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SUPREME COURT OF INDIA
ABHAY MANOHAR SAPRE, R. SUBHASH REDDY, JJ.
State of Rajasthan & Ors. – Appellants
Versus
Shiv Dayal & Anr. – Respondents
Civil Appeal No.7363 to 7365 of 2000
Decided on : 14-08-2019
(A) Civil Procedure Code, 1908 – Section 100 – Second appeal – Disposal of – Parameters – It is not the principle of law that where High Court finds that there is a concurrent finding of two Courts (whether of dismissal or decreeing of suit), such finding becomes unassailable in second appeal – Concurrent finding of fact is usually binding on High Court while hearing second appeal under Section 100 of CPC – However, this rule of law is subject to certain well known exceptions – In order to record any finding on the facts, Trial Court is required to appreciate entire evidence (oral and documentary) in light of pleadings of parties – Similarly, it is also a trite law that Appellate Court also has jurisdiction to appreciate evidence de novo while hearing first appeal and either affirm finding of Trial Court or reverse it – If Appellate Court affirms finding, it is called concurrent finding of fact whereas if finding is reversed, it is called reversing finding. (Paras 16 to 20)
(B) Civil Procedure Code, 1908 – Section 100 – Second appeal – Disposal of – Parameters – When any concurrent finding of fact is assailed in second appeal, appellant is entitled to point out that it is bad in law because it was recorded de hors pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, decision is one which no Judge acting judicially could reasonably have reached – High Court should have admitted second appeal by framing appropriate substantial question(s) of law arising in the case and answered them on their respective merits rather than to dismiss appeals without considering any of the questions – Interference in impugned order is called for to enable High Court to decide controversy in its proper perspective – Impugned order set aside and case is remanded to High Court for deciding second appeals afresh on merits after framing appropriate substantial questions of law(s) arising in the case. (Paras 21, 30 and 32)
Facts of the Case:
Respondent No. 1 filed a civil suit against appellant State and its authorities and claimed therein a relief of grant of permanent injunction restraining the State and its authorities from interfering in carrying out the mining operations on suit land by respondent No.1. question, which arises for consideration in these appeals, is whether High Court was justified in dismissing State's second appeals on the ground that these appeals did not involve any substantial question of law.
Findings of Court:
Suit could not have been tried properly without deciding these questions in the light of the pleadings, evidence and the applicable laws. High Court, therefore, should have admitted the second appeal by framing appropriate substantial question(s) of law arising in the case and answered them on their respective merits rather than to dismiss the appeals without considering any of the aforementioned questions.
Result : Appeals allowed.
JUDGMENT :
Abhay Manohar Sapre, J.
1. These appeals are directed against the final judgment and order dated 23.03.1999 passed by the High Court of Judicature for Rajasthan Bench at Jaipur in S.B. Civil Second Appeal Nos.83, 84 and 85 of 1999 whereby the High Court dismissed the second appeals filed by the appellants herein.
2. A few facts need mention hereinbelow for the disposal of these appeals, which involve a short point.
3. The appellants are the defendants and respondent No. 1 is the plaintiff in the civil suit out of which these appeals arise.
4. The appellant No. 1 is the State of Rajasthan and respondent No. 1 claims to be the mining lessee in relation to the suit land under the Mines and Minerals (Development & Regulation) Act (hereinafter referred to as “MMRD Act”).
5. The respondent No. 1 filed a civil suit against the appellant State and its authorities and claimed therein a relief of grant of permanent injunction restraining the State and its authorities from interfering in carrying out the mining operations on the suit land by respondent No.1.
6. Respondent No. 1 claimed this relief inter alia on the averments that the suit land was not the part of any protected Forest area as claimed by the State authorities but it was a part of the Revenue area. It was averred that since the suit land did not fall in the protected forest area, the respondent No. 1 (plaintiff) had a right to carry out mining operation on the suit land without any interference of the State and its authorities.
7. The State contested the suit by denying the averments made in the plaint. The Trial Court framed issues. Parties led their evidence. By Judgment and decree dated 10.05.1998, the Trial Court decreed in favour of the plaintiff the suit and granted an injunction against the State and its authorities in relation to the suit land, as prayed in the plaint.
8. The State felt aggrieved and filed first appeal before the District Judge. By Judgment dated 03.09.1998, the first Appellate Court dismissed the appeal and affirmed the judgment/decree of the Trial Court giving rise to filing of the second appeals by the State in the High Court.
9. By impugned order, the High Court dismissed the second appeals holding that the appeals did not involve any substantial question of law. It is against this order, the State felt aggrieved and has filed the present appeals by way of special leave before this Court.
10. So, the short question, which arises for consideration in these appeals, is whether the High Court was justified in dismissing the State's second appeals on the ground that these appeals did not involve any substantial question of law.
11. Heard Mr. Milind Kumar, learned counsel for the appellants and Mr. S.K. Bhattacharya, learned counsel for respondent No.1.
12. Having heard the learned counsel for the parties and on perusal of the record of the case, we are constrained to allow the appeals, set aside the impugned order and remand the case to the High Court for deciding the second appeals afresh on merits in accordance with law.
13. In our opinion, the need to remand the case to the High Court has arisen because we find that the second appeals did involve several substantial questions of law for being answered on merits in accordance with law. The High Court was, therefore, not right in so holding.
14. Indeed, we find that the High Court dismissed the second appeals essentially on the ground that since the two Courts have decreed the suit, no substantial question of law arises in the appeals. In other words, the High Court was mostly swayed away with the consideration that since two Courts have decreed the suit, resulting in passing of the decree against the State, there arises no substantial question of law in the appeals. It is clear from the last paragraph of the impugned order, which reads as under:
“Under these circumstances, when both the Ld. Courts have arrived at the conclusion that the disputed area is outside the forest area. Therefore, the principle
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