KANAIYALAL SHAMBHUBHAI VEKARIYA Applicant(s)V/[ENTITY] Opponent(s) C/CRA/[SECTION]9/2011 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION NO. [SECTION]9 of 2011 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE [ENTITY] 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? [ENTITY] Appearance: MR [ENTITY], ADVOCATE for the Petitioner MR [ENTITY], ADVOCATE for the Respondent No. 1 MR [ENTITY], ADVOCATE for the Respondent No. 1 CORAM: HONOURABLE MR.JUSTICE [ENTITY] Date : 07/02/2013 ORAL JUDGMENT
1. By way of the present Revision Application under [SECTION] of the [ACT] ( the [ACT] for short), the original defendant-tenant has challenged the judgment and order dated 8.09.2011 passed by learned 3rd Additional District Judge, Rajkot, in [CASE NUMBER], by which, the Appellate Court has quashed and set aside the judgment and order dated 30.6.2009 passed by the learned 3rd Additional Judge, Small Causes Court, Rajkot, in [CASE NUMBER] and the matter was remanded back to the Trial Court for particular issues regarding sub-letting of the disputed property by the tenant, tenant was in arrears of rent as well as readiness and willingness to pay the rent to the landlord.
2. The brief facts emerges from the record of the case are as under:
That the present respondent, who is landlord of the suit premises, known as Purneshwari , situated on Mavdi Road, Rajkot City, filed a [CASE NUMBER], against the present petitioner being his tenant, in the Small Causes Court at Rajkot and prayed for a decree of eviction on the ground that the tenant was irregular in making payment of rent and therefore the tenant has committed breach of terms and conditions of the Rent Note and has acted contrary to the provisions of [SECTION] of the [ACT]. It is the further case of the plaintiff respondent/landlord that the petitioner defendant/tenant has sublet and/or transfer and assigned the suit premises illegally to third party. It was alleged by the landlord that the tenant was in arrears of rent as well as amount of taxes for a period of more than six months and therefore, he was entitled for the possession of the suit premises under [SECTION] of the [ACT].
That it is pertinent to note at this stage that prior to filing of the suit, the defendant tenant had filed a [CASE NUMBER] and has raised a dispute with regard to fixing of the standard rent. Thereafter, during the pendency of the said application, the defendant-tenant had filed an Application at Exhibit-24 and prayed to consolidate the application with the suit filed by the plaintiff landlord which was granted by the Trail Court. Accordingly, the suit as well as the application filed by the defendant tenant were heard together by the learned Trial Judge.
2.3 That the suit was opposed by the tenant by filing a written-statement. Learned Trial Judge, after considering the pleadings on record, framed issues at Exhibit-48. The parties were examined the witnesses and certain documents were proved. After considering the case of both the sides, learned Trial Judge came to the conclusion that the landlord has failed to establish that the case would fall within the definition of [SECTION] of the Act, and therefore, dismissed the suit by its judgment and order dated 30.6.2009.
2.4 That feeling aggrieved, the landlord challenged the said decision of the learned Trial Judge by way of preferring an appeal, being [CASE NUMBER] in the Court of Additional District Judge, Rajkot. The learned 3rd Additional District Judge, Rajkot, after raising points for determination, by judgment and order dated 8.09.2011 allowed the Appeal of the respondent landlord and quashed and set aside the judgment and order dated 30.6.2009 passed by the learned Additional Judge, Small Causes Court, Rajkot, in [CASE NUMBER] and the matter was remanded back to the Trial Court for deciding particular issues, namely, (i) sub-letting of the disputed property by the tenant; (ii) tenant was in arrears of rent and (iii) readiness and willingness to pay the rent to the landlord, are to be looked into and dealt with and decree to be drawn accordingly. Hence the present Revision Application by the original defendant-/tenant.
Mr. [ENTITY], learned Advocate, appearing for the petitioner-tenant has raised the contention with regard to the manner in which the lower Appellate Court has disposed of the appeal by writing a judgment contrary to the provisions of the [ACT] (hereinafter referred to as the Code for short) as well as the [ACT]. He submitted that the lower Appellate Court has not framed any point for determination in accordance with [SECTION], [SECTION], [SECTION] and [SECTION] as well as [SECTION] of the [ACT]. He has further submitted that it is a settled legal position that the first appeal has to be decided strictly in adherence with the provisions contained in [SECTION], [SECTION] of the Code. It is further submitted that the lower Appellate Court, being the first appellate court, must give reasons for its decision on each point independently. Lastly, it is submitted that the Lower Appellate Court has failed to comply with the provisions of [SECTION], [SECTION], [SECTION] and [SECTION] as well as [SECTION] of the [ACT].
3.1 Mr.[ENTITY], learned Advocate for the petitioner, in support of his submission has relied upon a decision of the Supreme Court, in the case of [ENTITY] (dead) by LRs. Vs. A Ramalingam, as reported at 2011 (2) GLR [SECTION]29 and submitted that the Honble Apex Court has, after relying upon several decisions, held that, if, the first Appellate Court s judgment is based on the independent assessment of the relevant evidence on all important aspects of the matter and the findings of the appellate Court are well founded and quite convincing and such an exercise should be done after formulating the points for determination in terms of the said provisions and the court must proceed in adherence to the requirements of the said statutory provisions.
3.2 Mr.[ENTITY], learned Advocate for the petitioner, has further submitted that paragraph- 4[SECTION] of the [ACT] is of obligatory nature and the appellate court is bound to frame suitable points for determination in appeals in accordance with the same principles on which issues are framed by the Trial Court. He has further submitted that this exercise has not been undertaken by the appellate Court.
3.3 Mr.[ENTITY], learned Advocate for the petitioner, therefore, submitted that the impugned judgment and order passed by the lower Appellate Court be quashed and set aside and the matter be remanded to the lower Appellate Court for fresh consideration in accordance with law after framing points for determination in accordance with [SECTION], [SECTION], [SECTION] and [SECTION] as well as [SECTION] of the [ACT].
4. On the other hand, Mr.[ENTITY] with Mr. [ENTITY], learned Advocates appearing on behalf of the respondent - landlord has opposed the submissions made by learned Advocate for the petitioner and supported the impugned judgment and order passed by the lower appellate Court. He further submitted that the first Appellate Court has considered the case on merits and the judgment and order passed by the lower Appellate Court is just, legal and proper and the same would not stand vitiated merely because points of determination have not been formulated by the lower Appellate Court and, therefore, there is no need to remand the case for fresh consideration to the first Appellate Court.
5. I have heard Mr. [ENTITY], learned Advocate, appearing for the petitioner and Mr.[ENTITY], learned Advocate, appearing for the respondent. It is apparent from the main grounds, on which the impugned judgment and order passed by the lower Appellate Court has been assailed, that the same does not meet with the requirements of the provisions of [SECTION], [SECTION], [SECTION] and [SECTION] as well as [SECTION] of the [ACT]. The lower appellate court has formulated a single point for its determination, which is reproduced as under:
(i) Whether the judgment and decree of the Trial Court required to be interfered with?
What Order?
6. Now considering the point which is formulated by the lower Appellate Court, I am of the opinion that, the lower Appellate Court has committed error in not properly formulating the points for determination. The lower Appellate Court ought to have framed points for determination in accordance with [SECTION], [SECTION], [SECTION] and [SECTION] as well as [SECTION] of the [ACT] and ought to have given reasons for its decision on each point independently. The Apex Court in the case of [ENTITY] (dead) by LRs. (supra) in the context of [SECTION] observed in paras 21 and 22 as under:
21. The said provisions provided guidelines for the appellate Court as to how the Court has to proceed and decide the case. The provisions should be read in such a way as to require that the various particulars mentioned therein should be taken into consideration.
Thus, it must be evident from the judgment of the appellate Court that the Court has properly appreciated the facts/evidence, applied its mind and decided case considering the material on record. It would amount to substantial compliance of the said provisions if the appellate Court's judgment is based on the independent assessment of the relevant evidence on all important aspect of the matter and the findings of the appellate Court are well founded and quite convincing. It is mandatory for the appellate Court to independently asses the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final Court of fact, the first appellate court must not record mere general expression of concurrence with the trial Court judgment rather it must give reasons for its decision on such point independently to that of the trial Court. Thus, the entire evidence must be considered and discussed in detail. Such exercise should be done after formulating the points for consideration in terms of the said provisions and the Court must proceed in adherence to the requirements of the said statutory provisions. (Vide: Sukhpal Singh v. Kalyan Singh, AIR 1963 SC [SECTION]6; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; and [PRECEDENT].
22. In B.V. Nagesh v. H.V. Sreenivasa Murthy, JT 2010 (10) SC 551: 2010 (13) SCC 530, while dealing with the issue, this Court held as under:
4. The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case therein is open for re-hearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth and pressed by the parties for decision of the appellate Court. Sitting as a Court of appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings.
The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide : [PRECEDENT] and [PRECEDENT].
7. A similar view was taken by this Court in the case of [PRECEDENT]; in the case of [PRECEDENT] as well as in the case of [PRECEDENT].
8. In view of above settled principle of law, while delivering the judgment, the first Appellate Court is required to substantially comply with the provisions of [SECTION] of the Code. In the present case, on mere perusal of the impugned judgment and order of the lower Appellate Court, it is abundantly clear that the lower Appellate Court has failed to discharge the obligation placed on it as a first Appellate Court. In my opinion, the judgment and order of the lower Appellate Court deserves to be quashed and set aside and the case is required to be remanded to the lower Appellate Court for considering the same afresh on merits and in accordance with law after framing points for determination in accordance with [SECTION], [SECTION], [SECTION] and [SECTION] as well as [SECTION] of the [ACT].
9. In the result, the present Revision Application succeeds. The impugned judgment and order dated 8.09.2011 passed in [CASE NUMBER] by the learned Third Additional District Judge, Rajkot, is hereby quashed and set aside and the matter is remanded to the lower Appellate Court to decide the same afresh on merits and in accordance with law after formulating proper points for determination. Accordingly, [CASE NUMBER] shall stand restored to file. The lower appellate Court shall decide the Appeal, as expeditiously as possible, preferably, within a period of six months from the date of receipt of this order, after affording an opportunity of hearing to the learned Advocates for the respective parties. The petitioner - tenant shall deposit the rent before the lower appellate court during the pendency of the Appeal. It is made clear that the present Revision Application is not decided on merits of the case but has been remanded only on the ground referred to herein above. Rule is made absolute to the aforesaid extent only. There shall be no order as to costs. Interim relief, granted if any, shall stand vacated forthwith.
Registry is directed to remit the Record and Proceedings to the lower Appellate Court forthwith.
( ([ENTITY], J.) pnnair Page of 11