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Kanhaiya Lal Sharma and ors. Vs. Mahanat Abhai Das and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberRegular Second Appeal No. 140D of 1966
Judge
Reported in5(1969)DLT321
ActsCode of Civil Procedure (CPC), 1908 - Sections 100
AppellantKanhaiya Lal Sharma and ors.
RespondentMahanat Abhai Das and ors.
Advocates: R.L. Tandon and; Roshan Lal, Advs
Cases ReferredV. Ramchandra v. Ramalwgam
Excerpt:
.....of jfact which vitally affects the issue stated in the case. in either case the failure is a failure in the duty imposed by law vpon the court and the question whether there has been such a failure must in their lordships' opinion be a ques- corporation of law. -the question about the limits of the jurisdiction of the high court in entertaining second appeals has been considered by several high courts in india as well as the privy council on numerous occa- sions, and the true legal position in that behalf is nto at all in doubt. in hearing a second appeal, if the h'gh court is satisfied that the de- cision is contrary to law or some usage having the force of law. or that the decision has failed to determine some material issue of liw or usage having the force of law. ' (9) the..........on the scope of the provisions of section 100, civil procedure code, some learned judges of the high courts are disposing of second appeals as if they were first appeals. this introduces, apart from the fact that the high court assumes and exercises a jurisdiction which it does nto possess, a gambling element in the litigation and confusion in the mind of the litigant public.'(7) if, thereforee, there is legally admissible evidence on which the conclusions of fact are sapportable, then the decision of the first appellate court however unsatisfactory it might be if examined must, in my opinion, stand as final. the mere fact that the high court would have come to a different conclusion is scarcely a ground for entertaining a second appeal see shankar das v. bilbhar singh in inder singh......
Judgment:

I.D. Dua, C.J.

(1) In this regular second appeal, the judgment and decree of a learned Additional District Judge, Delhi, dated 23rd March, 1966 affirming the decree of a learned Subordinate Judge, 1st Class dated 20th September, 1965 is impugned.

(2) Shri Kanhaiya Lal Sharma, Smt. Ferozi Deviand Smt. Bhanwari Devi (appellants in this Court) instituted the suit, out of which this appeal arises, for a declaration and consequential relief and for rendition of accounts and injunction against six defendants. The only issue on the merits which arose for trial was whether the plaintiffs had given up their share in the qutoa rights in suit as alleged in the written statement. The trial Court, in a fairly detailed judgment, came to the conclusion that the plaintiffs had given up their share in the qutoa rights in suit in consideration of the amount paid to the plaintiffs vide cheques Exhibits D. W. 3/1 to D. W. 3/3.

(3) The matter was taken by the plaintiffs on appeal to the Court of the District Judge and a learned Additional District Judge again went into the matter and after considering the arguments addressed in his Court affirmed the judgment and decree of the trial Court and dismissed the appeal. In the judgment of the lower Appellate Court, it has been observed that only Kanhaiya Lal had come into the witness-box, but he did nto say what amount had been invested by him towards the capital of the firm in question. The plaintiffs, according to the judgment of the lower Appellate Court, had laid their entire stress on the agreement dated 26th March, 1960 (Exhibit P. 1) which contemplated their enjoyment of one-fourth share in the qutoa rights and the import licenses. The defendant's case was, to qutoe the language of the lower Appellate Court, that 'they were blackmailed into executing that agreement by depriving them of the qutoa for two years and they are nto bound by this agreement because it was subsequently cancelled.' This agreement, according to the defendants, contemplated going into accounts once again, but it did nto provide for payment of any amount to the plaintiffs beyond their contribution to the firm's capital and profits and further that they had received huge sums through cheques. After considering the respective statements of the parties, the lower Appellate Court felt impressed by the defendant's reply. After discussing the respective contentions of the parties, the lower Appellate Court expressed itself thus:-

'BUT, Bhanwari Devi and Ferozi Devi had nto come forward to the Court to say that they did nto break up entire connection with the firm and some rights still vest in them and it can be presumed from their non-appearance, vide 1957 P. L. R. 517, that they had no such rights left. Abbey Dass, one of the defendants, made a statement in Court that on the payment of Rs 6600.00 the plaintiffs surrendered all their rights in import licenses and qutoas and he was supported by Gauri Shanker (D. S. 4) and Jagdish Parshad (P. W, 5). On the toher hand, there was the statement of Kanhaiya Lal based and partialy supported by nobody. The trial court, thereforee, rightly accepted the defendants' version of the case. The reliefs of declaration and infunction sought by the plaintiffs are equitable ones and to the same their conduct disentitles them. As has bee4n seen, the Chief Controller of Imports and Exports has to deal with M/s Ram Kishan Dass and Sons and with that firm the plaintiffs have no connection. There is no reason why they should have any share in the qutoas, etc. to be distributed after the date of their retirement. They have already withdrawn the. amounts invested by them Kanhaya Lal is a Government servant and the two ladies also do nto work for the firm. It is nto conceivable on what account they should have anything from the firm.'

(4) On seconed appeal, the learned counsel for the plaintiff- appellants, Shri R. L. Tandon, has, in his usual persuasive manner, tried to re-open the case on the evidence by suggesting that the lower Appellate Court has approached the consideration of the case from an erroneous point of view. The conclusions of the lower Appellate Court which are prima fade conclusions of fact, and which affirm the conclusions of the trial Court, have been sought to be challenged on the basis of this argument and it is also contended that findings of fact are nto supported by any evidence on the record.

(5) The legal position in regard to second apoeals may first be stated. If the evidence on which the Courts of fact have acted is admissible or relevant, it is nto open to a party feeling aggrieved by the findings recorded by the Courts of fact to contend before the High Court in second appeal that the said evidence is nto sufficient to fustify the findings of fact in question. In Ramappa v. Bojjappa, the Supreme Court said:-

'IT may be that in some cases, the High Court dealing with the second appeal is inclined to take the view that what it regards to be justice or equity of the case has nto been served by the findings of fact recorded by Courts of fact : but on such occasions it is necessary to remember that what is administered in Courts is justice according to law and considerations of fair play and equity however important they may be, must yield to clear and express provisions of the law. If in reaching its decisions in second appeals, the High Court contravenes the express provisions of section 100, it would inevitably introduce in such decisions an element of disconcerting unpredictablity which is usually associated with gambling ; and that is a reproach which judicial process must constantly and scrupulously endeavor to avoid.'

--- *** ---

(6) Earlier in Deity Pattabhiramaswamy v. S. Hanymayya, alter referring to Privy Council decisions in Mussummat Durga Choudhrain v. Jawahir Singh Choudhri and Walt Mohammad v. Mohammad Baksh, it had been observed by the Supreme Court :-

'BUT, ntowithstanding such clear and authoritative pronouncements on the scope of the provisions of Section 100, Civil Procedure Code, some learned Judges of the High Courts are disposing of Second Appeals as if they were first appeals. This introduces, apart from the fact that the High Court assumes and exercises a jurisdiction which it does nto possess, a gambling element in the litigation and confusion in the mind of the litigant public.'

(7) If, thereforee, there is legally admissible evidence on which the conclusions of fact are sapportable, then the decision of the first appellate Court however unsatisfactory it might be if examined must, in my opinion, stand as final. The mere fact that the High Court would have come to a different conclusion is scarcely a ground for entertaining a second appeal see Shankar Das v. Bilbhar Singh In Inder Singh. v. Shiv Ram* decided by the Supreme Court on 12th September, 1961, it was observed as under :-

'IF in fact there was no legal evidence in support of the conclusion of the Trial Court and the Court of First Appeal that Shiv Ram had ntoica of the previous transfers the High Court would be perfectly right in interfering with the decisions of those courts. If, on the contrary, the real position is that there was evidence which could in law form the basis of that conclusion, even though antoher conclulion may appear correct and even more reasonable the High Court would have no right to interfere. It appears to us on a consideration of the materials on the record that the learned High Court Judge was nto justified in saying that 'there was no real evidence on the record from which the lower courts could have inferred ntoice of the previous sale to Shiv Ram.'

(8) It is sometimes sought to get over section 100 of the Code of Civil Procedure by arguing that the Courts below have approached the con- sideration of the case from an erroneous point of view. This argument, in order to be acceptable, must substantiate that the Court below has misunderstood the real point for determination, for if the final Court of fact understanding the real point it is called upon to determine, arrives at a finding of fact, then such finding cannto easily be assailed on second appeal, however erroneous on the merits it may be considered to be by the High Court. In Sheikh Rahmat llahi v. Mohammad Hay at Khan', the legal position was stateri in these words:-

'IF in fact the plaintiffs' allegation that there had never been any debt were found to be correct, the proceedings for enforcing the bond by an arbitration followed by a suit for a decree might well assume a very serious complexion. The failure of the Courts below to investigate and come to a finding upon this basic question of fact con- sitituted, in their Lordships' view, a serious error in law against which the plaintiff was entitled to relief upon a second appeal. The material words of S. 100, Civil P.O., are as follows:- 'An appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to a High Court on any of the following grounds, namely : the- decision being contrary to law.' and in their Lordships' view those words directly cover the present case. There Lordships had occasion to point out in Damusa v. Abdul Samad', that where the Courts below had misconceived the real question of fact they had to try there was an error of law on which a second appeal lay: and their Lordships can see no difference in principle oetween a failure to appreciate and determine the real question of fact to be tried and a failure to appreciate and determine a question of jfact which vitally affects the issue stated in the case. In either case the failure is a failure in the duty imposed by law vpon the Court and the question whether there has been such a failure must in their Lordships' opinion be a ques- corporation of law.'

'STILL more recently, in V. Ramchandra v. Ramalwgam', it was observed: - 'The question about the limits of the jurisdiction of the High Court in entertaining second appeals has been considered by several High Courts in India as well as the Privy Council on numerous occa- sions, and the true legal position in that behalf is nto at all in doubt. In hearing a second appeal, if the H'gh Court is satisfied that the de- cision is contrary to law or some usage having the force of law. or that the decision has failed to determine some material issue of liw or usage having the force of law. or if there is a substantial error or defect in the procedure provided by the Code, or by any toher law for the time being in force which may have produced error or defect in the decision of the case upon the merits, it can interfere with the conclusions of the lower appellate Court. That, in plain terms, is what cls. (a) (b) and (c) of S. 100(1) provide.'

(9) The Supreme Court then reviewed earlier authoritative decisions like that in Durga Chowdhrain's case and said:-

'IT is necessary to remember that S 100(1) (c) refers to a substantial error or defect in the procedure. * * * * But the High Court cannto 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 has observed, however gross or inexcusable the error may seem to be, there is no jurisdiction under S 100 to correct that error.'

(10) The argument of erroneous approach to prevail, in my view, must involve some error of law or usage having the force of law or a defect of procedure and nto merely in appreciating the evidence. Ignoring material evidence is also in certain circumstances a legal infirmity, but that is nto the same thing as omission to refer in detail to all pieces of evidence in the judgment. In the case in hand, the Court of first instance was unable to agree with the plaintiffs' counsel on a consideration of the entire evidence on the record and of the circumstances of the case. The statements of the witnesses for the defendants were also held to be supported by the circumstances which went strongly against the plaintiffs. Indeed, that Court came to a positive conclusion that the plaintiffs must have obtained Rs. 6,600.00 from defendant No. 1 on 30th December, 1960 in consideration of their relinquishing the rights in the qutoa rights and import licenses. The learned Additional District Judge on first appeal relied upon the testimony of Gauri Shankar and Jagdish Pershad and agreed with the trial Court in accepting the defendants' version of the case. D.W. 4, Gauri Shankar, it is nto disputed, has made a statement which negatives the plaintiffs' claim. Jagdish Pershad, D. W. 5, has deposed to the same effect on this point as has Gauri Shankar. After considering the arguments addressed at the bar, I am unable to hold that the judgment of the lower Appellate Court suffers from any legal infirmity which would justify intereference on second appeal. Section 100, Civil P.C., is a clear bar to re-evaluation of the evidence for the purpose of testing the correctness of conclusions of fact. This appeal accordingly fails and is dismissed, but without any order as to costs.


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