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SUPREME COURT OF INDIA
(From the High Court of Judicature at Bombay at Nagpur)
N.V. RAMANA, SURYA KANT, ANIRUDDHA BOSE,
Narayan Sitaramji Badwaik (Dead) Through Lrs. – Appellant
Versus
Bisaram And Others - Respondents
Civil Appeal No. 6124 of 2011
Decided on : 17-02-2021
Civil Procedure Code, 1908 – Sections 100 and 103 – Second Appeal – Second appeal, under Section 100 of CPC, lies only on a substantial question of law – However, this does not mean that High Court cannot, in any circumstance, decide findings of fact or interfere with those arrived at by Courts below in a second appeal – Under Section 103 of CPC, High Court can decide an issue of fact, provided there is sufficient evidence on record before it, in two circumstances. First, when an issue necessary for disposal of appeal has not been determined by lower Appellate Court or by both Courts below – Second, when an issue of fact has been wrongly determined by Court(s) below by virtue of decision on question of law under Section 100 of CPC – In present case, First Appellate Court approached the matter incorrectly--As such, High Court ought to have either remanded the matter, or exercised its powers under Section 103, CPC and decided issues of fact--Instead, after negativing observations and holding of First Appellate Court, High Court mechanically upheld decision rendered by Trial Court--Order of High Court set aside and matter remanded to High Court for fresh consideration of appeal, on facts and law, if necessary. (Paras 10, 11, 12, 14 and 15)
Facts of the case:
Appellant had filed a suit for possession of the property in dispute, on the basis of a sale deed. District Judge reversed findings of the Trial Court and decreed the suit in favour of Appellant. Aggrieved by judgment of the First Appellate Court, some of the respondents filed a second appeal before the High Court wherein the High Court upheld the findings of the Trial Court and allowed the second appeal vide the impugned judgment, thereby dismissing the suit of appellant. High Court, vide the impugned judgment, noted that First Appellate Court had considered irrelevant material and had erred in appreciating the legal issue involved.
Findings of Court:
High Court decided the appeal without any assessment of the evidence on record, in a single paragraph. Impugned order of the High Court is liable to be set aside, and matter be remanded.
Result : Appeal allowed.
JUDGMENT :
N.V. RAMANA, J.
1. When the matter came up last time, on 03.02.2021, this Court passed the following order:
Heard learned counsel for the appellants.
Taking into consideration the nonappearance of the counsel for the respondents and to know the exact position of the disputed property as well as whether any compromise has taken place between the parties, we grant two weeks to the counsel for the appellants to do the needful.
List the matter immediately after two weeks.”
2. Even today, when the matter was called out, nobody appeared for the respondents in spite of service of notice.
3. Heard the learned counsel appearing for the appellants.
4. In response to our earlier query, it is represented by the learned counsel for the appellants that no settlement has taken place between the parties, and according to her the parties intend to continue with the litigation.
5. Taking into account the long pendency of the present appeal before this Court, and the fact that, despite service of notice, the respondents have not entered appearance from the very beginning as per the Office Reports, we are of the opinion that we should dispose of the matter with the assistance of the counsel for the appellants.
6. The facts of the case necessary for the disposal of the present appeal are as follows: the Narayan Sitaramji Badwaik (since deceased and now represented through his legal representatives and who shall hereinafter for the sake of convenience be referred to as the appellant) had filed a suit for possession of the property in dispute, on the basis of a sale deed dated 26.09.1978, for Rs. 10,000 from some of the respondents. On the other hand, the respondents contend that no such sale took place, and in fact, the document executed was only collateral for a loan extended by the appellant to respondents. The appellant sought possession of the property on 05.09.1987, and subsequently instituted the present suit on 07.03.1989. The Trial Court, after looking into the evidence placed on record, dismissed the suit of the appellant vide judgment dated 21.09.1995. On appeal, the District Judge reversed the findings of the Trial Court and decreed the suit in favour of the appellant vide judgment dated 05.08.1997. Aggrieved by the judgment of the First Appellate Court, some of the respondents filed a second appeal before the High Court wherein the High Court upheld the findings of the Trial Court and allowed the second appeal vide the impugned judgment, thereby dismissing the suit of the appellant.
7. We have carefully perused the impugned judgment by the High Court with the assistance of the counsel for the appellant.
8. The High Court, vide the impugned judgment, noted that the First Appellate Court had considered irrelevant material and had erred in appreciating the legal issue involved. The High Court held as follows:
(emphasis supplied)
9. However, after highlighting the legal infirmities of the judgment of the First Appellate Court, and an
High Court can decide an issue of fact in a second appeal under Section 100 of Code of Civil Procedure, 1908.
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