Karnataka High Court
State Of Karnataka vs Veeranagouda Mallikarjunagouda on 5 October, 1994
Equivalent citations: AIR1995KANT361, ILR1995KAR990, AIR 1995 KARNATAKA 361, (1995) 2 CIVLJ 662
JUDGMENT
1. This is a defendant's second appeal. The State of Karnataka has filed this appeal challenging the judgment and decree dated 30-6-1982 passed by Civil Judge, Gadag in Regular Civil Appeal No. 91/83, reversing the trial Court judgment and decree dated 28-11-1983 passed by the Munsiff Ron in O.S. 7/83, whereby the trial Court has dismissed the plaintiff-respondent's suit and the Appellate Court after having reversed the trial Court decree, decreed the plaintiff claim for declaration to the effect that the plaintiff was born on 28-11-1952 and not on 1st of June 1949.
2. Brief facts of the case are:--
That the plaintiff-respondent filed a suit for declaration that the allegations to the effect that he was born on 28-11-1952 at Abbigeri Taluk, Ron. His parents and members of his family at the time of his birth were uneducated. His father was agriculturist and as such on account of their being uneducated nobody intimated the date of birth of the plaintiff to the concerned authority and so it was not mentioned in the concerned record.
The plaintiff has further averred that he had been admitted to the Primary School when he was attained the age for being put in the school and that he was got admitted in the school by his grand-mother. That his grandmother reported the date of birth of the plaintiff-respondent to be 1-6-1949. The plaintiff's case is that subsequently on 2-8-1982 he found his horoscope in some old records of his family in which his date of birth is mentioned as 28-11-1952 and then it came to his knowledge and notice that his date of birth has wrongly been reported by his grandmother as 1-6-1949 to the school authorities.
3. The plaintiff has however stated that when he got his horoscope he made enquiries from the Tahsildar's office about the entry of his birth in the Tahsil registers of birth and death and he was informed that there is no entry of his birth in the village records of 1949 to 1952. Plaintiff further averred in the plaint that he issued notice to the defendant on 14-10-1982 to get his date of birth corrected and declared as 28-11-1952 instead of 1949. That 28-11-1952 is claimed by plaintiffs to be his birth date though it is mentioned in the plaint as 28-11-1982 vide paragraph 3 thereof to be his date of birth which appears to be typographical mistake, as the plaintiff has sought declaration that 'plaintiff's date of birth is 28-11-1952. The suit was contested by the defendant-appellant. The defendant-appellant denied the plaint allegations and further averred that the said allegations are false and incorrect. The defendant-appellant has asserted that the plaintiff-respondent's date of birth has been 1-6-1949 and not 28-11-1952. The defendant-appellant stated that date of birth of the plaintiff has been recorded in the school register as 1-6-1949 and that is the correct date of birth. The defendant case is that the alleged horoscope has been a concocted document and has been got prepared for ulterior motives and purpose and is inadmissible in evidence to prove the date of birth. Defendant denied that the cause of action accrued to the plaintiff for filing the suit. The defendant further stated the plaintiff was not born in Abbigeri Taluk and as such defendant contended the plaintiff suit was not maintainable and was liable to be dismissed.
The trial Court framed the following issues:--
1. Whether the plaintiff proves that he is born on 28-11-1952?
2. Does the defendant prove that the suit is barred by time?
3. Does defendant prove that the suit is bad for non-joinder of Karnataka Secondary Education Examination Board as a party to the suit?
4. Does defendant prove that there is no cause of action to the present suit?
5. Whether the plaintiff proves that his date of birth was not intimated to the concerned authority by mistake?
6. What order or decree.
4. The learned Munsiff after having recorded the findings of the fact to the effect that plaintiff has failed to prove that he was born on 28-11-1952 and that his date of birth was incorrectly intimated to the concerned authorities, dismissed the suit. As regards other Issues Nos. 2 and 3 the trial Court took view, that in view of the finding given on the merits there is no need to record any finding thereon, i.e., on Issues Nos. 2 and 3. Issue No. 4 was answered in the affirmative to the effect that the plaintiff has no cause of action to file a suit.
5. The trial Court has thus dismissed the plaintiffs suit. Having felt agreed from the judgment and decree of the trial Court, the plaintiff - respondent preferred Regular Appeal No. 91/83. The learned Civil Judge acting as a First Appellate Court reversed the judgment and decree of the trial Court, whereby the trial Court had dismissed the suit. The lower appellate Court decreed the plaintiffs claim for declaration that he was born on 28-11-1952 and that his date of birth is 28-11-1952.
6. Having felt aggrieved from the judgment and the decree of the lower appellate Court the State of Karnataka through the Deputy Commissioner, Dharwad has preferred R.S. A. 952/84 under S. 100 of the Code of Civil Procedure.
7. The plaintiff-respondent, having been served with the notice in this appeal as along back as 22nd April 1985, has not put in his appearance and though the appeal has been listed on good number of dales and had been adjourned at times. This Court has no other course open except to proceed with the hearing thereof ex parte against the plaintiff-respondent. I have heard Smt. L. Y. Prema-vathi, learned Government Pleader at length. Smt. Premavathi, learned counsel for the appellant contended before me that the lower appellate Court committed error of law of substantial nature in setting aside the trial Court decree on the basis of Ex.P-1, i.e., the alleged horoscope which has not been proved on record by the plaintiff either by production of the person who prepared or drew or made the horoscope or by production of either of the parents of the plaintiff-respondent who could have stated on oath if they have got made that horoscope on the birth of the plaintiff-respondent. Smt. L. Y. Premavathi, further submitted that in order to establish that plaintiff was born in village Abbigeri, the appropriate and proper person to be examined would have been the parents of the plaintiff-respondent. But neither of the parents have been produced nor the person who made the horoscope of the plaintiff-respondent was produced in evidence. Smt. Premavathi further contended that his document firstly does not show when it was made at the time of birth of the child or in near proximity thereto and not at later stage for the purpose of seeking reduction of age. She contended that there is no evidence to show that this document is more than 30 years old or that it was prepared more than 30 years ago. She submitted that in the absence of any proof or allegations or evidence on record, to the effect, which may prima facie show that document is more than 30 years old presumption under S. 90 of the Evidence Act could also not applied, so unless the document was proved to have been executed more than 30 years ago the document could not be deemed to have executed by person by whom it purport to have been prepared. She submitted that in this view of the matter, it was necessary for the plaintiff to adduce evidence to prove the horoscope unless the evidence is produced or unless the evidence to that effect has been produced to prove the document the Ex.P-1 could not by face value to be admissible as a piece of evidence. She submitted that Ex.P-1 is the waste paper. She further submitted that when it has not been proved by admissible evidence, it is not admissible as a piece of evidence and that being so Smt. Premavathi, Government counsel contended that the finding which has been arrived at by the Appellate Court the plaintiff has proved his date of birth to be 28-11-1952 is vitiated by error of law and substantial nature. She read over the statement of PW 1 as well and explained the same to me in English. It has come in the evidence of plaintiff that he had no other source of knowledge about his date of birth as 28-11-1952 except the alleged horoscope. It is not the plaintiff case that his parents intimated him that he was born in some time in 1952 or some time in Karthika or Margasera of 1952. She further submitted parents of the plaintiff had been material witnesses from whose statement it could have come what is the real date of birth or year of birth of the plaintiff, and whether he was born at Abbigeri village. But plaintiff has not produced his parents as well as the person who prepared the horoscope from Basaiah Karradagi Matt nor has given any explanation for non-production of these witnesses. Learned counsel further submitted that in such circumstances learned Appellate Court ought to have raised a presumption against the plaintiff-respondent case and ought to have held that these witnesses have not been produced for as if they would have been produced their evidence could have gone against the plaintiff-respondent and erred in law by not raising the presumption under , S. 114 of Evidence Act.
8. The learned counsel for the appellant on the above basis contended that the finding recorded by the lower Appellate Court to the effect that plaintiff was born on 28-11-1952 is vitiated by substantial error of law within the meaning of S. 100 of the Code of Civil Procedure.
9. I have applied my mind to above contention and gone through the record. The jurisdiction of this Court under S. 100 of the Code is confined to substantial question of law. The substantial question of law means a question of law of substantial nature in between the parties the decision of which may materially affect the case. The findings of fact, it is well settled principles of law under S. 100 of Code of Civil Procedure are ordinarily binding on a Court of Second Appeal. It is well settled principles of law that the finding of fact howsoever erroneous, it may be but the same cannot be interfered with in the second appeal. But exception is in regard to the finding of fact arrived at by the Court in illegal manner or by committing error of law. That is if the Court below arrives at a finding of fact, basing the findings partly on inadmissible evidence and partly on admissible evidence then the question of law arises. If the Court below records a finding of fact ignoring certain presumption arising under law or by wrongly raising the one not warranted by law in such a case the finding can be said to suffer from error of law of substantial nature in the same way and if in recording the finding the Court below goes against pleadings of parties and make new case then such finding can be held vitiated by error of law.
10. The leading case on the subject may be referred to by the Division Bench decision reported in Abdul Shakur v. Kotwaleshwar Prasad, and Dilbargai Punjabi v. Sharad Chandra, , in V. Ramachandraiah v. Ramalingam, and Gadesh Singh v. Naithur Singh, 1991 (4) SVIR 456.
11. In the case of Durgachandraiah v. Jawahir Singh, 17 Ind App 122 by their Lordship of the Privy Council it has been laid down that there is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact howsoever gross or inexcusable the error may seem to be if the first appellate Court had before it evidence proper for its consideration in support of the findings. In the case of Abdul Shakur v. Sharad Chandra, . The Division Bench considered the meaning of dicta or expression had before it evidence proper for its consideration'; which phrase constituted condition precedent to the arriving at of finding and observed that there would be violation of the Rule and finding of fact would be assailable in second appeal, if there be no evidence to support the finding, since arriving at a finding of fact on no evidence becomes question of law. Their Lordships further ruled "where a finding of fact is based partly on admissible evidence and partly on inadmissible evidence there would be ground for interference of the High Court in the second appeal (para 22)" see also Nafar Chandra Pal Chowdhury v. Shukur Sheikh, AIR 1918 PC 92.
12. In Ramachandra v. Ram Lingam, , the Hon'ble Supreme Court had been placed to lay down the law as under :--
"It is necessary to remember that Section 100(1)(c) refers to a substantial error or defect in the procedure. The defect or error must be substantial that is one fact to remember; and the substantial error or defect should be such as may possibly have produced error or defect in the decision of the case upon the merits -- that is another fact to be borne in mind. The error or defect in the procedure to which the clause refers is, as the clause clearly and unambiguously indicates, an error or defect connected with, or relating to, the procedure; it is not an error ordefect in the appreciation of evidence adduced by the parties on the merits. That is why, even if the appreciation of evidence made by the lower appellate Court is patently erroneous and the finding of fact recorded in consequence is grossly erroneous, that cannot be said to introduce a substantial error or defect in the procedure. On the other hand, if in dealing with a question of fact, the lower appellate Court has placed the onus on a wrong party and its finding of fact is the result, substantially, of this wrong approach, that may be regarded as a defect in procedure; if in dealing with questions of fact, the lower appellate Court discards evidence on the ground that it is inadmissible and the High Court is satisfied that the evidence was admissible, that may introduce an error or defect in procedure. If the lower appellate Court fails to consider an issue which had been tried and found upon by the trial Court and proceeds to reverse the trial Court's decision without the consideration of such an issue, that may be regarded as an error or defect in procedure; if the lower appellate Court allows a new point of fact to be raised for the first time before it, or permits a party to adopt a new plea of fact, or makes out a new case for a party, that may, in some cases, be said to amount to a defect or error in procedure. 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 has observed, however gross or inexcusable the error may seem to be, there is no jurisdiction under S. 100 to correct that error."
In the present case the finding prima facie appears to be finding of fact and if it would have been case of bare a simple appreciation of evidence this Court would not have interfered with the same. Here in the present case Ex.P-1 the alleged horoscope has not been proved by any one nor to prove the same the person who is mentioned in the document as the person who prepared that horoscope had been examined nor there is anything in the statement of PW 1 that his father told him that he got horoscope prepared and made at the time of birth or at any time subsequent proximity to the birth of the plaintiff. There is no evidence that the date of birth mentioned in the horoscope has been conveyed to the person making horoscope by the father or mother of the plaintiff nor the plaintiff's father or mother have been examined. The paper of horoscope also does not show that it is document which can be said to have been made more than 30 years ago. PW 1 has also not stated in his evidence to the effect that his father or mother has told him that he was born in the village Abbigeri nor as he stated by whom his date of birth was communicated to the Pandit or person preparing the horoscope or by whom the document Ex.P-1 appears to have been prepared. When document does not appear to be more than 30 years old the presumption under S. 90 of the Evidence Act cannot be made applicable and as such burden was on the plaintiff to prove horoscope as well as the fact that of its havjng been made or prepared at the time of birth or in near proximity of time after the date of birth. But there is no evidence on record on the basis of which it could be said or held that this document has been proved. There is nothing in the statement of PW 1 proving Ex.P-1. There is nothing on statement of record as to how he did come to know about his date of birth to be 28-11-1952 nor is there any evidence on record to show that he came to know about his date of birth from any other source except Ex.P-1. In such circumstances in my opinion the above evidence has been inadmissible and that as the finding of fact has been arrived at by the learned lower appellate Court either on the basis no evidence or on the basis of inadmissible evidence namely Ex.P-1 which has not been proved, and the statement of PW I who also does not indicate nor shows any source of his knowledge about the date of birth as 28-11-1952. In my opinion the finding of the lower appellate Court is vitiated by error of law of substantial nature as it is based on no evidence, i.e., on no admissible evidence. The finding appears to be based on simple conjectures and surmise and on inadmissible piece of document as such is vitiated by error of law and as such the decree that has been passed in favour of the plaintiff-respondent by the lower appellate Court after having set aside the decision of the trial Court is illegal and as it is vitiated by substantial error of law. I find my above opinion and conclusion finds support from the follow observation of their Lordships of Supreme Court in Rama Lingam's case refer to above. In Rama Lingam's case, . The Supreme Court made reference to the decision of Privy Council in Rani Hemant Kumari Debi v. Brojendra Kishore Roy Chowdhry's case, (1890) LR 17 IA 65 and proposition of laid their in observed as under :--
"This decision merely shows that if a finding of fact has been recorded by the first appellate Court without any evidence, that finding can be successfully challenged in second appeal, because a finding of fact which is not supported by any evidence can be questioned under S. 100."
All that the said observation means is that it should be case where the evidence which is accpeted hy Lower Appellate Court, no reasonable person could have accepted as admissible piece of evidence and that really amounts to saying that there is no evidence at all. It is in this sense that the said observations should be construed and then it would be consistent with the decision in the case of Mst. Durga Chodhraian (1) (1980) LR 17 IA 122. Therefore we are inclined to treat this decision as supporting the proposition that High Court can interfere with the conclusion of fact recorded by Lower Appellate Court if said conclusion is not supported by any admissible evidence.
13. Thus considered I am of the opinion that lower appellate Court's Judgment and decree deserves to be set aside and second appeal deserves to be allowed. I do hereby allow the second appeal after having set aside the lower appellate Court decree. The trial Courts decree dated 28-11-1983, in O.S. No. 7 of 1983 dismising the plaintiff-respondent suit is being restored and affirmed. The plaintiff suit shall stand dismissed. Second appeal having been allowed, it is hereby ordered that the costs of the second appeal as well as of the Courts below shall be borne by the parties themselves.
14. Appeal allowed.