JUDGMENT
R.M.S. Khandeparkar, J.
1. Heard the learned advocates for the parties.
2. This appeal arises from the judgment dated 2nd February, 1988 passed in First Appeal No. 4 of 1978. By the impugned judgment, the learned Single Judge has set aside the judgment and decree dated 29-4-1977 passed by the trial Court in Special Civil Suit No. 226 of 1973 and has ordered issuance of preliminary decree for partition of the property, while declaring the shares of the parties and also giving directions for rendition of the accounts from 5-6-1986 till the respondent/plaintiff gets the possession of the 1/7th share in the property.
3. Though the impugned judgment and decree is sought to be challenged on various grounds, it is not necessary to deal with all those grounds and suffice to refer to only one ground which relates to non-compliance of mandatory provision of law comprised under Order 41, Rule 31 of the Code of Civil Procedure by the appellate Court while passing the impugned judgment.
4. Few facts relevant for the decision are that the respondent/plaintiff filed a suit for partition claiming right to the property in question which was contested by the appellants and on conclusion of trial, the suit was dismissed. The matter was carried in F.A. No. 4 of 1978 which was disposed of by the impugned judgment. In fact, the appeal was disposed of in the absence of the appellants herein who were the respondents in the first appeal. Undoubtedly, the appellants were served, however, they failed to appear before the Court at the time of the arguments in the first appeal.
5. Order 41, Rule 31 of the Code of Civil Procedure clearly provides that 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.
6. Plain reading of the said provision would disclose that the appellate Court before proceeding to deliver the judgment on merits of the case has to formulate the points for determination and with reference to such points for determination, analyse the materials on record and thereupon arrive at the conclusion to be delivered as its decision. Obviously the decision should disclose the reasons for the decision. However, the reasons for decision by themselves cannot constitute the points for determination. The points for determination have to be formulated in order to enable the Court to identify the exact points in controversy in the matter and with reference to those points, the Court has to appreciate the evidence led by the parties. In fact, the law on this aspect has been well settled by the decision of the learned Single Judge of this Court in Vishwas Balu v. Ghasiram Ramratan Jajum wherein it has been held that the compliance of Order 41, Rule 31 is mandatory and the expression used therein “shall state” clearly discloses that the failure to comply with the said provision of law would not be a mere irregularity. Indeed, the phraseology used in Rule 31 apparently discloses that compliance of the said provision is not a mere formality and therefore failure thereof cannot be said to be a mere irregularity. This is also clear from Rule 30 of Order 41 and in particular Sub-rule (2) thereof. Rule 30(2) of Order 41 provides that “where a written judgment is to be pronounced, it shall be sufficient if the points for determination, the decision thereon and the final order passed in the appeal are read out and it shall not be necessary for the Court to read out the whole judgment, but a copy of the whole judgment shall be made available for the perusal of the parties or their pleaders immediately after the judgment is pronounced,” Obviously, in cases where on conclusion of the arguments in appeal, the judgment is reserved to be delivered and thereafter it is sought to be pronounced, it is not sufficient merely to declare as to whether the appeal is allowed or not, but ultimate decision has to be made known to the parties along with the points for determination which have been considered in the appeal. This provision of law clearly discloses the necessity for formulation of the point for determination before the appellate Court proceeds to deliver the judgment in the appeal.
7. The learned Single Judge of this Court in Smt. Anita M. Barretto v. Abdul Wahid Sanaullah 1984 Mh.L.J. 931 : AIR 1985 Bom. 98, while dealing with the necessity of compliance of provisions of Order 41, Rule 31, held that when a requirement such as this is insisted upon by the procedural law of the land, one must try to understand the object and scope of such provision. Merely asking the question as to whether the judgment of the Court below is correct, legal or valid is hopelessly an inadequate method of meeting the requirement of this legal provision. Further, while referring to the earlier decision in Mhasu v. Davalat (1905) 7 Bom. LR. 174, it was also reminded that there was similar provision in the earlier Civil Procedure Code and it was pointed out that the object of the Legislature in making it incumbent on an appellate Court to raise points for determination is to clear up the pleadings and focus the attention of the Court and of the parties on the specific and rival contentions in the matter. It was further held that the points which must arise for determination by a Court of first appeal must cover all important questions involved in the case and they should not be general and vague. It was further held that it is a matter of almost textbook knowledge that the exact questions which arise in the appeal for determination must be stated in the judgment.
8. It is thus clear that right from the beginning of 20th century consistent view taken by this Court is that the provision regarding the requirement of formulation of points for determination by the appellate Court while proceeding to deliver the judgment in appeal has been held to be mandatory in nature and not a mere irregularity.
9. The mandate of Rule 31 of Order 41 of Civil Procedure Code was confirmed by the Apex Court in Lakshmi Ram Bhuyan v. Hari Prasad Bhuyan while holding that the said rule casts an obligation on the author of the appellate judgment to 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.
10. Attention was sought to be drawn on behalf of the respondent to Section 99 of the Code of Civil Procedure which provides that “no decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder or non-joinder of parties or causes of action of any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court, provided that nothing in this section shall apply to non-joinder of a necessary party.” Section 99 refers to irregularities in the proceedings in the suit. Non-joinder of parties or mis-joinder of parties as well as mis-joinder of causes of action are irregularities in the proceedings in a suit. However, even in such cases Section 99 itself makes an exception in the matter of non-joinder of necessary parties. Though it is an irregularity, it can prejudicially affect the rights of the parties who are not joined and the issue relating to the rights of such parties are adjudicated upon in the suit. Being so, even in case of irregularity which affects the substantial rights of the parties, decree can be modified irrespective of the fact that such irregularity affects the merits of the case or not.
11. It is also to be noted that the provisions comprised under Order 41 of Code of Civil Procedure elaborately deal with procedure to be followed from the date of filing of the appeal till it is disposed of. There are certain provisions which are mandatory in nature in relation to such procedural law whereas there are some which are directory in nature. Rule 3-A under Order 41 clearly provides that in case of delay in filing the appeal, the memo of appeal shall be accompanied by an application supported by an affidavit setting forth the facts on which the appellant seeks to rely to satisfy the Court that he had sufficient cause for not preferring the appeal within the prescribed period. The words used therein are “it shall be accompanied by an application”. In other words, the application for condonation of delay in filing the appeal cannot be filed as a matter of right after filing of appeal. In case there is delay in filing the appeal, then such application should be filed along with the memo of appeal and not thereafter.
12. The provisions comprised under Rules 17 to 21 apparently disclose the discretion in favour of the Court to be exercised depending upon the facts of the case. It is not mandatory to dismiss the appeal on account of default on the part of the appellant to appear in the matter and even after having dismissed so, it can be re-admitted and re-heard by the Court. It will all depend upon the facts of each case. Hence, it cannot be said that merely because Rule 31 forms part of the procedure to be followed by the appellate Court, that the same is directory in nature. Apart from the words used in the said Rule, which is the primary indication of the intention of the Legislature, whether the provision is mandatory or not, the very purpose and object behind such Rule discloses that the compliance thereof is absolutely necessary, as has been ruled by this Court right from 1905 onwards and duly approved by the Apex Court.
13. The learned advocate for the respondent has drawn our attention to the decision of learned Single Judge of this Court in Subhash Vitthalrao Gatlewar v. Dattatray Keshavrao Shinde, deceased through L.Rs. Ramesh Dattatray Shinde and ors. reported in 2005(1) Mh.L.J. 43. Indeed therein, while dealing with the provisions of law comprised under Order 41, Rule 31, it has been held that the compliance thereof is not mandatory but directory in nature. With utmost respect, we are unable to persuade ourselves to agree with the said decision. Apart from the fact that the same is directly contrary to the consistent view taken by this Court from 1905 onwards and made known to the public by the decision referred to above, considering the same, the decision in Subhash’s matter, cited supra, cannot be held to lay down correct proposition of law on the point in issue.
14. The Apex Court in Santosh Hazari v. Purushottam Tiwari deceased by L.Rs. reported in 2001(2) Mh.L.J. 786, while dealing with the scope of powers of appellate Court under Section 96 of the Code of Civil Procedure, observed that the task of an appellate Court affirming the findings of the trial Court is an easier one and the appellate Court agreeing with the view of the trial Court need not restate the effects 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, struck a note of caution that “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. 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 findings of fact. It was further held that “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.”
(emphasis supplied)
15. The ruling by the Apex Court obviously discloses that writing judgment is not a mere formality. The judgment ultimately decides about the rights of the parties and the issue sought to be raised by the adversaries in the litigation. In order to make it known to the litigating parties that the Judge delivering the judgment after considering the rival contentions, the materials placed on record and on application of mind to the same, has decided the matter, the judgment should apparently disclose the points which are considered by the Judge as relevant for consideration while dealing with the matter. This can be revealed from the judgment only when the points for determination are properly formulated by the Court before delivering its decision on the rival contention of the parties. Being so, it cannot be said to be a mere formality in the course of delivering the judgment upon the adjudication of the rights of the parties in the matter. It is rather a very important stage in the delivery of the judgment by the Court. Being so, it is to be construed as a mandatory requirement to be complied with by the appellate Court while delivering the judgment.
16. The learned advocate for the respondent also sought to contend that after the disposal of the appeal, the subsequent events have taken place and third party interest is created in the property. It does not require much time to reject the contention, being devoid of substance. Section 144 of Code of Civil Procedure is on the statute book to take due care of such circumstances. Merely because after disposal of the appeal by the first appellate Court, the subsequent event that has created third party interest, cannot be a justification to deny the rights of the parties in appeal.
17. In the case in hand, bare perusal of the impugned judgment discloses that the learned Single Judge, merely because nobody had appeared on behalf of the respondent in the said appeal, proceeded to dispose of the appeal without complying with the provisions of Order 41, Rule 31. Bare reading of the judgment nowhere discloses that the learned Single Judge having considered the necessity of formulating the questions which are required to be dealt with in the appeal. It is pertinent to note that when the appellate Court has reversed the judgment of the trial Court, in such circumstances, it was absolutely necessary for the first appellate Court to consider what were the points involved in the matter and accordingly formulate the points for determination and then deal with those points with regard to the materials on record. Failure on the part of the learned Single Judge in this regard clearly warrants setting aside of the judgment and remanding the matter to the first appellate Court to consider the appeal afresh in accordance with the provisions of law.
18. It was also sought to be contended that no prejudice is caused to the appellants as during the pendency of the first appeal the original defendant expired and her only claim was regarding life interest and therefore on her death the life interest came to an end. Undisputedly this aspect has not been dealt with in the manner in which it was required to be dealt with by the first appellate Court in the impugned judgment. It is primarily necessary for the first appellate Court to deal with this aspect in accordance with the provision of law and arrive at appropriate finding in that regard. It will be premature for us to deal with those points on merits in this appeal. Being so, the question of prejudice sought to be raised is also devoid of substance.
19. For the reasons stated above, the appeal succeeds. The impugned judgment is quashed and set aside and the matter is remanded to the first appellate Court to deal with F.A. No. 4 of 1978 in accordance with the provision of law. Needless to say that in view of the fact that the appeal relates to the year 1978, same shall be dealt with as expeditiously as possible and we, therefore, request the learned Single Judge to dispose of the same, as expeditiously as possible and preferably within a period of four months. No order as to costs.
20. At this stage, the learned advocate for the respondent prays for stay of the order for a period of six weeks. Same is opposed by the learned advocate for the appellants. In our considered opinion, since the order which we have passed is in consonance with the provisions of law and is in consonance with the decision of the Apex Court, we do not find any justification for stay of the order. Besides, the matter is not decided on merits of the case and all the issues in that regard are kept open to be decided by the first appellate Court. Hence the request for stay is rejected.