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CASE NO.: Appeal (civil)  894-895 of 2002

PETITIONER: G. Amalorpavam & Ors.                                            

RESPONDENT: R.C. Diocese of Madurai & Ors.                           

DATE OF JUDGMENT: 06/03/2006

BENCH: ARIJIT PASAYAT & TARUN CHATTERJEE

JUDGMENT: J U D G M E N T

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.

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       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-

(a)     the points for determination; (b)     the decision thereon; (c)     the reasons for the decision; and (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."

       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:

"\005\005\005\005\005 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.

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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: "\005\005\005\005\005\005The 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

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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.