Case Note & Summary
The appellant, Tanaji Krishna Shinde, original defendant No. 2, challenged the judgment and decree passed by the lower appellate court in Regular Civil Appeal No. 13 of 1987, which affirmed the trial court's decision in Regular Civil Suit No. 34 of 1978. The trial court had refused to grant specific performance of an agreement of sale dated 3rd December 1973 (Exh. 71) but directed defendant No. 1-A to return Rs. 1000 with interest. The appellant contended that the lower appellate court failed to frame points for determination as required under Order 41 Rule 31 of the Code of Civil Procedure, 1908. The High Court, per Justice R. K. Deshpande, examined the appellate judgment and found that it did not contain any points for determination. The court observed that the appellate court had merely reproduced the evidence and concurred with the trial court without independently applying its mind. The High Court held that the failure to frame points for determination is a serious procedural irregularity that vitiates the appellate judgment. Consequently, the second appeal was allowed, the impugned judgment and decree were set aside, and the matter was remanded to the lower appellate court for fresh disposal in accordance with law. The court directed the appellate court to frame points for determination, hear the parties, and decide the appeal afresh. No order as to costs.
Headnote
A) Civil Procedure - Appellate Court's Duty - Order 41 Rule 31 CPC - Points for Determination - The lower appellate court failed to frame points for determination as mandated by Order 41 Rule 31 CPC, rendering its judgment unsustainable. The High Court held that the appellate court must independently apply its mind and frame points for determination, and failure to do so vitiates the judgment. (Paras 1-5) B) Specific Performance - Agreement of Sale - Remand - The High Court set aside the concurrent findings of the trial court and lower appellate court and remanded the matter for fresh disposal in accordance with law, as the appellate judgment did not comply with procedural requirements. (Paras 1-5)
Issue of Consideration
Whether the lower appellate court's judgment is sustainable when it failed to frame points for determination as required under Order 41 Rule 31 of the Code of Civil Procedure, 1908, and whether the concurrent findings of fact can be upheld without proper application of mind.
Final Decision
The second appeal is allowed. The judgment and decree dated 17th August, 1992 passed by the lower appellate court in Regular Civil Appeal No. 13 of 1987 are set aside. The matter is remanded to the lower appellate court for fresh disposal in accordance with law. The appellate court shall frame points for determination, hear the parties, and decide the appeal afresh. No order as to costs.
Law Points
- Specific performance
- Order 41 Rule 31 CPC
- Remand
- Points for determination
- Concurrent findings
- Appellate court's duty
