Jagdish Prasad and Others vs Devi Sahay and Others

S.S. Kothari, J.

6.1 Whether the appellate Court was justified in reversing the finding on issue No. 2 which was decided by the trial Court in favour of the defendants, without any cogent reason and justification.

6.2 The averments in the written statements.

6.3 Whether the finding with regard to fixing of the stone slabs by the defendants is contrary to categorical statement of the commissioner that the slabs were fixed adjoining to the plaintiffs wall which was also the case of the plaintiff in the Para 4 of plaint.

6.4 Whether the finding that the stone slabs of the defendants have been fixed into the plaintiffs wall by digging into the wall is absolutely perverse and cannot be sustained. The averments have been made under the confusion in as much as when the defendants'' wall was removed, plaintiffs'' call was exposed and was without plaster, as such under confusion it has been stated that the defendants might have scrapped the wall of plaintiffs to some extent.

6.5 Whether the finding about existence of separate walls and their thickness and whether the stone slabs are in the thickness of defendants'' wall was not possible without breaking both the walls and then measuring the same.

6.6 Whether the observations of the Court below is wholly improbable because admittedly the walls of the upper story of the defendants'' building are in line with the wall on the ground floor and without there being a wall on the ground floor, the walls on the first floor will be without any load bearing wall. It is nobody''s case that the walls of the defendants upper story are supported by plaintiffs wall.

6.7 Whether the findings of the courts below against the defendants are based on gross misreading of the documentary and oral evidence.

..The High Court however, seems to have justified its interference in second appeal mainly on the ground that the judgments of the Courts below were perverse and were given in utter disregard of the important materials on the record particularly misconstruction of the rent note. Even if we accept the main reason given by the High court the utmost that could be said was that the findings of fact by the Courts below were wrong or grossly inexcusable but that by itself would not entitle the High Court to interfere in the absence of a clear error of law.

......Suggested shortcomings in the findings of fact recorded by the Courts below would not alter the situation that those were findings of facts, unquestionable under the provisions of Section 100, C.P.C., which defines the contours of the power of the High Court in second appeal......

The comprehensive fifty-fourth Report of the Law Commission of India submitted to the Government of India in 1973 gives historical background regarding ambit and scope of Sec. 100, C.P.C. According to the said report, any rational system of administration of civil law should recognize that litigation in civil cases should have two hearings on facts - one by the trial Court and one by the Court of appeal.

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The Judicial Committee of the Privy Council as early as in 1890 stated that there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however gross or inexcusable the error may seem to be and they added a note of warning that no Court in India has power to add to, or enlarge, the grounds specified in Section 100, .

Despite repeated declarations of law by the judgments of this Court and the Privy Council for over a century, still the scope of Section 100, has not been correctly appreciated and applied by the High Courts in a large number of cases. In the facts and circumstances of this case the High Court interfered with the pure findings of fact even after the amendment of Section 100, C.P.C. in 1976. The High Court would not have been justified in interfering with the concurrent findings of fact in this case even prior to the amendment of Section 100, C.P.C. The judgment of the High Court is clearly against the provisions of Section 100, and in no uncertain terms clearly violates the legislative intention.

In view of the clear legislative mandate crystallized by a series of judgments of the Privy Council and this court ranging from 1890 to 2006, the High Court in law could not have interfered with pure findings of facts arrived at by the Courts below. Consequently, the impugned judgment is set aside and this appeal is allowed with costs.