which has escaped the trial Judge's notice or
there is a sufficient balance of improbability to displace his opinion as to
where the credibility lie, the appellate court should not interfere with the
finding of the trial Judge on a question of fact.
(Sarju
Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh (AIR 1951 SC 120)
Secondly, while 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. This would satisfy the
court hearing a further appeal that the first appellate court had discharged
the duty expected of it. We need only remind the first appellate courts of the
additional obligation cast on them by the scheme of the present Section 100
substituted in the Code. The first appellate court continues, as before, to be
a final court of facts; pure findings of fact remain immune from challenge
before the High Court in second appeal. Now the first appellate court is also a
final court of law in the sense that its decision on a question of law even if
erroneous may not be vulnerable before the High Court in second appeal because
the jurisdiction of the High Court has now ceased to be available to correct
the errors of law or the erroneous findings of the first appellate court even
on questions of law unless such question of law be a substantial one." It
has been categorically recorded by the High Court that the First appellate
Court had considered the evidence led on behalf of the parties and has given
finding to come to the conclusions arrived at. It noted that the lower
appellate Court had independently considered the evidence and had given
different findings on the issues framed by the trial Court and on the basis of
the arguments which were advanced before it. It was further noted that there
was detailed discussion giving reasons for affirming the order of the trial
Court. Learned counsel for the appellants had urged that the suit filed by the
plaintiff was not maintainable as the plaintiff was the diocese represented by
its procurator. It was submitted that the plaintiff is not entitled to any
relief as was prayed for in the suit.
This
point was not urged before the High Court and, therefore, it would not consider
necessary to go into that aspect. Judged in the background of legal principles
set out above the judgment of the High Court does not suffer from any
infirmity.
In
that view of the matter the appeals are without merit and are dismissed. Costs
made easy.
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