1 S.A.192/2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY. CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.192 OF 2010 Shri.Ankush Arjun Salgar .. Appellant V/s Shri.Chauranginath Mahadev Lokare & Ors. .. Respondents Mr.S.U.Dhakephalkar, Advocate for the Appellant. Mr.S.D.Patil, Advocate for the Respondents. CORAM: R.G.KETKAR, J. DATE : 18th February, 2011. P.C.: 1. Heard Mr.Sachin Dhakephalkar, learned counsel for the Appellant. The original Defendant No.2 has preferred this Second Appeal challenging the judgment and decree dated 31.3.2008 passed by the learned Principal District Judge, Solapur in Regular Civil Appeal No. 181 of 2002, as also the judgment and decree dated 16.1.1989 passed by the learned Civil Judge, Junior Division, Madha, in Regular Civil Suit No.24 of 1979. By these decisions, the Courts below decreed the suit instituted by the Respondent No.1, hereinafter referred to as the Plaintiff for specific performance of the contract dated 22.11.1976. 2. The land bearing Gat No.55 admeasuring 80 R situate at village 2 S.A.192/2010 Malegaon, Taluka Madha, District Solapur is the subject matter of the present proceedings. The said land was owned and possessed by Respondent No.2 hereinafter referred to as Defendant No.1. The Defendant No.1 agreed to sell the said land to the plaintiff for Rs. 3000/- and accepted Rs.1900/- by way of earnest money. It is the case of the plaintiff that on 22.11.1976 the Defendant No.1 accepted Rs.100/- from the plaintiff and executed the registered agreement of sale in his favour. It is the case of the plaintiff that he was always ready and willing to perform his part of the contract by paying the balance consideration and Defendant No.1 was to obtain the requisite permission for execution of the sale deed and upon receipt of the said permission, she was to execute the sale deed within one month. However, Defendant No.1 executed the sale deed in favour of the Defendant No.2 on 12.9.1978. He therefore instituted the present suit for specific performance of the agreement of sale dated 22.11.1976. 3. The Defendant No.1 resisted the suit by filing the written statement at Exh.15. She also denied the execution of the agreement of sale. According to her, the plaintiff is engaged in money lending business illegally and without licence and she was in need of loan of Rs. 3 S.A.192/2010 2000/-. In short it was her case that the transaction was towards the security of the loan advanced by the plaintiff. Though she had repaid the amount together with interest, she did not insist for the receipt as the plaintiff is her relative. She further asserted that she had sold the suit land to Defendant No.2 for Rs.4000/- on 12.9.1978. 4. The Defendant No.2 filed written statement at Exh.11 and denied assertions made in the plaint. He further contended that he is a bonafide purchaser for value without notice and consequently, prayed for dismissal of the suit. 5. On the basis of pleadings of the parties, the learned trial Judge framed the necessary issues. He came to the conclusion that the plaintiff proved that the Defendant No.1 agreed to sell the said land to him for Rs.3000/- and that the plaintiff further proved that the Defendant No.1 executed registered agreement of sale on 22.11.1976 in his favour. In so far as the defence raised by Defendant No.2 that he is a bonafide purchaser for value without notice is concerned, the learned trial Judge held that the Defendant No.2 did not establish the said defence, inasmuch as though the burden of proof was on the Defendant No.2 to substantiate the said plea, he failed to adduce any evidence. Consistent with these findings, the learned trial Judge 4 S.A.192/2010 dismissed the suit. Aggrieved by this decision, the Defendant No.2 preferred Regular Civil Appeal No.181 of 2002 which was dismissed by the learned District Judge. It is against these two decisions, the Defendant No.2 has preferred this Second Appeal. 6. Mr.Dhakephalkar, learned counsel for Defendant No.2 submitted that the contents of agreement of sale dated 22.11.1976 are not proved by the plaintiff. In support of this submission, he relied upon the judgment of this Court in the case of Prakash Cotton Mills Private Ltd.v/s.Municipal Commissioner for Gr.Bombay and Another, AIR 1982 Bom.387. He further submitted that the leaned District Judge did not frame points for determination, which is a mandatory requirement under Order 41 Rule 31 of the Code of Civil Procedure, 1908. In support of this proposition, he relied upon the judgment of this Court in the case of Anita V/s.Abdul, 1984 Mh.L.J.931 and contended that since the learned District Judge did not frame the points for determination, it has resulted in failure of justice at the hands of the first Appellate Court. I have considered the submissions advanced by the learned counsel for the appellant. 7. It is not in dispute that the Defendant No.1 executed registered agreement of sale in favour of the plaintiff on 22.11.1976. In 5 S.A.192/2010 paragraph No.8 of the judgment, the learned District Judge considered the evidence of PW2 Narayan Lokare who deposed that one Gafoor had scribed the sathekhat on his instructions. The contents of sathekhat were read over to all the concerned parties. and in particular Defendant No.1 Vimal and her husband. They accepted the ccontents of sathekhat as true and correct and thereafter Defendant No.1 signed the sathekhat in his presence. He further deposed that he had scribed his thumb impression on the sathekhat at Exh.41. PW3-Dnyandev Kulkarni deposed that the Defendant No.1- Vimal had agreed to sell the suit land for Rs.3000/- and the plaintiff had paid Rs.1900/- to Defendant No.1 in his presence. The evidence of these witnesses remained unchallenged and un-rebutted by any other evidence. In view thereof, I do not find any substance in the submission made by the learned counsel for the appellant-original Defendant No.2 that the contents of the agreement of sale at Exh.41 were not proved. 8. Shri.Dhakephalkar contended that the first Appellate Court did not frame the points for determination. He placed reliance on the decision in the case of Anita V/s.Abdul (supra). In that case, the Respondent landlord had instituted suit under the Bombay Rents, 6 S.A.192/2010 Hotel and Lodging House Rates Control Act, 1947 for recovery of rent with a claim for possession of the premises from the petitioner tenant. On 4.8.1979, the Respondent made an application u/s.11(4) of the Bombay Rent Act, requesting the Court for issuing direction that the petitioner should pay all the arrears of rent @ Rs.50/- p.m. forthwith, failing which, his defence may be struck off and he may not be permitted to appear and defend the suit. On the same day, the learned trial Judge directed the petitioner to pay interim rent @ Rs. 50/- p.m. exclusive of all other charges. The petitioner was directed to deposit the amount in Court on our before 15.9.1979, and all the arrears of rent at that rate for the period from 1.12.1977 till 31.8.1979, and continue to deposit the future rent at that rate on or before 15th of every subsequent month. The learned trial Judge while passing the order did not indicate anywhere in the order what the consequences of non compliance of that order, would be. It appears that the nazir of the Court submitted report on 15.9.1979 and the learned trial Judge noted that the petitioner had not complied with the orders of the Court passed earlier. He therefore ordered striking off of the defence of the petitioners. The learned trial Judge decreed the suit on 26.10.1979. The petitioners preferred appeal and the learned 7 S.A.192/2010 District Judge formulated the point as to whether the judgment and decree of the trial Court is liable to be set aside. By judgment and order dated 30.8.1980, the learned District Judge dismissed the appeal. 9. In paragraph No.7 of that report, this Court held that the decree passed by the trial Court itself was illegal and the first Appellate Court totally mis-directed itself on the scope of the appeal, which was in turn, based entirely on the fact of striking off of the defence of the petitioner. This Court also recorded that there was a total mis- understanding on the part of the Courts below of the scope of the provisions contained u/s.11(4) of the Bombay Rent Act. In paragraph No.12 of that report, it was held that mere non-compliance with the order passed by the Court relating to the deposit of the amount, will not automatically result in the striking off of the defence of the tenant, unless prior to the stage of striking off of the defence, the Court by order directs further that if the tenant fails to comply with the order made for payment, he shall not be entitled to appear in or defend the suit. Paragraph No.17 of the judgment reads as under:- “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 8 S.A.192/2010 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 decided on an issue framed in that manner. As early as in Mhasu Vs.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 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 appellate Court.” 10.In the case of Sangram Singh v/s.Election Tribunal, Kotah and Anr., 1955 (2) SCR 1, the Apex Court has observed as under:- “Now a code of procedure must be regarded as such. It is ‘procedure’, something designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of Section that leaves no room for reasonable elasticity of interpretation should therefore, be guarded against (provided 9 S.A.192/2010 always that justice is done to ‘both’ sides) lest the very means designed for the furtherance of Justice be used to frustrate it.” 11.In the case of Thakur Sukhpal Singh v/s.Thakur Kalyan Singh and Anr., 1963 (2) SCR 733, the Apex Court observed as under:- “The provisions of Rule 31 should therefore be reasonably construed and should be held to require the various particulars to be mentioned in the judgment only when the appellant has actually raised certain points for determination by the appellate Court, and not when no such points have been raised as had been the case in the present instance when the appellant did not address the Court at all.” “The view that we take, also finds support from the object which the Legislature probably had in providing that the judgment must contain the matters mentioned in Rule 31. The object seems to be that the parties should know for what reasons the decision has gone against them, and thereby, be in a position to decide whether they should go up in appeal or revision against the judgment. If they do not know the decision, and the reasons therefore, they cannot make up their mind, and even if they have no intention to go up in appeal, they may not even be satisfied about the Court considering the matter for determination properly.” 12.In the case of Vatsalabai &Ors. V/s.Madhaorao Laxmanrao Thakare, 2005 (1) Mh.L.J.980, the learned Single Judge of this Court in Paragraph Nos.18 and 19 has observed as under:- “18. Upon examination of the submissions referred to above and discussion of judgments relied upon by appellants, I have come to a conclusion that the appellate Court’s judgment cannot be regarded to be fallible on account of failure to formulate and address upon all the issues. As referred to in this judgment, the question being examined at the time of reversal of the decree, would always be whether such reversal being done on account of 10 S.A.192/2010 any technicality. It shall be useful to refer section 99, Civil Procedure Code which is quoted below for reference: “99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction: - No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder or non- joinder of parties or causes of action of any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court: Provided that nothing in this section shall apply to non-joinder of a necessary party.” It is, thus, obvious that a judgment of 1st appellate Court as well is not liable to be set aside on account of any error or defect or irregularity in any suit or appellate proceedings or judgment “not affecting the merits of the case or the jurisdiction of the Court.” Section 99, Civil Procedure Code has been interpreted by various High Courts from Privy Council and the Hon’ble Supreme Court, as well. The construction thereof is impelled for avoiding unnecessary cost and inconvenience to the litigant as well as avoiding the situation of setting aside the judgment on account of technicality when the judgment and decree otherwise does not affect the merits of the case. It shall be useful to simply refer to the judgment on this point and shall not be necessary to discuss each one in detail. It shall suffice only to refer to certain precedents on Section 99, Civil Procedure Code namely:- (i) AIR 1937 Privy Council 233, Muhammad Husain Khan and Others v/s.Babu Kishva Nandan Sahai, (ii) AIR 1954 SC 340, Kiran Singh and Others v/s.Chaman Paswan and Others, (iii) AIR 1965 SC 1812, R.S.Maddanappa v/s.Chandramma and Another, (iv) 1969 Mh.L.J.(SC) 367= AIR 1969 SC 255, Chaturbhuj Pande and Others v/s.Collector and (v) AIR 1979 Kerala 1 (FB), George v/s.Thekkekkara Vereed. 19. It is, therefore, liable to be held that in the present case, the appellate Court’s judgment is not liable to be regarded as illegal or otherwise contrary to the principles of justice and suffering from non-application of mind on account of its failure to comply with Order XLI, Rule 31 of Civil Procedure Code. It is also 11 S.A.192/2010 considered necessary to record that in view of Section 99 of Civil Procedure Code, the judgment impugned is not liable to be reversed on account of the said failure as the appellant has failed to demonstrate that the judgment and decree under appeal are wrong on merits and resulting in injustice........” 13.In the light of the aforesaid rulings, whether it can be said that the learned District Judge committed error in not framing the points for determination under Order 41 Rule 31 of the Code of Civil Procedure. Perusal of Paragraph no.4 of the judgment of the learned District Judge shows that initially the Respondent No.1-plaintiff’s suit was decreed on 19.8.1983. The Defendant No.2 preferred Civil Appeal No.628 of 1984. The appeal was allowed and the trial Court’s judgment and decree was set aside. The suit was remanded for a fresh trial in order to offer an opportunity to the contesting Defendant No.2 Ankush to lead evidence in the suit. The directions were also issued to give an opportunity to Defendant No.2 Ankush to cross-examine the plaintiff and his witnesses and to lead his evidence, if any. The Defendant No.2 did not avail of this opportunity and he did not lead any evidence to counter the evidence that was led by the Respondent No.1-plaintiff. 14.Perusal of Paragraph No.5 & 6 of the judgment, indicates that the learned District Judge considered the submissions as to whether the 12 S.A.192/2010 Appellant-Defendant No.2 can be considered as a bonafide purchaser for value without notice and also whether the contents of agreement of sale dated 12.11.1976 were proved. In Paragraph No.8 of the judgment, the learned District Judge came to the the conclusion that the contents of the agreement of sale have been proved. In so far as submission of the Defendant No.2 that he is a bonafide purchaser for value without notice, in Paragraph No.9 he recorded a finding that there was merit in the submission made on behalf of the Respondent No1- plaintiff that with the registration of the agreement of sale Exh. 41, there was a constructive notice about the said transaction and consequently, the Defendant No.2 cannot claim that he was a bonafide purchaser of the suit land for value without notice. In view of deposition of PW1 Chauranginath Lokare showing his readiness and willingness to pay the remaining amount of Rs.1000/- and perform his part of contract, in Paragraph No.10 of the judgment, the learned District Judge came to the conclusion that the plaintiff is ready and willing to perform his part of the contract. 15.From the aforesaid discussion, it is clear that though the Appellate Court has not framed the points for determination, but has actually decided the points raised. In my opinion, when the Appellate Court 13 S.A.192/2010 has considered all the issues and given the reasoning, it cannot be said that the provisions of Order 41 Rule 31 are violated. In my opinion, there is substantial compliance of the requirements of Order 41 Rule 31 of the Code of Civil Procedure and it cannot be said that the judgment of the learned District Judge is vitiated only because the points for determination were not framed. The provisions of Order 41 Rule 31 requiring formulation of the points for determination are procedural and not substantial provisions and substantial compliance thereof is enough. The Courts below have concurrently recorded the findings of facts, based upon the appreciation of evidence. 16.In the light of above discussion, no substantial question of law arises in the present second appeal and the same is dismissed. In view thereof, Civil Application No.1202 of 2009 does not survive and the same is dismissed. (R.G.KETKAR, J.)