Nagar Nigam, Kota vs Additional District Judge, No. 4, Kota and Others

Mahesh Bhagwati

By way of the instant writ petition, the petitioner has beseeched to quash and set-aside the orders dated 24th July, 2008 and 12th December, 2005 passed by learned Additinoal District Judge, No. 4, Kota and the learned Civil Judge (Jr. Div.), Kota (South), respectively. Having heard the Learned Counsel for the parties and carefully perused the relevant material on record including the impugned orders, it is noticed that a suit for declaration, permanent and mandatory injunction came to be filed by the plaintiff-respondent against the petitioner-defendant before the learned trial court along with an application under Order 39 Rule 1 and 2 of CPC. After service of notice, the petitioner-defendant filed the written statements of defence and the learned trial court after hearing both the parties, granted temporary injunction in favour of the respondent-plaintiff and against the petitioner-defendant vide order dated 12th December, 2005. Aggrieved with the order dated 12th December, 2005, the petitioner-defendant preferred an appeal before the Appellate Court, which also stood dismissed vide order dated 24th July, 2008 and the learned Appellate Court affirmed the order of the trial court. Thus, there has been a concurrent finding of fact of both the courts below.

The Full Bench of the Hon''ble Apex court in the case of Kshitish Chandra Bose versus Commissioner of Ranchi reported in AIR 1981 supreme Court 707 (1) categorically observed that the Patna High Court clearly exceeded its jurisdiction in reversing the pure concurrent findings of fact given by the trial court and the then appellate court.

In the case of Mst. Kharbuja Kuer Vs. Jangbahadur Rai, the Hon''ble Apex Court held that the High Court had no jurisdiction to entertain second appeal on findings of fact even if it was erroneous. In this connection, the Apex court observed as follows:

It is settled law that the High Court has no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact.

As the two Courts, approached the evidence from a correct perspective and gave a concurrent finding of fact, the High Court had no jurisdiction to interfere with the said finding.

To the same effect is another decision of the Hon''ble Apex Court in the case of R. Ramachandran Ayyar Vs. Ramalingam Chettiar, where the Court observed as follows:

But the High Court cannot interfere with the conclusions of fact recorded by the lower Appellate Court, however erroneous the said conclusions may appear to be to the High Court, because as the Privy Council observed, however, gross or inexcusably the error may seem to be there is no jurisdiction u/s 100 to correct that error.

The same view was taken by the Hon''ble Apex court in the case of D. Pattabhiramaswamy V. Hanymayya reported in AIR 1959 SC 57 and Raruha Singh versus Achal Singh reported in AIR 1961 SC 1097.

The conclusion, therefore, is inescapable that this Court should not invoke extraordinary jurisdiction under Article 227 of the Constitution to upset the pure findings of fact of two courts below. The scope of the High Court under Article 227 of the Constitution is limited. This extraordinary jurisdiction can be invoked only when the judgment of the court below is found to be perverse or contrary to material or it results in manifesting injustice. I do not find any ground to upset the pure findings of fact and thus, the writ petition filed by the petitioner deserves to be dismissed and the impugned orders rendered by both the courts below do not warrant any intervention. For these reasons, the writ petition fails and the same being bereft of any merit stands dismissed.