Judgment & Order (Cav)

1. Heard Mr. N.C. Das, learned senior counsel appearing for the petitioner. Also heard Mr. P.J. Saikia, learned senior counsel representing the respondents.

2. This is an application under Section 115 of the Code of Civil Procedure and Article 227 of the Constitution of India challenging the judgment and decree dated 31.10.2019 passed by the learned District Judge, Dibrugarh in Title Appeal No.06/2017.

3. The petitioner Rajeev Goswami (hereinafter referred to as “the petitioner “only) is a tenant under the respondents in respect of a shop house measuring about 30’ X 52’ situated on a plot of land under Dag No.60, P.P. No.10 of Chiring Gaon Ward, Dibrugarh Town. The monthly rent was ₹500/-.

4. In the May, 1998, the petitioner and late Radhika Prasad Khound had entered into an agreement for sale of the plot of land measuring 30’ X 52’ = 1560 Sq.ft. covered by Dag No.60 and P.P. No.10 of Chiring Gaon Ward, Dibrugarh Town. The price of the land was agreed at ₹1,50,000/-.

5. It is alleged by the petitioner that before execution of the sale deed by late Radhika Prasad Khound, the latter had taken different sums of money from the former on different occasions and in this way, late Radhika Prasad Khound had taken an amount of ₹54,800/-.

6. On 23.12.2005, late Radhika Prasad Khound told the petitioner that he would not sell the land.

7. Narrating the aforesaid facts, the petitioner filed the suit before the court below praying for specific performance of the contract.

8. Late Radhika Prasad Khound and his wife Ira Khound contested the suit by filing a written statement and a counter claim.

9. They denied all the averments made by the petitioner in the plaint. Rather they claimed that the petitioner was a defaulter in payment of rent and therefore, he should be evicted from the suit premise.

10. The learned trial court dismissed the suit of the petitioner and decreed the counter claim of the respondents. The petitioner filed an appeal before the district Judge, Dibrugarh. The first appellate court dismissed the appeal.

11. Therefore, the petitioner filed the second appeal being RSA No.35/2020 before this Court challenging dismissal of his suit only. No second appeal was filed against the first appellate court judgment in respect of the decree passed in the counter claim because under the provisions of the Assam Urban Areas Tenancy Act, 1971 no second appeal lies against a first appellate court judgment.

12. This Court dismissed the second appeal of the petitioner.

13. Against the first appellate court judgment confirming the decree passed in the counter claim, this revision petition has been filed under Section 115 of the Code of Civil Procedure and Article 227 of the Constitution of India.

14. Mr. Das has confined his argument on the point that the judgment passed by the learned District judge in Title Appeal No.06/2017 is bad in law in the light of non-compliance of the provisions of law as laid down in Order 41 Rule 31 of the Code of Civil Procedure.

15. I have considered the submissions made by the learned counsel of both sides.

16. The point raised by Mr. Das was also raised in RSA No.35/2020 and the same has already been answered by this Court in that second appeal. While doing so, this court relied upon a judgment of the Hon’ble Supreme Court that was delivered in Mrugendra Indravadan Mehta v. Ahamedabad Municipal Corporation, reported in 2024 SCC OnLine SC 849. Paragraphs 29, 30 and 31 of the said judgment are quoted as under:

                   “29. However, in Laliteshwar Prasad Singh v. S.P. Srivastava (Dead) thru. Lrs.7, this Court, while affirming the aforestated principles, observed that it is well settled that the mere omission to frame the points for determination would not vitiate the judgment of the first appellate Court, provided that the first appellate Court recorded its reasons based on the evidence adduced by both parties.

                   30. Thus, even if the first appellate Court does not separately frame the points for determination arising in the first appeal, it would not prove fatal as long as that Court deals with all the issues that actually arise for deliberation in the said appeal. Substantial compliance with the mandate of Order 41 Rule 31 CPC in that regard is sufficient. In this regard, useful reference may be made to G. Amalorpavam v. R.C. Diocese of Madurai 8, wherein this Court held as under:—

                   ‘9. The question whether in a particular case there has been substantial compliance with the provisions of Order 41 Rule 31 CPC has to be determined on the nature of the judgment delivered in each case. Non-compliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it and the second appellate court is in a position to ascertain the findings of the lower appellate court. It is no doubt desirable that the appellate court should comply with all the requirements of Order 41 Rule 31 CPC. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient. Where the appellate court has considered the entire evidence on record and discussed the same in detail, come to any conclusion and its findings are supported by reasons even though the point has not been framed by the appellate court there is substantial compliance with the provisions of Order 41 Rule 31 CPC and the judgment is not in any manner vitiated by the absence of a point of determination. Where there is an honest endeavour on the part of the lower appellate court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations appearing on both sides is clearly manifest by the perusal of the judgment of the lower appellate court, it would be a valid judgment even though it does not contain the points for determination. The object of the rule in making it incumbent upon the appellate court to frame points for determination and to cite reasons for the decision is to focus attention of the court on the rival contentions which arise for determination and also to provide litigant parties opportunity in understanding the ground upon which the decision is founded with a view to enable them to know the basis of the decision and if so considered appropriate and so advised to avail the remedy of second appeal conferred by Section 100 CPC.’

                   31. As already noted hereinabove, the High Court did set out all the issues framed by the Trial Court in the body of the judgment and was, therefore, fully conscious of all the points that it had to consider in the appeal. Further, we do not find that any particular issue that was considered by the Trial Court was left out by the High Court while adjudicating the appeal. In effect, we do not find merit in the contention that the impugned judgment is liable to be set aside on this preliminary ground, warranting reconsideration of the first appeal by the High Court afresh.”

17. Under the aforesaid circumstances, the argument put forward by Mr. Das has already failed.

18. This is an application under Section 115 of the Code of Civil Procedure and Article 227 of the Constitution of India. In Nityananda Dutta v. Anisul Haque and Anr., reported in (2008) 4 GLR 164, this Court had held that the scope of revisional jurisdiction of the High Court under Section 115 of the Code of Civil Procedure is very limited and High Court can exercise such power where the subordinate court has exercised a jurisdiction not vested in it by law or has failed to exercise a jurisdiction so vested or has acted in the exercise of its jurisdiction illegally or with material irregularity, provided no appeal lies against the decision of the sub-ordinate court against which order the revision petition has been preferred.

19. The main grounds on which the High Court interferes under Article 227 of the Constitution of India are –

                   1. When the inferior Courts act arbitrarily.

                   2. When the inferior Courts act in excess of the Jurisdiction vested in them.

                   3. When the inferior Courts fail to exercise jurisdiction vested in them.

                   It is pertinent to note that the High Court does not interfere for correcting mere error of facts or, with a finding of the subordinate court which is within the jurisdiction of such court. However, if, such finding is perverse in such a sense that no prudent person having the knowledge of law could have arrived at such finding, or the finding is not based on any material evidence or, such finding results in manifest injustice or if there is a misdirection in law then the High Court can interfere under Article 227 of the Constitution of India.

20. High Court in exercise of the revisional jurisdiction under Section 115 of the Code of Civil Procedure cannot reappreciate the evidences and interfere with the findings recorded by the court below unless such findings are perverse or there has been non-application of mind by the court while coming to the conclusion.

21. In the case in hand, this Court is of the opinion that the findings of the trial court are not perverse nor there are any signs of non-application of judicial mind while coming to the conclusion. There exists no elements for exercising the powers under Section 115 of the Code of Civil Procedure and under Article 227 of the Constitution of India. This Court hereby holds that this revision petition is devoid of any merit and therefore, stands dismissed accordingly.

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