1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.660 OF 2008 Andrew Domnic Mendonza ..Petitioner V/s Inayat Khan Jan Mohd. Pathan & anr. ..Respondents Mr.Mandar Limaye, Advocate, for the petitioner Mr.P.K.Hushing, Advocate, for the respondent Nos.1 & 2 CORAM : R.M.SAVANT, J. DATE : 27TH JANUARY, 2009 P.C. . The above Civil Revision Application takes exception to the decree of possession passed by the Trial Court dated 11th July, 2005 and confirmed by the Appellate Court by the Judgment and Order dated 28th August, 2008. 2. Such of the facts which are necessary to be cited are stated thus. The petitioner was tenant of one room with attic admeasuring 200 Sq.feet situated at ground floor of house bearing No.169, Solapur 2 Bazar, Pune. The respondent No.1, who is now dead claimed to be the landlord of the premises in question, who filed a suit against the petitioner on the ground of non-user and bonafide requirement as contemplated under the provisions of the Bombay Rent Act, 1947. The said suit was decreed only on the ground of bonafide requirement. The petitioner herein filed an appeal and the respondent No.1 filed cross objections in respect of the ground of non-user. The Appellate Court in the said Appeal framed the following two issues. (i) Whether the impugned order passed by the Trial Court is in accordance with law and sustainable ? (ii) What order ? The Appellate Court confirmed the decree on the ground of bonafide requirement and dismissed the appeal filed by the petitioner as also dismissed the cross objections. As indicated above, the said decree passed on the ground of bonafide requirement is a subject matter of the above Civil Revision Application. I have heard Mr.Mandar Limaye, the learned counsel appearing for the petitioner and Mr.P.K.Hushing, the learned counsel appearing for the respondent Nos.1 & 2. On behalf of the petitioner it is submitted that in terms of 3 Order 41, Rule 3(A) of the Code of Civil Procedure, 1908, the Appellate Court has not framed the points for consideration but only framed a single issue as to whether the order of the Trial Court is accordance with law. The learned counsel prayed that the matter would to be remanded back to the Appellate Court in the light of the Judgments of a learned single Judge of this Court reported in 1984 Mh.LJ 931 in the matter of ANITA M. BARRETTO Vs. ABDUL WAHID SANAULLAH. Paragraphs 16 & 17 of the said Judgment are relevant and are reproduced here under :- “16. In the present case, I have already stated above that the learned Judge when he passed the order on 29th August, 1979 directing the tenant to deposit the rent did not either then or thereafter direct the tenant that if he failed to comply with the order which he had made, he would not be entitled to appear in and defend the suit. On the other hand, on a mere report received from the Nazir of the Court, the learned trial Judge straightaway proceeded to pass an order striking off the defence of the petitioner. The order is thus patently erroneous and not warranted by the provisions of section 11(4) of the Bombay Rent Act. As a result of this order, the petitioner was naturally precluded from approaching the learned Judge for asking for leave to defend which he could have done only if the order striking off the defence had been passed pursuant to a direction given under the second part of section 11(4) of the Bombay Rent Act. The decree passed on such an erroneous exercise of the jurisdiction by the learned trial Judge was liable to be set aside by the learned appellate Judge who, however, approached the case from a totally wrong point of view. If 4 the learned Judge by framing the point for determination properly had asked himself the right question, namely, as to whether the trial Court was justified in striking off the defence of the petitioner, then I am sure he would have addressed himself to the proper interpretation of section 11(4) of the Bombay Rent Act. Then he would not have confirmed the decree for possession passed by the Court of first instance. Unfortunately the learned Assistant Judge framed the point for determination in such a vague and indetermine manner that this attention was not brought to bear upon the relevant provision of law subject to which the Court of first instance had passed the impugned order. At this stage I am constrained to invite the attention of the courts below to the provisions of Order 41, rule 31 of the Code of Civil Procedure. This provision deals with the judgment of the Appeal Court and it says amongst other things that the judgment shall state the points for determination. When a requirement such as this is insisted upon by the procedural law of the land, one must try to understand the object and scope of this provision. Merely asking the question as to whether the judgment of the Court below is correct, legal or valid is hopelessly an inadequate method of meeting the requirement of this legal provision. I have with dismay noted several times in the judgments of the Appeal Courts below the points for determination being formulated in the following manner : (1) Is the judgment of the Court below liable to be set aside ? (2) Is the decree of the Court below liable to be interfered with ? (3) Is the decree of the Court below valid ? (4) Is the decree of the Court below proper and legal? 5 These are some of the ways in which the Courts of first appeal have tended to formulate the points for determination. 17. This manner ignores that Order 41 rule 31(a) requires the appellate Court to state in its judgment the points that arise for determination after the arguments are advanced. Asking such vague questions as mentioned above will not lead to the pronouncement of a well considered and reasoned judgment. Imagine a court of first appel being confronted with the judgment where an issue is framed as to whether the suit of the plaintiff should be decreed. All concerned will be at sea if a suit is decided on an issue framed in that manner. As early as in Mhasu Vs. Davalat, dealing with a similar provision in the earlier Civil Procedure Code, it has been pointed out that the object of the Legislature in making it incumbent on an appellate Court to raise points for determination was to clear up the pleadings and focus the attention of the Court and of the parties on the specific and rival contentions of the latter. The points which must arise for determination by a Court of first appeal must cover all important questions involved in the case and they should not be general and vague. It is a matter of almost textbook knowledge that the exact questions which arise in the appeal and require determination must be stated in the judgment. “It is not sufficient to state the point to be determined in appeal whether or not the decision is consistent with the merits of the case”. The point so stated is hardly a point for determination as contemplated in Order 41 rule 31 of the Code. The learned Judges of the Courts of first appeal should not approach the appeals merely from the point of speedily disposing of the same. The appeals must be also intelligently disposed of after taking note of the arguments advanced, the points arising from the arguments and other material and then deciding those points properly. A failure to understand the object of the provision such as Order 41 rule 31(a) of the Code has demonstrably resulted in the instant case in the failure of justice at the hands of the lower 6 appellate Court.” As also the Judgment of a learned Single Judge reported in 2003(4) Mh.LJ 853 in the matter of JANARDAN NAGO PATIL vs. RAMANAND RAMDAS MISHRA wherein the Judgment cited (supra) has been referred to and relied upon by the learned Single Judge. The learned counsel for the petitioner therefore submitted that in view of the fact that the points for consideration have not been framed by the Lower Appellate Court as held in the said two Judgments, remand is warranted. 3. On the other hand, Mr.P.K.Hushing, the learned counsel appearing for the respondents submitted that though the points for determination have not been framed, the Lower Appellate Court has considered the evidence as well as the law cited in respect of each of the ground i.e.ground of bonafide requirement as also the ground of non-user. The learned counsel drew my attention to the findings recorded by the Lower Appellate Court in various paragraphs of the Judgments of the Lower Appellate Court. 7 4. Having considered the rival contentions in my view, though the Lower Appellate Court appears to have considered the twin ground of non-user and bonafide requirement, no separate issues have been framed in that regard. The Lower Appellate Court only considered one issue namely whether the Order passed by the Trial Court is in accordance with law and sustainable. It is not enough for the Lower Appellate Court to have adverted to the said grounds without framing the points for determination. As held by the two learned Single Judges in the Judgments cited supra, the impugned order passed by the Appellate Court therefore on the said ground would have to be set aside. The Appeal would have to be remanded back to the Lower Appellate Court for a decision afresh, by the Appellate Court by framing the points for determination. On such remand, the Appellate Court to dispose of the Appeal within three months from date. Pending the decision of the appeal the interim protection granted by this Court on 3rd December, 2008 to continue. The Civil Revision Application is accordingly made absolute to the aforesaid extent. 8 (R.M.SAVANT, J.)