Counsel for Respondent(s) vs Shanker Tewari, Sheo Pal Singh,

2. Learned counsel for the appellant is present, whereas learned counsel for the respondents is not present.

3. The ordersheet reveals that on 18.02.2025, the case was called in the revised list. Learned counsel for the appellant was present but learned counsel for the respondents was neither present nor any request for the adjournment of the case was made on his behalf. Thereafter, the case was listed on 27.02.2025. On that date, a request was made on behalf of the respondents for the adjournment of the case as his paper book was not traceable. On 07.03.2025, case was called in the revised list. Learned counsel for the appellant was present whereas, learned counsel for respondents was neither present nor any request for the adjournment of the case was made on his behalf and the court had specifically mentioned that "On the next date, if the counsels for the respondents will not appear, the matter will not be adjourned.".

4. On 07.07.2025, learned counsel for the respondents appeared and made a request before the court that he will argue the case on the next date. The matter was again adjourned on his request. The case was thereafter listed on

14.08.2025. On that date, the case was called in the revised list. Learned counsel for the appellant was present, but no one had put in appearance on behalf of the respondents. The case was listed yesterday, i.e. on 02.09.2025. Shri Pradeep Kumar Yadav, Advocate holding brief of Shri Anirudh Prasad prayed for listing of the present appeal tomorrow i.e. 03.09.2025 for making his submissions and the court had passed an order that already on several 2 SAPL No. 51 of 1998 occasions, stop orders have been passed due to the non-appearance of the respondents and fixed this case for today i.e. 03.09.2025, with an observation that the matter will not be adjourned and appropriate orders will be passed even in the absence of the respondents.

5. When the case has been taken up today, in the revised list, learned counsel for the respondents is neither present nor any request for the adjournment of the case has been made on his behalf, hence, the court has proceeded to hear the matter.

6. Learned counsel for the appellant has submitted that the present appeal has been preferred against the judgment and order dated 03.09.1997, passed in the first appeal by formulating seven substantial questions of law and this court had admitted the second appeal on the following substantial question of law. " Whether non-compliance of mandatory provision of order 41 Rule 31 C.P.C vitiates the appellate judgment."

7. The brief facts of the case are that a suit for permanent injunction and mandatory injunction was filed by the appellant Surya Nath against the respondent Phool Kali (now deceased) and her legal heirs have been substituted. There was a dispute regarding ingress and outgress of the appellant/plaintiff to the well which was restricted by the respondents by raising a wall and making encroachment on the area where the cattles were kept by the appellant/plaintiff. The suit was partly decreed by order dated

23.11.1985 and the relief claimed in the suit regarding the area where the cattles were kept was denied. Feeling aggrieved by the same, First appeal was preferred by the appellant, which was decided by order and judgment dated 30.09.1997, upholding the judgment of the trial court dated 23.11.1985.

8. Learned counsel for the appellant has further submitted that the first appellate court had not framed the point of determination as mandatorily required under Order 41 Rule 31 C.P.C. In support of his submission, learned counsel for appellant has relied upon the judgment of the Hon'ble Supreme Court in the case of Somakka (dead) by legal representatives versus K.P Basavaraj (dead) by legal representatives.

9. After hearing learned counsel for the appellant and going through the records of the case, it is found that while deciding the appeal, the first appellate court had not framed any point of determination as required under Order 41 Rule 31 C.P.C. Hence, there is no question to take a decision thereon. In the judgment impugned in the present second appeal, it is found that in place of framing the points of determination, the first appellate court 3 SAPL No. 51 of 1998 had mentioned the issues as framed by the trial court by its order dated

04.04.1979 and decided the same as per the finding given by the trial court, without framing the points of determination in the first appeal, which is mandatorily required as per Order 41 Rule 31 C.P.C.

10. The judgment relied by learned counsel for the appellants in the case of Somakka (supra), wherein the Hon'ble Supreme Court has held that the first appellate court is required to comply with the requirements of Order 41 Rule 31 C.P.C and non-observance of this requirement led to infirmity in the judgment. The relevant paragraph no. 32.4 is quoted hereinbelow:- " 32.4. Very recently, this Court in 2022 (to which one of us, Brother Abdul Nazeer, J. was a member) in Manjula v. Shyamsundar, reiterated the same view in para 8 thereof, which is reproduced hereunder: "8. Section 96 of the Civil Procedure Code, 1908 (for short "C.P.C") provides for filing of an appeal from the decree passed by a court of original jurisdiction. Order 41 Rule 31 CPC provides the guidelines to the appellate court for deciding the appeal. This rule mandates that the judgment of the appellate court shall state: (a) points for determination; (b) the decision thereon; (c) the reasons for the decision; and relief to which the appellant is entitled. (d) where the decree appealed from is reversed or varied, the relied to which the appellant is entitled. Thus, the appellate court has the jurisdiction to reverse or affirm the findings of the trial court. It is settled law that an appeal is a continuation of the original proceedings. The appellate court's jurisdiction involves a rehearing of appeal on questions of law as well as fact. The first appeal is a valuable right, and, at that stage, all questions of fact and law decided by the trial court are open for reconsideration. The judgment of the appellate court must, therefore, reflect conscious application of mind and must record the court's findings, supported by reasons for its decision in respect of all the issues, along with the contentions put forth and pressed by the parties. Needless to say, the first appellate court is required to comply with the requirements of Order 41 Rule 31 C.P.C and non-observance of these requirements lead to infirmity in the judgment."

11. Similarly is the position in the present case that a perusal of the judgment of the first appellate court indicates that it decided the case without framing the 4 SAPL No. 51 of 1998 point of determination, hence the judgment passed by the first appellate court is not tenable in the eyes of law and hence the judgment and order dated

30.09.1997 passed by the first appellate court is hereby set aside.

12. The appeal is allowed.

13. The matter is remanded to the first appellate court to decide the same as per Order 41 Rule 31 C.P.C, afresh, expeditiously. September 3, 2025 DiVYa (Manish Kumar,J.) DIVYA SINGH DIVYA SINGH High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, Lucknow Bench Lucknow Bench

2. Learned counsel for the appellant is present, whereas learned counsel for the respondents is not present.

3. The ordersheet reveals that on 18.02.2025, the case was called in the revised list. Learned counsel for the appellant was present but learned counsel for the respondents was neither present nor any request for the adjournment of the case was made on his behalf. Thereafter, the case was listed on 27.02.2025. On that date, a request was made on behalf of the respondents for the adjournment of the case as his paper book was not traceable. On 07.03.2025, case was called in the revised list. Learned counsel for the appellant was present whereas, learned counsel for respondents was neither present nor any request for the adjournment of the case was made on his behalf and the court had specifically mentioned that "On the next date, if the counsels for the respondents will not appear, the matter will not be adjourned.".

4. On 07.07.2025, learned counsel for the respondents appeared and made a request before the court that he will argue the case on the next date. The matter was again adjourned on his request. The case was thereafter listed on

14.08.2025. On that date, the case was called in the revised list. Learned counsel for the appellant was present, but no one had put in appearance on behalf of the respondents. The case was listed yesterday, i.e. on 02.09.2025. Shri Pradeep Kumar Yadav, Advocate holding brief of Shri Anirudh Prasad prayed for listing of the present appeal tomorrow i.e. 03.09.2025 for making his submissions and the court had passed an order that already on several 2 SAPL No. 51 of 1998 occasions, stop orders have been passed due to the non-appearance of the respondents and fixed this case for today i.e. 03.09.2025, with an observation that the matter will not be adjourned and appropriate orders will be passed even in the absence of the respondents.

5. When the case has been taken up today, in the revised list, learned counsel for the respondents is neither present nor any request for the adjournment of the case has been made on his behalf, hence, the court has proceeded to hear the matter.

6. Learned counsel for the appellant has submitted that the present appeal has been preferred against the judgment and order dated 03.09.1997, passed in the first appeal by formulating seven substantial questions of law and this court had admitted the second appeal on the following substantial question of law. " Whether non-compliance of mandatory provision of order 41 Rule 31 C.P.C vitiates the appellate judgment."

7. The brief facts of the case are that a suit for permanent injunction and mandatory injunction was filed by the appellant Surya Nath against the respondent Phool Kali (now deceased) and her legal heirs have been substituted. There was a dispute regarding ingress and outgress of the appellant/plaintiff to the well which was restricted by the respondents by raising a wall and making encroachment on the area where the cattles were kept by the appellant/plaintiff. The suit was partly decreed by order dated

23.11.1985 and the relief claimed in the suit regarding the area where the cattles were kept was denied. Feeling aggrieved by the same, First appeal was preferred by the appellant, which was decided by order and judgment dated 30.09.1997, upholding the judgment of the trial court dated 23.11.1985.

8. Learned counsel for the appellant has further submitted that the first appellate court had not framed the point of determination as mandatorily required under Order 41 Rule 31 C.P.C. In support of his submission, learned counsel for appellant has relied upon the judgment of the Hon'ble Supreme Court in the case of Somakka (dead) by legal representatives versus K.P Basavaraj (dead) by legal representatives.

9. After hearing learned counsel for the appellant and going through the records of the case, it is found that while deciding the appeal, the first appellate court had not framed any point of determination as required under Order 41 Rule 31 C.P.C. Hence, there is no question to take a decision thereon. In the judgment impugned in the present second appeal, it is found that in place of framing the points of determination, the first appellate court 3 SAPL No. 51 of 1998 had mentioned the issues as framed by the trial court by its order dated

04.04.1979 and decided the same as per the finding given by the trial court, without framing the points of determination in the first appeal, which is mandatorily required as per Order 41 Rule 31 C.P.C.

10. The judgment relied by learned counsel for the appellants in the case of Somakka (supra), wherein the Hon'ble Supreme Court has held that the first appellate court is required to comply with the requirements of Order 41 Rule 31 C.P.C and non-observance of this requirement led to infirmity in the judgment. The relevant paragraph no. 32.4 is quoted hereinbelow:- " 32.4. Very recently, this Court in 2022 (to which one of us, Brother Abdul Nazeer, J. was a member) in Manjula v. Shyamsundar, reiterated the same view in para 8 thereof, which is reproduced hereunder: "8. Section 96 of the Civil Procedure Code, 1908 (for short "C.P.C") provides for filing of an appeal from the decree passed by a court of original jurisdiction. Order 41 Rule 31 CPC provides the guidelines to the appellate court for deciding the appeal. This rule mandates that the judgment of the appellate court shall state: (a) points for determination; (b) the decision thereon; (c) the reasons for the decision; and relief to which the appellant is entitled. (d) where the decree appealed from is reversed or varied, the relied to which the appellant is entitled. Thus, the appellate court has the jurisdiction to reverse or affirm the findings of the trial court. It is settled law that an appeal is a continuation of the original proceedings. The appellate court's jurisdiction involves a rehearing of appeal on questions of law as well as fact. The first appeal is a valuable right, and, at that stage, all questions of fact and law decided by the trial court are open for reconsideration. The judgment of the appellate court must, therefore, reflect conscious application of mind and must record the court's findings, supported by reasons for its decision in respect of all the issues, along with the contentions put forth and pressed by the parties. Needless to say, the first appellate court is required to comply with the requirements of Order 41 Rule 31 C.P.C and non-observance of these requirements lead to infirmity in the judgment."

11. Similarly is the position in the present case that a perusal of the judgment of the first appellate court indicates that it decided the case without framing the 4 SAPL No. 51 of 1998 point of determination, hence the judgment passed by the first appellate court is not tenable in the eyes of law and hence the judgment and order dated

30.09.1997 passed by the first appellate court is hereby set aside.

12. The appeal is allowed.

13. The matter is remanded to the first appellate court to decide the same as per Order 41 Rule 31 C.P.C, afresh, expeditiously. September 3, 2025 DiVYa (Manish Kumar,J.) DIVYA SINGH DIVYA SINGH High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, Lucknow Bench Lucknow Bench