Case Note & Summary
The respondent filed Regular Civil Suit No. 19/2000 seeking mandatory injunction directing the appellants to demolish a portion of a compound wall constructed in the respondent's property, remove illegal encroachment, restore boundary stones, and restrain the appellants from using a suit access. The appellants, original defendants, filed a written statement disputing the claim and a counterclaim claiming peaceful use of the access. The trial court dismissed the suit and allowed the counterclaim. The respondent appealed to the Lower Appellate Court, which allowed the appeal and set aside the trial court's judgment. The appellants then filed a second appeal in the High Court of Bombay at Goa. The High Court admitted the appeal on the substantial question of law whether the Lower Appellate Court complied with Order 41 Rule 31 read with Section 96 CPC. The High Court found that the Lower Appellate Court did not frame points for determination and did not provide adequate reasoning, thus failing to comply with the mandatory requirements. The High Court set aside the Lower Appellate Court's judgment and remanded the matter for fresh disposal in accordance with law.
Headnote
A) Civil Procedure - Appellate Court Judgment - Order 41 Rule 31 CPC - Duty to Frame Points for Determination - The Lower Appellate Court failed to frame points for determination and did not provide adequate reasoning as required under Order 41 Rule 31 CPC. The High Court held that the judgment of the Lower Appellate Court was not in compliance with the said provision, and remanded the matter for fresh disposal. (Paras 2, 6-7)
Issue of Consideration
Whether the Lower Appellate Court while disposing of the appeal preferred by the respondent has duly complied with the provisions of Order 41 Rule 31 read with Section 96 of the Civil Procedure Code?
Final Decision
The High Court allowed the second appeal, set aside the judgment of the Lower Appellate Court, and remanded the matter to the Lower Appellate Court for fresh disposal in accordance with law, after framing points for determination and providing adequate reasoning.
Law Points
- Order 41 Rule 31 CPC
- Section 96 CPC
- Duty of Appellate Court
- Points for Determination
- Remand
Case Details
2013 LawText (BOM) (07) 142
Second Appeal No. 78 of 2012
Mr. V. Menezes for appellants, Mr. J. P. Mulgaonkar for respondent
Mr. Alvito Gomes and Mrs. Wilma Fortes Gomes
Mrs. Alzira Carvalho e Costa
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Nature of Litigation
Civil suit for mandatory injunction and counterclaim regarding property rights, compound wall, encroachment, boundary stones, and access.
Remedy Sought
Appellants sought to set aside the Lower Appellate Court's judgment allowing the respondent's appeal and restoring the trial court's decree dismissing the suit and allowing the counterclaim.
Filing Reason
The Lower Appellate Court failed to comply with Order 41 Rule 31 CPC by not framing points for determination and not providing adequate reasoning.
Previous Decisions
Trial Court dismissed the suit and allowed the counterclaim. Lower Appellate Court allowed the respondent's appeal and set aside the trial court's judgment.
Issues
Whether the Lower Appellate Court complied with Order 41 Rule 31 read with Section 96 CPC?
Submissions/Arguments
Appellants argued that the Lower Appellate Court did not frame points for determination and did not provide adequate reasoning as required by Order 41 Rule 31 CPC.
Respondent waived service and did not contest the appeal.
Ratio Decidendi
The Lower Appellate Court must comply with Order 41 Rule 31 CPC by framing points for determination and providing adequate reasoning in its judgment. Failure to do so renders the judgment unsustainable and liable to be set aside.
Judgment Excerpts
Whether the Lower Appellate Court while disposing of the appeal preferred by the respondent has duly complied with the provisions of Order 41 Rule 31 read with Section 96 of the Civil Procedure Code?
The Lower Appellate Court has not framed the points for determination and has not given adequate reasoning as required under Order 41 Rule 31 CPC.
Procedural History
Respondent filed Regular Civil Suit No. 19/2000. Trial Court dismissed suit and allowed counterclaim. Respondent appealed to Lower Appellate Court which allowed appeal. Appellants filed Second Appeal No. 78/2012 in High Court of Bombay at Goa. High Court admitted appeal on substantial question of law and allowed it, remanding matter.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order 41 Rule 31, Section 96
