IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 44 OF 2005 SECOND APPEAL NO. 44 OF 2005 SECOND APPEAL NO. 44 OF 2005 Shri Mallikarjun Gurusidappa ... Appellant V/s. The Commissioner, Kolhapur Municipal Corporation & anr. ... Respondents Mr. T.D. Deshmukh for the Appellant. Mr. S.S. Patwardhan for the Respondents. CORAM : P.V. KAKADE, J. CORAM : P.V. KAKADE, J. CORAM : P.V. KAKADE, J. DATED : 13TH SEPT., 2005 DATED : 13TH SEPT., 2005 DATED : 13TH SEPT., 2005 P.C.: P.C.: P.C.: 1. Heard learned counsel for both parties. Perused the record. 2. In view of the facts and circumstances, Rule. Rule is made returnable forthwith by consent. 3. The following substantial question of law arises in this appeal:- (i) Whether the judgment of the Appellate Court is illegal on account of failure to frame proper points for determination under Order 41 Rule 31 of the Code of Civil Procedure Code, 1908 as due to failure of the Appellate Court to frame points for determination, prejudice has been caused to the 2 Appellant? 4. The Appellant is the Original Plaintiff. The dispute in this Suit is regarding increase in the quantum of rent by the Respondent Corporation in respect of the premises held by the Appellant Plaintiff. A notice was issued on 4.3.1996 by the Respondent Corporation demanding the rent at enhanced rate. The Trial Court dismissed the Suit filed by the Appellant-Plaintiff. In the Trial Court reliefs were prayed by the Appellant-Plaintiff based on judgments and decrees passed in Regular Civil Suit No. 243 of 1997 and in other connected Suits, which were filed by other parties against the Respondent Corporation. A contention was raised that the challenge in the said Suits was to a resolution passed by the Respondent Corporation and in the present suit filed by the appellant the same resolution is challenged. 5. The Appellate Court has framed only one point for determination, which is as under:- Whether the Judgment and order passed by the learned Trial Judge needs interference at the hands of this Court? 6. Apart from other legal submissions, the learned Advocate appearing for the Appellants submitted that the 3 appropriate points for determination were not framed. The contention of the Appellant is that effect of the judgments and decrees passed in Regular Civil Suit No. 243 of 1997 and other connected Suits are not considered by the Appellate Court. He submitted that the Appellate Court has not adverted to the reliefs claimed by the Appellant-Plaintiff in the Suit and without considering the reliefs claimed, the Appellate Court has erroneously applied the judgment of this Court reported in 1999 (1) 1999 (1) 1999 (1) Mh.L.J. 741 (Ulhasnagar Municipal Corporation v. M/s. Mh.L.J. 741 (Ulhasnagar Municipal Corporation v. M/s. Mh.L.J. 741 (Ulhasnagar Municipal Corporation v. M/s. Gulshan Contractors/Enterprises). Gulshan Contractors/Enterprises). Gulshan Contractors/Enterprises). 7. The learned counsel supported the impugned judgment and order and submitted that an efficacious remedy under the Bombay Provincial Municipal Corporations Act, 1949 is available to the Appellant. 7. On plain reading of the only point for determination framed by the Appellate Court, it is apparent that the Appellate Court has not performed its duty of framing appropriate points for determination arising from in the Appeal. It is true that failure to frame points for determination by itself is not a ground to interfere with the judgment and order of the Appellate Court, however, perusal of the judgment of the Appellate Court 4 shows that there is no consideration of all the contentions raised by the Appellant-Plaintiff. The Appellate Court has not at all considered the contentions of the parties based on the said issue. There is no indication in the judgment of the Appellate Court that the contention based on the said issue was not pressed by the Appellant. 8. Therefore, it is a case where a prejudice has been caused to the Appellant due to failure to frame appropriate points for determination arising in the Appeal. The Appellate Court was expected to frame appropriate points for determination. However, the Appellate Court framed only a general point for determination. The practice of framing such point is already deprecated by this Court in reported Judgments. Hence a case is made out for remanding the Appeal to the First Appellate Court. 9. Hence, I pass the following order:- I. The impugned Judgment and Decree dated 16.7.2004 is quashed and set aside. 5 II. Regular Civil Appeal No. 139 of 1998 is restored to file. III. Parties are directed to appear before the learned District Judge, Kolhapur on 10th October, 2005 for fixing the date of hearing of the Appeal. IV. The learned District Judge will decide the Appeal after framing appropriate points for determination. The Appeal shall be decided as expeditiously as possible, preferably on or before March, 2006. V. All contentions of the parties on merits of the Appeal are expressly kept open. VI. If there was any interim relief operating during the pendency of the Appeal before the First Appellate Court, the same will continue to operate till the disposal of the Appeal. VII. The Appeal is partly allowed in above terms with no order as to costs. VIII. Parties and the concerned Court to act on an 6 authenticated copy of this order. ......