Case No. 1
Maharajkumar Hanuvantsinhji Madansinhji Jadeja versus LH OF DECD Pragmalji Third of Kutchh
Decided on September 7, 2022
Coram: Hon'ble Mr. Justice Hemant M. Prachchhak

Facts
The original plaintiff, Pragmalji, who passed away while the appeal was pending, filed for a declaration and an injunction, asking the court to rule that the defendant no.1, priest has no right to stop or obstruct the plaintiff from performing the chamar and patri viddhi in accordance with very ancient religious customs. The plaintiff also asked the court to grant an injunction to prevent the defendant.

The plaintiff, current Maharani's spouse was alleged to be a part of the royal line of the former Kutchh State, among other things, in the plaint. The plaintiff is further alleged to be the eldest son of Late Maharao Shri Madansinhji Jadeja, the former ruler of Kutchh, and as such, is entitled to perform certain religious rituals and is also authorized to appoint a representative of the Jadeja clan (i.e., "Jadeja Bhayat") to perform such rituals on his behalf in the Mata Na Madh, Nakhatrana, temple of Goddess Ashapura.

The complainant further asserts that one of the rituals in the sanctuary that has been practiced for centuries, dating back to the days of the former State of Kutchh, is known as the "Patri Ceremony" and is carried out on Aaso Sudh Aatham by members of the Royal family.

The complainant requested that Juvansinh Hamirli Jadeja conduct this puja in his stead. However, since said Juvansinh Jadeja was not a part of the Royal family, the initial accused no. 1 stepped in and prevented him from performing the Puja. Plaintiff submitted the lawsuit for a declaration and perpetual injunction based on the aforementioned claim.

Issue

• Whether in a particular case there has been a substantial compliance with the provisions of Order XLI Rule 31 CPC has to be determined on the nature of the judgment delivered in each case.

Judgement
The impugned judgment and award passed by the learned 10th Additional District Judge, Kachchh at Bhuj is quashed and set aside only on the ground that it is a clear violation of the recent decision of the Hon'ble Apex Court on how and in what manner the First Appeal under Section 96 of CPC is to be decided and the matter is remanded back to the First Appellate Court to decide the same afresh on merits and in accordance with the law.

Reasoning Of The Court
The rules of Order XLI of the Civil procedure Code specify how the Appellate Court must deal with an Appeal under Section 96 of the Code, as well as the process that must be followed. The appeal Court has the authority to overturn or uphold the trial court's conclusions. The first appeal is a valued right of the parties, and unless otherwise limited by law, the entire case is available for re-hearing on both factual and legal Issues.

The Appellate Court's decision must, therefore, represent its conscious application of mind and document findings backed by reasons on all Issues raised, as well as the contentions advanced and pushed by the parties for decision by the Appellate Court. It is also irrefutable that, in deciding and disposing of the First Appeal under Order XLI read with Section 96 of the CPC, the learned Appellate Court is required to frame the grounds for decision as contemplated by Order XLI Rule 31 of the CPC.

On a cursory reading of the First Appellate Court's decision, it is clear that the learned First Appellate Court made a serious error in failing to decide the appeal in accordance with the provisions of Order XLI of the CPC, and thus, the present appeal must be remanded back to the First Appellate Court to be decided in accordance with the provisions of Order XLI Rule 11, 15, 31, and 33, especially in light of the recent pronouncement of The First Appellate Court's decision and order are hereby reversed and put aside.

On review of the lower Appellate Court's judgment and order, it is abundantly clear that the First Appellate Court has failed to discharge its obligations as a First Appellate Court, and thus, in my opinion, the lower Appellate Court's judgment and award deserve to be quashed and set aside, and the case must be remanded to the First Appellate Court for consideration on merits and in accordance with law.

Case No. 2
Shivaji Shankar Jadhav & Anr. Versus Laxman Gajanan Godbole Through his Power of Attorney Nikhil Dinkar Pawar
Decided on: February 6, 2018
Citation: 2018 SCC OnLine Bom 148
Coram: Mrs. Mridula Bhatkar, J

Facts
The Respondent in this case filed Regular Civil Suit No. 351 of 1999 before the learned Single Judge in order to obtain a simplicitor injunction against the appellants' father and the appellant, who the respondent claimed were unjustly preventing the respondent from taking possession of the suit property.

The trial court dismissed the lawsuit by a judgment and order dated October 8, 2010, finding that the respondents did not succeed in establishing ownership of the suit's property and/or illegal obstruction by the appellant's father and the appellant herein, both of who were named as defendants in the lawsuit. Because there was a delay in filing the appeal, the respondent filed an application for a delay pardon. The respondent chose to appeal the trial court's decision.

The application for a delay pardon was approved by order dated March 17, 2017. In this case, the respondent filed an application for a temporary restraining order in appeal. Because the respondent had established a presumptive case and demonstrated that the balance of ease is in the respondent's favour, the learned District Judge approved the application and Issued an interim order in the respondent's favour in this case.

It is decided that the appellant in this case had been unable to present any kind of documented proof proving their actual ownership of the claim property. The appellant chose to appeal an order from this court where the appellants had contested the lesser Appellate Court's authority to Issue temporary injunctions. In the appeal from order, there were additional reasons for appeal that we are not concerned with in this case, such as whether interim relief can amount to definitive relief.

The reference order stated that the appeal from the order could not be maintained. The learned Single Judge dissented from the previous stance made by this Court and submitted this matter to a Division Bench/Larger Bench for resolution.

Issue

• Whether the temporary injunction order Issued in a Regular Civil Appeal submitted under Order XLI of the CPC is appealable under Order 43 Rule (1) sub-Rule (r) of the CPC?

Judgement
The court disagrees with the earlier three Judges in the cases of Krishna Pandurang Wankhede (supra), Shri Shivaji Shankarrao Patil (supra), and Subhash Sheti Pawar (supra) who held that an interim injunction granted in an appeal filed under Order XLI of the CPC is appealable under Order 43 Rule (1) sub-rule (r) of the CPC. Certain very pertinent sections of Section 104 and Order 43 of the CPC were not brought out to the previous benches and, as a result, were not discussed at all. However, it is preferable to submit this matter to a larger bench for a more authoritative ruling.

As a result, the current Appeal from Order is unsustainable.

Reasoning Of The Court
A decision is appealable under Section 96 of the CPC, and an order is appealable under Section 104 of the CPC. Section 96 of the CPC is related to Order XLI, and Section 104 is related to Order 43 of the CPC. Section 106 of the Civil Procedure Code is a general provision, whereas Section 104, along with Order 43 Rule 1 of the Civil Procedure Code, is a particular and explicit provision.

Temporary injunction relief can be obtained in both the action and any appeal. Section 104 of the CPC says in Subsection 2 that no appeal shall lie from any decision passed in an appeal under this section. There is no need to examine Section 104 of the CPC or the limit under sub-section 2 of Section 104 of the CPC when there is a matter of temporary order in a Regular Civil Appeal under Section 96 of the CPC.

Under Order XLI Rule 5 of the CPC, the Appellate Court has the authority to delay the implementation of the trial Court's judgment or order. As a result, the ruling must be Issued under appeal jurisdiction, which is the fundamental and parent jurisdiction. If the lawmakers meant for this stay order Issued under Rule 5 of Order XLI of the CPC to be appealable, it would have included it in Rule 1 of Order 43 of the CPC. The legislation, however, makes no note of it.

The Court cannot interpret unwritten law. To summarize, even though the appeal is a continuation of the action under Rule 2 of Order 43, the Rules of Order XLI shall apply insofar as appeals from orders are stated. However, only four Rules in Order XLI of the CPC are appealable under Order 43 of the CPC, namely Rules 19, 21, 23, and 23A of Order XLI of the CPC, and all other orders are not appealable under Order 43 of the CPC. As a result, it is unsustainable.

Case No. 3
Somabhai Zerabhai Since Decd v/s State Of Gujarat
Decided on: Feburary 19, 2019
Coram: Hon'ble Mr. Justice K.S. Mudagal

Facts
The appellants' argument is that the lands in Issue are located in villages Kotda (land survey no.53/1), Paravdi (land survey no.58/2), and Vadi Buzarg (land survey no.140/2/B) and were initially owned by Virabhai Dhadhubhai, who had two spouses, Rajliben and Baliben. The said Virabhai Dhadhubhai died in 1966, and the names of his two wives and children were entered into revenue records.

Following that, the daughters, Navaliben, Soniben, and Ramiben (Respondent No.4), relinquished their right to the land bearing survey no.58/2 by declaring to the lower revenue authority that they do not want any share in the property, and their names were not entered in the revenue record. In the case of the other lands, namely those bearing survey numbers 53/1, 64, 65, and 140/2/B, the name of Respondent No.4 Ramtiben was continued after Baliben's death in 1992, as evidenced by revenue entries.

The appellants say that in the year 1992, deceased Baliben executed a registered will favour of the present appellants - Somabhai Zaverbhai & Others and after her death accordingly the mutation entries were made and certified in the revenue record at the relevant time in favour of the appellants.

Because the aforementioned entry was challenged by Ramtiben (Respondent No.4), it was cancelled by the deputy collector and ordered to acquire the required probate certificate from the appropriate civil court.

As a result, the appellants moved before the Civil Court, Godhra, for obtaining a probate certificate for deceased Baliben's will, wherein the Trial Court, without properly appreciating the Facts and evidences on the record of the case, pleased to partially allow the probate application to the extent of 12 share only.

In addition to the aforementioned judgment and decree, the respondent No.4 filed an appeal, and the appellants filed a Cross Appeal, where the Appellate Court, without properly appreciating the Facts and circumstances of the case, allowed the appeal filed by the respondent no.4 and dismissed the Cross Appeal filed by the appellants.

Being aggrieved and dissatisfied with the aforementioned judgments and decree, the petitioner filed this Second Appeal under Section 100 of the Code of Civil Procedure.

Issue

• Is the compliance of Order XLI Rule 31 mandatory for a suit under section 96 of Civil Procedure Code?
   

Judgement
The decision and decree in question passed in Regular Civil Appeal No.71 of 2004 and the judgment and order passed in Probate Application No.55 of 1997, are hereby quashed and set aside and the matter is remanded back to the First Appellate Court to decide the same a fresh on merits and in accordance with law after formulating the points of determination.

It is emphasized that the matter is remanded solely on the grounds stated above, and that this Court has not considered the case's merits. As a result, the current Second Appeal has been dismissed.

Reasoning Of The Court
Given the foregoing, the First Appellate Court must exercise its independent judgment and define the problems properly and autonomously. The provisions of Order XLI of the Civil procedure Code specify how the Appellate Court must deal with an Appeal under Section 96 of the Code, as well as the process to be followed.

The learned Appellate Court has not appreciated or reappreciated the evidence on record, and the learned Appellate Court has disposed of the First Appeal under Order XLI read with Section 96 of the CPC in a most casual and perfunctory manner, and that too only in one paragraph, and thus the impugned judgment and order dismissing the Appeal cannot be sustained and deserves to be quashed and set aside.

The matter must be remanded to the learned Appellate Court to decide and dispose of it in accordance with law and on merits, after framing the required points for determination as envisaged under Order XLI Rule 31 of the CPC and after reappreciating the entire evidence on record and giving its own findings on all the Issues/points for determination.

In light of the aforementioned established legal principles, the First Appellate Court is compelled to essentially comply with the provision of Order XLI Rule 31 of the C.P.C. by issuing the ruling.

The decision of the First Appellate Court clearly shows that the learned First Appellate Court made a serious error in not deciding the appeal in accordance with the provisions of Order XLI of the CPC, and thus the present appeal must be remanded back to the First Appellate Court to be decided in accordance with the provisions of Order XLI Rule 11, 15, 31, and 33.

Case No. 4
Bulsara Kalaben Chandrakant Versus Dhimmar Ramanlal Devabhai
Decided on September 2, 2022
Coram: Hon'ble Mr. Justice Hemant M. Prachchhak

Facts
Lallubhai Bulsara has purchased the house as an associate of Natvar Printing Press. The said Natvar Printing Press had been operating in the said land pursuant to a certified selling deed. The owner Jamnaben was the Lallubhai's wife, and they had six girls and three boys. The appellants in this case are one of the boys' legitimate heirs.

In the instance of respondent no.1, Jamanaben performed a registered deed followed by a codicil. It is the unbelievable case of respondent no.1 that the son of Jamanaben with his family sought shelter in the disputed property, and respondent no.1 plaintiff was delighted to hand over possession of the disputed property to Chandrakantbhai (son of Jamanaben).

It is the appellants' case that they had been residing in the property prior to forty years of the 02.05.1995, i.e., much prior to the filing of the suit, and this fact is very clearly indicated in the sale deed, as Natavar Printing Press was a forty-year-old family business on the 02.05.1995. Respondent no.1 served an eviction notification on the plaintiffs herein, claiming that they were licensees and he was the licensor. The defendant no.1 brought a suit, seeking the removal of the plaintiffs herein.

The appellants herein appeared in the action through an elderly lawyer who did not submit even a written statement on behalf of the appellants defendants, and the Trial Court denied their right to file written statements. The elderly counsel had not properly responded to the appellants and was constantly requesting costs.

Due to the carelessness of the appellants'/defendants' counsel, the case was resolved ex-parte by decision and order in favour of plaintiff. The appellants-defendants requested that the case be remanded for a merits hearing. This appeal was also dismissed in 2019. The applicant no.3 filed Regular Civil Suit No.24/2020 contesting the will and codicil signed by the Jamanaben.

The appellant has initiated this appeal in light of the aforesaid Facts.

Issue

• Whether there has been significant compliance with the provisions of Order 41 Rule 31 CPC in framing the Issues and point of determination while giving order in the particular case?

Judgement
The present appeal is allowed. The judgment and order in Regular Civil Suit No. 27 of 2009 and the judgment and order in Regular Civil Appeal No.45 of 2013 are hereby quashed and set aside and the matter is remanded back to the first Appellate Court.

Both parties must keep the property's current status quo, with no third-party rights established until the appeal is resolved.

As a result, the current petition is dismissed. Because the main second appeal has been dismissed, the current civil application does not survive and is dismissed appropriately.

Reasoning Of The Court
Given that the first appeal under Section 96 is a continuation of the suit proceedings and that the first appellate court should have considered the fact and the legal provision, the matter is remanded back to the concerned civil court, where the defendants made a specific prayer in the memo of appeal. However, the first appeal court decided not to return the case and resolve the appeal, which is also contrary to established legal principles.

Returning to the Facts of the case, the first appeal court was compelled to make specific comments concerning the contested elements of the case. It could have focused the debate on merits only after formulating the particular reasons for decision. Only then could it have dealt with the Facts in context.

The challenged decision and order of the learned Appellate Court appear to have disposed of the Appeal filed under Order XLI of the CPC read with Section 96 in a most casual and perfunctory way and that only in one line, so the challenged decision and order rejecting the appeal by the learned Appellate Court cannot be upheld.

It is also undeniable that, in deciding and disposing of the first appeal under Order XLI read with Section 96 of the CPC, the learned Appellate Court is required to frame the grounds for decision as contemplated by Order XLI Rule 31 of the CPC.

Given all of these factors, the current appeal must be set aside because it is based on a clear violation of Order XLI Rule 31 of the C.P.C., and it must be remanded back to the first appellate court, where it must be decided within six months of the date of receipt of the order, the record, and the proceedings.

Case No. 5
K. Karuppuraj v/s M. Ganesan
Decided on: October 4, 2021
Bench: M.R. Shah, A.S. Bopanna

Facts
The plaintiff and the defendant engaged into a sale arrangement for the property located in Kaspa Coimbatore, in which the defendant agreed to transfer the property for a sale consideration of Rs. 16.20 lakhs to the plaintiff. At the moment of the agreement to sell, a partial selling consideration of Rs.3,60,001/- was given. Certain conditions were specified in the sale deal. One of the conditions was that the defendant, as the initial owner, remove the renters from the property and then complete the sale document upon receipt of the entire sale price.

The complainant served the defendant with a legal notification requesting that the tenants be evicted from the property in Issue and that the sale deed be executed upon receipt of the remainder of the sale consideration.

Following that, the plaintiff brought the current action before the learned Trial Court seeking particular execution of the contract. The plaintiff's case was that he was ready and willing to perform his share of the contract, but the defendant did not remove the renters and did not come forward to complete the sale title. As a result, the plaint stated that the defendant must remove the tenants, fulfill his share of the contract, and complete the selling deed.

It was argued on the plaintiff's side that he was always ready to execute his share of the contract because he had cash in his savings account. The defendant filed a written declaration in response to the complaint. The plaintiff's readiness and willingness to execute the specified portion of the contract was expressly denied.

It was argued that the plaintiff already had vacant custody because the renters had departed, and that despite this, the plaintiff was unwilling to pay the remaining consideration. Based on the evidence and the pleadings in the plaint, the learned Trial Court ruled in favour of the plaintiff on the Issue of readiness. However, the plaintiff was not willing to have the sale deed executed as it is, so the Issue of willingness was ruled against the plaintiff.

The Trial Court also held that the defendant had failed to prove that the tenants had vacated the suit property as claimed; however, the learned Trial Court held on willingness against the plaintiff by observing that the plaintiff has not demonstrated a willingness to purchase the property with the tenants and that there are no such pleadings in the plaint, and that the plaintiff has not elected to purchase the property due to its nature. As a result, based on the evidence, the Trial Court concluded that the petitioner was not ready to buy the property with the renters.

As a result, the learned Trial Court rejected the action, refused to Issue a judgment for particular execution of the contract, and ordered the respondent to return the advance sum of Rs.3,60,001/- plus interest at the rate of 18% per annum. To be paid within two months from the date of arrangement to the date of fulfilment.

The learned Trial Court also ordered that a lien be placed on the property until the petitioner receives payment from the respondent. The petitioner submitted an appeal suit before the High Court after feeling offended and unhappy with the learned Trial Court's verdict and order rejecting the suit for specified performance.

The impugned judgment and order, relying on the affidavit filed before the High Court in which the plaintiff stated for the first time that he is ready and willing to purchase the property with the tenants, has allowed the appeal without even re-appreciating the entire evidence on record and even without framing the points for determination and has set aside the judgment and decree passed by the learned Trial Court.

The original defendant, feeling aggrieved and dissatisfied with the impugned judgment and order/decree passed by the High Court - First Appellate Court allowing the appeal and thus decreeing the suit for specific performance of the contract, has preferred the current appeal, Civil Appeal No.6014 of 2021. Following the impugned ruling and order/decree, the defendant submitted a review appeal with the High Court, which was denied, and is the topic of Civil Appeal No.6015 of 2021.

Issues:

• Whether the plaintiff is entitled for specific performance?
• Whether the plaintiff was ready and willing to purchase the property?
   

Judgement
The Judgement given by trial court was upheld. The plaintiff's submission that the agreement imposed a duty on the defendant to evict the tenants and hand over the vacant and peaceful possession, which the defendant failed to do, and that, in such a situation, not passing a decree for specific performance in favour of the plaintiff would be giving a premium to the defendant despite his failure to perform his part of the contract.

The plaintiff's submission that the defendant has not refunded the amount of Rs.3,60,001/- with interest @ 18% as ordered by the learned Trial Court concerned, the order passed by the learned Trial Court is very clear and the defendant is obligated by law to pay the interest @ 18% until its realisation.

Reasoning Of The Court
The initial plaintiff in this case filed an action for specific execution of the contract. Based on the evidence, the learned Trial Court ruled in favour of the plaintiff on the matter of preparedness. However, the court declined to Issue a decision for particular execution of the contract since the plaintiff refused to acquire the property with tenants. As a result, the question of willingness was ruled against the plaintiff.

The High Court permitted an appeal brought before it under Section 96 read with Order XLI by the impugned Judgement and order, and cancelled and set aside the decree made by the learned Trial Court dismissing the matter, and thereby decreed the suit. After reviewing the challenged Judgement and decision of the High Court, it is clear that there is a complete violation of decision XLI Rule 31 of the CPC.

The High Court did not address the Issues for decision required by Order XLI Rule 31 CPC when dismissing the appeal. It also appears that the High Court, like the First Appellate Court, did not analyse the complete topic and Issues in detail, and as a result, it does not appear that the High Court re-appreciated the evidence while dismissing the first appeal.

It also appears that the High Court dismissed the appeal filed under Order XLI CPC read with Section 96 in a very casual and cursory way. Apart from failing to establish the Issues for Judgement as required by Order XLI Rule 31 CPC, it appears that the High Court has also failed to exercise its authority as a First Appellate Court. As previously stated, the High Court has neither reviewed the whole evidence on record nor Issued any particular conclusions on the questions brought before the learned Trial Court.