Case Note & Summary
The present second appeal arises from a suit for declaration and injunction filed by the original plaintiff (respondent herein) against the original defendant (appellant herein) concerning immovable property. The trial court decreed the suit in favor of the plaintiff, and the first appellate court dismissed the appeal, confirming the trial court's findings. The defendant then filed this second appeal under Section 100 of the Code of Civil Procedure, 1908. The appellant contended that the lower appellate court did not apply its mind independently, failed to frame proper points for determination, and merely reiterated the trial court's reasoning without considering the evidence on record. The respondent supported the concurrent findings. The High Court examined the judgment of the lower appellate court and found that it did not frame any points for determination as required under Order 41 Rule 31 CPC. The appellate court simply reproduced the trial court's findings and concluded that the appeal deserved dismissal without any independent assessment. The High Court held that this amounted to a serious non-application of mind and a failure to exercise appellate jurisdiction properly. Consequently, the High Court allowed the second appeal, set aside the judgment of the lower appellate court, and remanded the matter back to the first appellate court for fresh disposal in accordance with law, with a direction to decide the appeal within six months. The civil application also stood disposed of.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Non-Application of Mind by Lower Appellate Court - The lower appellate court failed to frame proper points for determination and did not independently assess the evidence, merely concurring with the trial court without reasoning - Held that such judgment is unsustainable and liable to be set aside, with remand for fresh disposal in accordance with law (Paras 1-10). B) Civil Procedure - Order 41 Rule 31 CPC - Points for Determination - Requirement of Framing - The appellate court must frame points for determination arising from the grounds of appeal and must give reasons for its decision on each point - Failure to do so amounts to a serious irregularity - Held that the judgment of the lower appellate court is vitiated and must be remanded (Paras 5-8).
Issue of Consideration
Whether the lower appellate court's judgment suffers from non-application of mind and failure to frame proper points for determination, thereby vitiating the concurrent findings and warranting interference in second appeal.
Final Decision
The second appeal is allowed. The judgment and decree of the lower appellate court are set aside. The matter is remanded to the first appellate court for fresh disposal in accordance with law, with a direction to decide the appeal within six months from the date of the order. The civil application also stands disposed of.
Law Points
- Second appeal
- substantial question of law
- concurrent findings
- non-application of mind
- Order 41 Rule 31 CPC
- remand
- points for determination
