ANIL KUMAR,J. - (1.) Heard Sri D.C. Jain, learned counsel for appellant Sri Tarun Kumar Pandey, learned counsel for respondents and perused the record. Facts in brief of the present case are that initially plaintiff-appellant has filed a suit for permanent injunction registered as Regular Suit No. 23 of 1984 (Prabhu Nath and others v. Ramjas and others), decreed by judgment and order dated 19.10.1981 passed my Munsic, 8th, Gonda, challenged by filing a Civil appeal No. 204 of 1981 (Ramjas v. Prabhunath), allowed by judgment and order dated 20.10.1982
(2.) After hearing learned counsel for parties and going through the record, the first and foremost question which is to be considered in the present case that if the appellate court reverse the judgment passed by the trial court then it is mandatory on the part of the said court to follow the provisions as provided under Order 41, Rule 31 CPC or not.
(3.) In the present case, the position which emerged out that the provisions as provided under Order 41, Rule 31 CPC has not been followed, in this regard, Hon'ble the Apex Court in the case of H. Siddiqui (Dead) By Lrs. v. A. Ramalingam, 2011 (4) SCC 240 , in para Nos. 21 and 22 held as under:- "21. The said provisions provide guidelines for the appellate court as to how the court has to proceed and decide the case. The provisions should be read in such a way as to require that the various particulars mentioned therein should be taken into consideration. Thus, it must be evident from the judgment of the appellate court that the court has properly appreciated the facts/evidence, applied its mind and decided the case considering the material on record. It would amount to substantial compliance of the said provisions if the appellate court's judgment is based on the independent assessment of the relevant evidence on all important aspect of the matter and the findings of the appellate court are well founded and quite convincing. It is mandatory for the appellate court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final court of fact, the first appellate court must record mere general expression of concurrence with the trial court judgment rather it must give reasons for its decision on each point independently to that of the trial court. Thus, the entire evidence must be considered and discussed in detail. Such exercise should be done after formulating the points for consideration in terms of the said provisions and the court must proceed in adherence to the requirements of the said statutory provisions. (Vide: Thakur Sukhpal Singh v. Thakur Kalyan Singh and Anr., AIR 1963 SC 146 ; Girijanandini Devi and Ors. v. Bijendra Narain Choudhary, AIR 1967 SC 1124 ; Amalorpavam and Ors. v. R.C. Diocese of madurai and Ors.,(2006) 3 SCC 224 ; Shiv Kumar Shrma v. Santosh Kumari, (2007) 8 SCC 600 ; and Gannmani Anasuya and Ors. v. Parvatini Amarendra Chowdhary and Ors., AIR 2007 SC 2380) 19. In B.V. Nagesh and Anr. v. H.V. Sreenivasa Murthy JT (2010) 10 SC 551 , while dealing with the issue, this Court held as under: "The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case therein is open for re-hearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put-forth and pressed by the parties for decision of the appellate Court. Sitting as a court of appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. [ Vide Sqntosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179 and Madhukar and others v. Sangram and others, (2001) 4 SCC 756]" ;