1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVN. APPLICATION NO. 2 OF 2009 Mr.Nandlal Amarchand Shrishrimal ... Applicant v/s Smt.Jayashree Ravji alias Balasaheb Godse ... Respondent Mr.R.N.Sanghavi for the applicant. Mr.Mangesh Bansod i/by Law Loyals for the respondent. CORAM: SMT.NISHITA MHATRE, J. DATED: 3RD DECEMBER, 2009 P.C.: 1. The applicant is aggrieved by the orders passed by both the Trial Court as well as the District Court, Pune. 2. The main contention of the learned advocate for the appellant is that the Appellate Court has not framed points for consideration while deciding the issues. The only point framed for determination are, whether the order and decree 2 passed by the Trial Court is in accordance with law and sustainable and whether the plaintiff is entitled to the possession of the suit premises as sought from the defendant. 3. It appears that the Trial Court had decreed the suit on several grounds including (i) the bonafide requirement of the landlord of the suit premises, (ii) an alternate accommodation acquired by the defendant; (iii) the hardship likely to be caused to the parties if a decree is passed; and (iv) default in payment of rent. 4. On a perusal of the Appellate Court judgment, in my opinion, the learned Judge has incorrectly proceed with the matter. Points for determination have not been framed by him. The learned advocate for the applicant has rightly pointed out the judgments of this Court in the case of Vishwas Balu & ors. v/s Ghasiram Ramratan Jajum & ors., reported in A.I.R. 1975 Bom. 278, and in the case of Smt.Anita M. Barreto v/s Abdul Wahid Sanaullah, reported in 1985 (1) Bom.C.R. 130, wherein the learned Single Judges of this Court in the aforesaid judgments have observed that points for determination must be framed. In the case of Smt.Anita M. Barreto (supra), the learned Judge (R.A.Jahagirdar, J.) has observed as follows :- 3 “16. ............ Unfortunately the learned Assistant Judge framed the point for determination in such a vague and indeterminate manner that his attention was not brought to bear upon the relevant provisions 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 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 ? 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 appeal 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 4 decided on an issue framed in that manner. As early as in (Mhasu v. Davalat), 7 Bom.L.R. 174, 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 text book 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 was so stated is hardly a point for determination as contemplated in Order 41, Rule 31 of the Code. The learned Judge 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 appellate Court.” 5. In the present case, the appellate Court has failed to consider the appeal in the light of the aforesaid discussion. The salutary observations of R.A. Jahagirdar, J. in Smt.Anita M. Barreto’s case have been totally ignored by the Appellate Court. In my opinion, therefore, it would be appropriate to remand the appeal for a fresh hearing. 6. Accordingly, the appeal is remanded for a fresh hearing. 5 7. The appellate Court will frame points for determination as required in law and shall then dispose of the appeal in accordance with law within six months from today. 8. Civil revision application disposed of accordingly. 9. The stay which has been granted by this Court will continue during the pendency of the appeal. ..... 6