Rajesh and Others vs Poonam Chand

S.S. Kothari, J.

It was next contended by learned counsel for the defendant-appellant that the learned lower Courts have not properly appreciated the evidence on record and findings recorded on the reasonable and bonafide necessity in favour of the plaintiff-respondent are not correct. There is no force in these contentions also. It has been held in The State of U.P. Vs. Ram Chandra Trivedi, para 25 that even gross error cannot be upset in second appeal. It has been held in Mattulal Vs. Radhe Lal, , that finding on the point of reasonable and bonafide necessity are findings of fact and cannot be interfered in second appeal. Reference of Bhairab Chandra Nandan Vs. Ranadhir Chandra Dutta, and Pal Singh Vs. Sunder Singh (Dead) by Lrs. and Others, may also be made here.

(a) Whether Courts below ignored material evidence or acted on the no evidence relating to personal bona fide need?

(b) Whether findings of the Courts below on reasonable and bonafide need is vitiated for not applying and correct legal test and non-consideration of evidence adduced by the defendants?

(c) Whether the Courts below have not evaluated the circumstances and factors in light of well settled principles of law deciding the question of comparative hardships and as such the finding on this issue is vitiated?

(d) Whether finding on issue relating to comparative hardship vitiated for non-consideration the factor of goodwill acquired by the defendants?

(e) Whether Courts below are justified in decreeing the suit on the ground of personal bonafide need and comparative hardship whereas it is established that plaintiff is having another sufficient premises vacant on upper floor of the building and plaintiff is having LPG Stove at his tea stall?

(f) Whether the learned Courts below are justified in decreeing the suit without considering this aspect that how much coal and wood can be stored in the disputed area of 6 x 30?

(g) Whether the learned First Appellate Court is justified in dismissing the appeal and upholding the finding of the trial Court without properly dealt with reasoned and cogent grounds taken in the memo of appeal?

(h) Whether judgment of both the Courts below suffers from patent illegalities and is vitiated by non-consideration of material evidence of the parties?

..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 reasons given by he 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 Govt. of India in 1973 gives historical background regarding ambit and scope of Section 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.

(82) 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.