WADHUMAL Vs. MOHINIBAI

JUDGEMENT

(1.) The appellant had raised substantial question of law which is reflected in order dated 3.12.2012 passed by this Court as to whether the 1 st appellate Court by merely asking the question as to whether the judgment of the Court below is correct, legal and valid, is hopelessly inadequate method of of meeting the requirement of legal provisions.

(2.) Heard submissions at the Bar. As this appeal was fixed for hearing or dismissal after absence of the Advocate for appellant was noted on 6.12.2013 and 10.1.2014.

(3.) Learned counsel for the appellant with reference to ruling in Khatunbi Mohammad Sayeed & ors v. Aminabai Mohd Sabir and ors, 2007 2 BCR 900 submitted that the 1st appellate Court as final court of facts, is expected to take all the points for determination for the decision on each point to record the reasons for decision as also reasons in respect of all the issues arising from the decree appealed from, and the relief to which the appellant is entitled as stated in paragraph 5 of the ruling. Reference is also made to paragraph 7 with particular mention to Order 41, rule 31 CPC to argue that 1st appellate court cannot adopt hopelessly inadequate method by merely asking itself the question as to whether impugned judgment is correct, legal or valid since it is final court of facts. The 1st appellate Court is under obligation to frame all necessary points for determination so as to focus on all the issues raised by the parties in the trial Court and to answer all the issues which were raised as it is final court of facts 1st appellate Judge can, after considering all the rival contentions in the light of evidence led on record, meet all the points while it decides the First Appeal on merits on the basis of properly formulated points for determination.