(Prayer: Appeals against the decree of the Principal District Judge, Srivilliputhur, dated 24.9.1997 in Appeal Suit Nos.2 and 1 of 1997 preferred against the decree of the Court of the Principal Subordinate Judge, Srivilliputhur, dated 30.10.1996 in Original Suit Nos.291 of 1995 and 203 of 1990, etc.)

1. The appellant in the second appeal in S.A.No.1451 of 1998 is the defendant and the respondent herein is the plaintiff in O.S.No.291 of 1995 on the file of the Principal Subordinate Judges Court at Srivilliputhur for the reliefs of possession and also for arrears of rent of Rs.9,000.

2. The appellant in S.A.No.1452 of 1998 is the plaintiff and the respondents herein are the defendants in O.S.No.203 of 1990.

3. The appellant/plaintiff filed the suit in O.S.No.203 of 1990 on the file of Principal Subordinate Judges Court at Srivilliputhur for the relief of mandatory injunction directing the respondents/defendants to execute the sale deed in favour of the appellant plaintiff.

4. The learned Principal Subordinate Judge at Srivilliputhur who tried both the suits together, delivered a common judgment. The learned Principal Subordinate Judge after considering the rival contentions of both the parties dismissed the suit in O.S.No.203 of 1990 and decreed the suit in O.S.No.291 of 1995 declaring that the appellant/plaintiff is entitled to the recovery of possession of the suit property and also for the arrears of rent of Rs.9,000 but rejecting the claim of interest to the said sum of Rs.9,000 and giving liberty to the appellant/plaintiff to claim future damages in separate proceedings.

5. Aggrieved against the said findings of the trial court, the appellant defendant preferred the first appeals in A.S.Nos.1 of 1997 and 2 of 1997 respectively, before the Principal District Court at Srivilliputhur, and the learned Principal District Judge after hearing the learned counsel for both sides and after considering the evidence, both oral and documentary, dismissed both the appeals without costs, confirming the judgment and decree of the trial courts.

6. Not satisfied with the concurrent findings of both the courts below, the appellant/plaintiff defendant has come forward with these two second appeals.

7. Both the counsel were heard in full. After hearing both the counsel on record I find that this is a fit case for admission as substantial question of law is involved. Hence, the second appeals are admitted. The following substantial question of law is framed as follows:

Whether the common judgment of the lower appellate court is vitiated by non-compliance of the mandatory provision of O.41, Rule 31 of C.P.C..

8. Point:A perusal of the trial court common judgment in O.S.Nos.203 of 1990 and 291 of 1995 would disclose that as many as eight issues were also framed for trial in O.S.No.203 of 1990, whereas as many as seven issues were also framed in the connected suit in O.S.No.291 of 1995. But the first appellate court viz., The Principal District Judges Court at Srivilliputhur has framed the points for determination in respect of the two appeals in A.S.No.1 of 1997 and 2 of 1997 in the following words in Tamil:

"TAMIL"

9. Therefore the first appellate court viz., The Principal District Judges Court at Srivilliputhur has framed two points for determination, and they are similar, and it is to the effect whether the Judgment rendered in both the suits by the trial court is correct. That is the only point for determination framed by the first appellate court. There is no other point framed by the first appellate court for determination. In the above background we have to consider the rival contentions of both the counsel on record. The learned counsel for the appellant Mr.G.M.Nathan argued that the judgment of the first appellate court is not in accordance with law and it does not satisfy the provisions of O.41, Rule 31 of C.P.C., which stipulates that the judgment of the appellate court shall state the points for determination, the decisions thereon and the reasons for the decisions. According to him the learned Principal District Judge at Srivilliputhur has not formulated any point for determination in respect of the pleadings of the parties and in respect of the questions raised therein, and as such the mandatory provision of O.41, Rule 31 of C.P.C. has not been complied with, and therefore the judgment of the first appellate court is liable to be set aside. In support of the above contentions the learned counsel for the appellant has drawn by attention to the Division Bench decisions of our Madras High Court in Visalakshi Ammal v. Dhanalakshmi Ammal Visalakshi Ammal v. Dhanalakshmi Ammal Visalakshi Ammal v. Dhanalakshmi Ammal (1989)2 L.W. 414 and Palanisami Pillai v. The Commissioner Hindu Religious and Charitable Endowments, Admn.) Department, Madras-34 and another, L.P.A.No.16 of 1993. These two Division Bench decisions were referred to in the later decision of a Division Bench of our High Court reported in K.M.M.Kadar Hussain v. O.M.R.Selvaraj and two others K.M.M.Kadar Hussain v. O.M.R.Selvaraj and two others K.M.M.Kadar Hussain v. O.M.R.Selvaraj and two others (1997)1 C.T.C. 559 wherein their Lordships AR.Lakshmanan and A.Raman, JJ. stated that the appellate court should raise the points for determination and state the reasons for the decision as the provision of O.41, Rule 31 of C.P.C. is mandatory, and the failure to follow the mandatory provisions would render the judgment defective, and so the judgment of the first appellate court was set aside for not following the mandatory requirements of O.41, Rule 31 of C.P.C., and so their Lordships set aside the judgment and decree of the first appellate court and remitted the matter to the first appellate court to dispose of the appeal a fresh as expeditiously as possible.

10. The learned counsel for the respondent Mr.V.Radhakrishnan repudiated the above arguments and contended that the first appellate Judge in the two appeals has framed the points for determination though specifically not with regard to the pleadings, and even then the judgment rendered by the first appellate court is only an irregularity and not a nullity, and there are concurrent findings of both the courts below, and in those circumstances the second appeals must be dismissed.

11. In support of the above contention, the learned counsel for the respondent has drawn my attention to a decision of the Privy Council reported in Firm of Gokal Chand Jagan Natha v. Firm Nand Ram Das (1938)1 MLJ. 56 [LQ/MadHC/2021/18266 ;] .

12. The above contentions of the learned counsel for the respondent cannot be upheld and the decision of the Privy Council cited by him cannot be applied to the facts of the present case for the following reasons. The decision of the Privy Council relates to a case where the appellate judgment of the High Court was delivered by one judge, the other agreeing, and the former Judge went on leave before signing the judgment, which was signed by the second Judge, and in those circumstances the Privy Council held at pages 62 and 63 that the defect is merely an irregularity, while the former Judge not signing the judgment because the former Judge went on leave before signing the judgment, which was signed by the second Judge. Such was not the case here. Here is a case where the first appellate Judge viz., the Principal District Judge at Srivilliputhur in A.S.Nos.1 of 1997 and 2 of 1997 has not framed the proper points for determination. The object of O.41, Rule 31 of C.P.C. makes it incumbent on the appellate court to raise points for determination, and this is to clear up the pleadings and focus the attention of the court and of the parties on the specific and rival contentions which arise for decision. The provisions of O.41, Rule 31 of Civil Procedure Code are mandatory and it cannot be said that the failure to comply with the provisions is merely an irregularity. The point for determination in an appeal must be in conformity with the merits of the case and in accordance with the pleadings of the parties and not merely stating as to whether the judgment of the trial court is correct as formulated by the first appellate court in this case. If no such point for determination arising on the pleadings of the parties and arising on the contentions raised before the trial court were framed by the appellate court then it has violated mandatory provisions contained in O.41, Rule 31 of Civil Procedure Code. It is not sufficient to state by the first appellate court, as in the present case, the point to be determined in this appeal is as to whether the decision of the trial court is correct or not, and the point for determination as shown by the first appellate court in its judgment in A.S.Nos.1 of 1997 and 2 of 1997 is no point for determination at all touching the merits of the case and touching the pleadings of the parties. In those circumstances, I am of the view that Judgment of the first appellate court in both the appeals in A.S.Nos.1 of 1997 and 2 of 1997 is vitiated by non-compliance of the mandatory provisions contained in O.41, Rule 31 of C.P.C., and so the judgment and decree of the Principal District Judges Court at Srivilliputhur in A.S.Nos.1 of 1997 and 2 of 1997, dated 24.9.1997 are to be set aside, and the matter in both the appeals has to be remitted back to the Principal District Court at Srivilliputhur to dispose of the two appeals afresh on merits and in accordance with law, after affording opportunity to both the parties, within two months from the date of receipt of the copy of this judgment either from this High Court or from any one of the parties to the appeals, and consequently I answer this point in favour of the Appellant.

13. In the result, both the appeals are allowed. The judgment and decree of the Principal District Judges Court at Srivilliputhur in A.S.No.1 of 1997 and 2 of 1997, dated 24.9.1997 are set aside and the matter in both the appeals in A.S.Nos.1 of 1997 and 2 of 1997 are remitted back to the Principal District Judges Court at Srivilliputhur to dispose of both the appeals afresh on merits and in accordance with law after affording opportunity to both the parties within two months from the date of receipt of copy of this judgment from this High Court or on production of the same by any one of the parties to these appeals, which ever is earlier, and the learned Principal District Judge at Srivilliputhur is directed to frame the points for determination on the pleadings of the parties and on the basis of the contentions in the plaint and in the written statement and then dispose of both the appeals. In the circumstances each party is directed to bear their own costs in these two appeals.

14. Consequently the stay petition in C.M.P.No.13705 of 1998 is dismissed as unnecessary.