Case Note & Summary
The case arises from a partition suit (Regular Civil Suit No.4 of 1986) filed by the respondents (original plaintiffs) against the appellant (original defendant No.1) and another defendant. The trial court decreed partition on 3/1/1989. The appellant appealed to the District Court, Thane, which dismissed the appeal (Civil Appeal No.61 of 1989) on 23/1/1991. The appellant then filed a second appeal in the Bombay High Court. At the time of admission on 26/8/1991, the High Court framed a substantial question of law: whether the lower appellate court committed a procedural error in not framing points for determination. The High Court noted that the lower appellate court had framed only one issue: 'Is there any necessity to interfere with the judgment and decree passed by the lower Court?' and answered it in the negative. The High Court held that this was a clear procedural error as Order 41 Rule 31 of the Code of Civil Procedure, 1908 requires the appellate court to frame points for determination. The High Court also observed that the appellant had not framed any substantial question of law in the memo of appeal, but the court had already framed one at admission. Consequently, the High Court allowed the appeal, set aside the lower appellate court's judgment, and remanded the matter for fresh disposal in accordance with law, with a direction to decide the appeal within six months. The parties were directed to appear before the District Court on 23/1/2006.
Headnote
A) Civil Procedure - Appellate Court - Points for Determination - Order 41 Rule 31 CPC - The lower appellate court failed to frame points for determination and instead framed only one issue regarding necessity to interfere - Held that this constitutes a procedural error warranting remand for fresh disposal in accordance with law (Paras 1-3).
Issue of Consideration
Whether the lower appellate court committed a procedural error in not framing points for determination as required under Order 41 Rule 31 of the Code of Civil Procedure, 1908.
Final Decision
The High Court allowed the second appeal, set aside the judgment and order of the lower appellate court dated 23/1/1991, and remanded the matter to the lower appellate court for fresh disposal in accordance with law, with a direction to decide the appeal within six months. The parties were directed to appear before the District Court, Thane on 23/1/2006.
Law Points
- Procedural error
- Points for determination
- Order 41 Rule 31 CPC
- Remand
- Substantial question of law
Case Details
2005 LawText (BOM) (12) 71
Second Appeal No.415 of 1991
Mr. Arvind J. Joshi for appellant, Mr. S.G. Karandikar h/f Mr. G.B. Karandikar for Respondents 1 to 4
Shri Damodar Jivan Mhatre
Smt. Bebibai Baburao Mhatre, Shri Hareshwar Baburao Mhatre, Shri Balkrishna Baburao Mhatre, Kum. Kalpana Baburao Mhatre, Shri Nathuram Jivan Mhatre
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Nature of Litigation
Second appeal against a decree of partition passed by the trial court and confirmed by the lower appellate court.
Remedy Sought
The appellant (original defendant No.1) sought to set aside the lower appellate court's judgment confirming the partition decree.
Filing Reason
The appellant challenged the lower appellate court's judgment on the ground of procedural error in not framing points for determination as required under Order 41 Rule 31 CPC.
Previous Decisions
The trial court (Civil Judge, Junior Division, Palghar) decreed partition on 3/1/1989 in Regular Civil Suit No.4 of 1986. The lower appellate court (4th Additional District Judge, Thane) dismissed the appeal (Civil Appeal No.61 of 1989) on 23/1/1991.
Issues
Whether the lower appellate court committed a procedural error in not framing points for determination as required under Order 41 Rule 31 CPC?
Submissions/Arguments
The appellant argued that the lower appellate court failed to frame points for determination, which is a procedural error.
The respondents supported the lower appellate court's judgment.
Ratio Decidendi
The lower appellate court committed a procedural error by not framing points for determination as required under Order 41 Rule 31 CPC, which warrants setting aside the judgment and remanding the matter for fresh disposal.
Judgment Excerpts
While admitting this appeal on 26/8/1991 this Court framed the substantial question of law for consideration in the following words: 'There involves a substantial question relating to the procedural error in not framing the points for determination by the lower Appellate Court.'
It is seen from the judgment and order of the lower Appellate Court that it had framed the following issue and answered in the negative: 'Is there any necessity to interfere with the judgment and decree passed by the lower Court?'
Procedural History
The trial court (Civil Judge, Junior Division, Palghar) decreed partition on 3/1/1989 in Regular Civil Suit No.4 of 1986. The appellant appealed to the District Court, Thane, which dismissed the appeal (Civil Appeal No.61 of 1989) on 23/1/1991. The appellant then filed a second appeal in the Bombay High Court, which was admitted on 26/8/1991, framing a substantial question of law regarding procedural error. The High Court delivered its judgment on 21/12/2005, allowing the appeal and remanding the matter.
Acts & Sections
- Code of Civil Procedure, 1908: Order 41 Rule 31
