K NANJAPPA GOUNDER Vs. S R VELUSAMY

JUDGEMENT

(1.) THE petitioner has filed this review application to review the earlier judgment in S.A. 802/98. THE respondent herein filed the suit O.S. 386/94 on the file of the District Munsif, Sathyamangalam for recovery of a sum of Rs. 8,000/- with interest due on promissory note executed by the appellant herein. THE defence put forth by the appellant is that the pronote is not supported by consideration and the same had been executed in a chit transaction and only a sum of Rs. 2,000/- is due from the appellant. THE District Munsif dismissed the suit. THE respondent preferred an appeal in A.S. 77/97. THE learned Subordinate Judge allowed the appeal and ultimately decreed the suit. Against which the second appeal was filed. This Court dismissed the - Second Appeal on the ground that the lower appellate Court had accepted the evidence of the respondents and as such mere is no substantial question of law involved in the Second Appeal. Only to review the abovesaid judgment this application has been filed.

(2.) EVEN though in the Memorandum of Grounds filed in the Review Application, the petitioner has stated that the judgment of this Hon'ble Court is based on erroneous assumption of fact and contrary to the oral and documentary evidence before the Court, the learned counsel for the petitioner fairly represented that he is not questioning any of the findings of the lower appellate Court as well as the reasoning given by this Court for the dismissal of the Second Appeal. However, in the Second Appeal he has raised a ground that the lower appellate Court failed to frame necessary and proper issues for proper and effective adjudication and this was not brought to the notice of this Court when the Second Appeal was argued. As this is a substantial question of law, as per the judgment reported in Munivel v. Munusamy Mudaliar (1996-2-LW-574), Kadar Hussain v. Selvaraj (1997-II-MLJ-57) and Palanisami Pillai v. The Commissioner, Hindu Religious & Charitable Endowments (Admn.) Dept., (1997-I-L.W. 704), the matter has to be reconsidered. It is further contended that as it is mandatory duty of the lower appellate Court to frame the points for consideration as per Order 41, Rule 31 C.P.C. the failure on the part of the lower appellate Court would vitiate the findings and this itself will be a substantial question of law for consideration in the Second Appeal.

(3.) HENCE from all the three judgments, it is clear that this Court has held that the requirement of Order 41, Rule 31 C.P.C., is to frame the points for consideration and-its determination in order to enable the Court to consider all the relevant materials i.e., the pleadings, the documentary and oral evidence pertaining to the issues framed by the lower Court and the judgment has to be delivered. Where no points for determination have been framed it has been held that it vitiates the judgment. Where points for determination have been framed and the lower appellate Court has not considered the materials available on record, then it is open to this Court to consider the points for determination. Where the points for determination had been framed and not considered elaborately or in detail, covering the issues involved in the suit, then also this Court can scrutinise the judgment of the lower appellate Court as to whether the lower appellate Court has considered all the materials available on record and discuss the matter and gave a finding.