Madhya Pradesh High Court
Kalwati Alias Kallo Bai Ghosi D/O Shri ... vs Rajesh Kumar Singhai on 13 September, 2019
Equivalent citations: AIRONLINE 2019 MP 1038
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
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The High Court of Madhya Pradesh
SA No.906 of 2018
Kalwati alias Kallo Bai Ghosi vs. Rajesh Kumar Singhai
Gwalior, dtd. 13/09/2019
Shri Ashok Kumar Jain, Counsel for the appellant.
This Second Appeal under Section 100 of CPC has been filed against
the judgment and decree dated 24/01/2018 passed by First Additional
District Judge, Ashok Nagar in Civil Appeal No.107-A of 2014, thereby
affirming the judgment and decree dated 03/07/2014 passed by Second
Civil Judge, Class-II, Ashok Nagar in Civil Suit No.112-A of 2011.
(2) The necessary facts for disposal of the present appeal in short are that
the plaintiff/respondent had filed a suit for eviction as well as for recovery
of arrears of rent and mesne profit. It was his case that the house is situated
in Ward No.15 (which has been renumbered as Ward No.16, Ashok Nagar)
and its area is 11072.21 sq.ft. The said house was bequeathed by late
Rajkumar Singh Chauhan to Yashvardhan Singh Chauhan by executing a
Will, who in his turn, has sold same to the plaintiff by registered sale deed
dated 01/07/2006, for a consideration amount of Rs.4 lac. It was pleaded
that after the sale deed, the plaintiff became the solitary owner and in
possession of the said house and his name was also mutated in the record of
Municipal Corporation. The house in question was initially let out to
Hardeva Ghosi and after his death, the appellant/defendant is in possession
of the said house, being daughter of the original tenant and this fact is also
mentioned in the sale deed. The information of the sale deed was duly
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given to the appellant/ defendant. It was pleaded that the defendant is
residing in a separate house but after the death of her father, she is
maintaining the possession over the tenanted premises and in spite of
repeated demands, the rent has not been paid and in the month of July, 2008
substantial damage was caused to the tenanted premises and a Neem Tree,
which was also standing in the said premises, was cut. A report was also
lodged by the plaintiff on 28/07/2008. Since the defendant was trying to
raise construction over the property in dispute, therefore, a notice dated 30 th
July, 2008 was sent by the plaintiff for payment of arrears of rent as well as
for damages caused to the property and the tenancy of the defendant was
also terminated. However, neither the notice was replied by the defendant
nor the vacant possession of the tenanted premises was handed over. On the
contrary, the area shown as ''ABCD'' was also encroached upon. Since the
copy of the notice, postal receipt as well as copy of police report were
misplaced, therefore, the suit could not be filed immediately and
accordingly, one more notice dated 17/06/2011 was sent and the tenancy
was once again terminated with effect from the afternoon of 31/07/2011
and the compensation amount as well as the arrears of rent were demanded.
The defendant refused to accept the said notice and such endorsement is
mentioned by the Postman on the envelope. Accordingly, the suit was filed
for eviction as well as for arrears of rent and damages to the extent of
Rs.10,000/- caused by the defendant.
(3) The defendant filed her written statement and pleaded that the area
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shown as ''ABCD'' was the part of the tenanted premises. She was left by
her husband and from thereafter, she was residing with her father Hardeva
Ghosi. The tenanted premises was let out by Rajkumar Singh Chauhan at
the rate of Rs.16/- per month. However, in the year 1979, the rent was
enhanced to Rs.20/- per month and after the death of her father, the
defendant is residing in the tenanted premises. Neither the defendant is
aware of the sale deed nor she was given any show cause notice for
payment of rent. It was denied that the defendant is residing in some other
house. Even the allegation of cutting a Neem Tree was also denied. On the
contrary, it was pleaded that in fact, the branches of Neem Tree were cut
by the Electricity Department as they were causing hindrance to the electric
wires. She further denied that she is the tenant of the plaintiff since
01/07/2006. The plaintiff had lodged the report on incorrect fact. The notice
sent by the plaintiff was also denied. It was further pleaded that since the
suit has been filed on 23/08/2011, therefore, the plaintiff is not entitled for
arrears of rent for more than last three years and it was further pleaded that
the defendant has already deposited the rent i.e. Rs.800/- for the month of
August, 2008 to December, 2011 in the Court on 14/11/2011. It was further
pleaded by the defendant that the plaintiff has an alternative
accommodation situated in Wards No.11 and 22. It was further pleaded
that the plaintiff has a shop and house in Ward No.17. The defendant had
carried out some repairing works, which was improperly projected by the
plaintiff. Thus, it was prayed that the suit filed by the plaintiff be dismissed.
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(4) The Trial Court after framing issues and recording the evidence,
decreed the suit on the ground that the defendant has not complied with the
provisions of Section 12(3) of MP Accommodation Control Act because as
per receipt dated 14/11/2011 and thereafter, on 10/12/2012, 20/02/2013 and
27/06/2014 , the rent was deposited. After service of notice, neither the
defendant had paid the arrears of rent to the plaintiff nor had deposited the
same in the Court within a period of one month. It was further held that
from the receipt Ex.D16 it is apparent that the defendant had deposited the
rent for the month of August, 2008 to December, 2011 only. Thus, it was
held that since the defendant had not deposited the arrears of rent within a
period of two months from the date of service of notice dated 17/06/2011
and did not deposit the arrears of rent within a period of one month from
the date of receipt of summons of suit, therefore, she is liable to be evicted
on the ground of arrears of rent.
(5) So far as the question of causing extensive damage to the suit
premises is concerned, it was held that the plaintiff has failed to prove that
the defendant had caused any substantial damage to the suit premises or cut
the Neem tree. However, it was held that the plaintiff has proved that the
defendant has encroached upon a part of premises. Therefore, it was held
that a decree under Section 12(1)(o) of MP Accommodation Control Act is
liable to be granted. It was held that the plaintiff is entitled for mesne profit
@ Rs.100/- per month from the date of termination of tenancy i.e.
01/08/2011 till the vacant possession is handed over. The prayer for grant
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of damages to the tune of Rs.10,000/- was also dismissed.
(6) Being aggrieved by the judgment and decree passed by the Trial
Court, the appellant filed an appeal, which too suffered dismissal by
judgment and decree dated 24/01/2018.
(7) Challenging the judgment and decree passed by the Courts below, the
present appeal has been filed on the following proposed substantial
questions of law:-
''(i) Whether both the Courts below have erred in law in not
dismissing the suit of the present plaintiff?
(ii) Whether the suit can be decreed under Section 12() of the MP
Accommodation Control Act after depositing the arrears of rent?
(iii) Whether learned courts below have committed error in
decreeing the suit that plaintiff has not mentioned in the that on
what day cause of action is accrued to the plaintiff and suit filed by
the plaintiff is barred by limitation ?
(iv) Whether both the courts below have erred in law in decreeing
the suit of the plaintiff that defendant has proved that she is
deposited the rent on 14.11.2011 and in this regard finding already
mentioned in para 6 of last line by the learned trial court?
(v) Whether both the courts below have erred in law in decreeing
the suit of the plaintiff ignoring this fact that the sale deed executed
on 1st July 2006 on the basis of Will are valid while Will in favour
of executants of sale deed was not proved and learned trial court
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framed this issue in this regard or not?
(vi) Whether both the courts below have erred in law in decreeing
the suit of the plaintiff while deciding the issue no.3 comes to the
conclusion that tree of Neem was not cutting by the defendant only
she possessed only open land?
(vii) Whether both the courts below have erred in holding that the
plaintiff is entitled Rs.100/- as fine as a encroacher?
(viii) Whether both the courts below have erred in law in not
granting the decree of eviction inspite of there being a finding that
defendant deposited the rent?
(ix) Whether the learned courts below have committed illegality and
jurisdictional error in decreeing the suit of the plaintiff?
(x) Whether the findings of the learned court below are perverse?''
(8) The Courts below have specifically held that the defendant had not
deposited the arrears of rent within a period of two months from the date of
notice as well as within a period of one month from the date of receipt of
summons of suit. No prayer for extension of time was made. Even the
defendant had not deposited the rent regularly before the Court also.
Accordingly, a concurrent finding has been recorded that as the defendant
had committed a default in depositing the rent, therefore, she is liable to be
evicted on the ground of arrears of rent. Similarly, it has been held that the
appellant has encroached the additional land, which was not let out to her
father. Both the findings of fact are concurrent findings of fact.
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(9) It is submitted by the Counsel for the appellant that since the
plaintiff has failed to prove the execution of ''Will'' in favour of
Yashvardhan Singh Chauhan by Rajkumar Singh Chauhan, therefore, no
title stood be transferred by virtue of sale deed executed by Yashvardhan
Singh Chauhan. It is prayed that as the plaintiff was not the landlord of the
property in dispute, therefore, the Courts below have committed a material
illegality by passing a decree in his favour.
(10) Considered the submissions made by the Counsel for the appellant.
(11) In the written statement, the appellant had not challenged the
genuineness of the ''Will'' executed by Rajkumar Singh Chauhan in favour
of Yashvardhan Singh Chauhan. In the written statement it was merely
pleaded that she has no knowledge about the ''Will'' executed by Rajkumar
Singh Chauhan and in case, if the said Will is proved, then the defendant
will have no objection. Thus, the ''Will'' was never challenged by the
defendant. Further, it is well-established principle of law that in the suit for
eviction, the question of title cannot be decided. Furthermore, no issue with
regard to the ''Will'' was framed, for the obvious reason, that the Will was
never challenged. Even otherwise, if the appellant was of the view that she
has challenged the ''Will'' in paragraph 2 of her written statement, then she
should have filed an application for framing additional issues with regard to
the genuineness of Will. Since no application was filed by the defendant in
this regard, therefore, it is clear that the defendant had filed the written
statement with full knowledge that the question of ''Will'' is not involved in
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the suit.
(12) Under these circumstances, this Court is of the considered opinion
that as the defendant/ appellant has failed to show that the concurrent
findings of fact recorded by the Courts below are perverse, therefore, while
exercising power under Section 100 of CPC this Court cannot interfere
with the concurrent findings of fact although the same may be erroneous.
(13) The Supreme Court in the case of Damodar Lal Vs. Sohan Devi and
others reported in (2016) 3 SCC 78 has held as under :
"8. "Perversity" has been the subject-matter of umpteen
number of decisions of this Court. It has also been
settled by several decisions of this Court that the first
appellate court, under Section 96 of the Civil Procedure
Code, 1908, is the last court of facts unless the findings
are based on evidence or are perverse.
9. In Krishnan v. Backiam, (2007) 12 SCC 190 it has
been held at para 11 that: (SCC pp. 192-93)
"11. It may be mentioned that the first appellate
court under Section 96 CPC is the last court of facts.
The High Court in second appeal under Section 100
CPC cannot interfere with the findings of fact
recorded by the first appellate court under Section 96
CPC. No doubt the findings of fact of the first
appellate court can be challenged in second appeal
on the ground that the said findings are based on no
evidence or are perverse, but even in that case a
question of law has to be formulated and framed by
the High Court to that effect."
10. In Gurvachan Kaur v. Salikram, (2010) 15 SCC
530 at para 10, this principle has been reiterated:
(SCC p. 532)
"10. It is settled law that in exercise of power
under Section 100 of the Code of Civil
Procedure, the High Court cannot interfere with
the finding of fact recorded by the first
appellate court which is the final court of fact,
unless the same is found to be perverse. This
9
being the position, it must be held that the High
Court was not justified in reversing the finding
of fact recorded by the first appellate court on
the issues of existence of landlord-tenant
relationship between the plaintiff and the
defendant and default committed by the latter
in payment of rent."
The Supreme Court in the case of Pakeerappa Rai Vs. Seethamma
Hengsu Dead by L.R.s and others reported in (2001) 9 SCC 521 has held
as under :-
"2.......... But the High Court in exercise of power
under Section 100 CPC cannot interfere with the
erroneous finding of fact howsoever gross the error
seems to be......."
The Supreme Court in the case of Gurdev Kaur and Others Vs.
Kaki and Others, reported in (2007) 1 SCC 546 has held as under :-
"46. In Bholaram v. Ameerchand (1981) 2 SCC 414 a
three-Judge Bench of this Court reiterated the statement
of law. 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.
47. In Kshitish Chandra Purkait v. Santosh Kumar
Purkait (1997) 5 SCC 438 a three-Judge Bench of this
Court held: (a) that the High Court should be satisfied
that the case involved a substantial question of law and
not mere question of law; (b) reasons for permitting the
plea to be raised should also be recorded; (c) it has the
duty to formulate the substantial questions of law and to
put the opposite party on notice and give fair and proper
opportunity to meet the point. The Court also held that it
is the duty cast upon the High Court to formulate
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substantial question of law involved in the case even at
the initial stage.
48. This Court had occasion to determine the same issue
in Dnyanoba Bhaurao Shemade v. Maroti Bhaurao
Marnor (1999) 2 SCC 471. The Court stated that the
High Court can exercise its jurisdiction under Section
100 CPC only on the basis of substantial questions of law
which are to be framed at the time of admission of the
second appeal and the second appeal has to be heard and
decided only on the basis of such duly framed substantial
questions of law.
49. A mere look at the said provision shows that the High
Court can exercise its jurisdiction under Section 100 CPC
only on the basis of substantial questions of law which
are to be framed at the time of admission of the second
appeal and the second appeal has to be heard and decided
only on the basis of such duly framed substantial
questions of law. The impugned judgment shows that no
such procedure was followed by the learned Single Judge.
It is held by a catena of judgments by this Court, some of
them being, Kshitish Chandra Purkait v. Santosh Kumar
Purkait (1997) 5 SCC 438 and Sheel Chand v. Prakash
Chand (1998) 6 SCC 683 that the judgment rendered by
the High Court under Section 100 CPC without following
the aforesaid procedure cannot be sustained. On this short
ground alone, this appeal is required to be allowed.
50. In Kanai Lal Garari v. Murari Ganguly (1999) 6
SCC 35 this Court has observed that it is mandatory to
formulate the substantial question of law while
entertaining the appeal in absence of which the judgment
is to be set aside. In Panchugopal Barua v. Umesh
Chandra Goswami (1997) 4 SCC 713 and Santosh
Hazari v. Purushottam Tiwari (2001) 3 SCC 179 the
Court reiterated the statement of law that the High Court
cannot proceed to hear a second appeal without
formulating the substantial question of law. These
judgments have been referred to in the later judgment of
K. Raj v. Muthamma. A statement of law has been
reiterated regarding the scope and interference of the
Court in second appeal under Section 100 of the Code of
Civil Procedure.
51. Again in Santosh Hazari v. Purushottam Tiwari
(2001) 3 SCC 179 another three-Judge Bench of this
Court correctly delineated the scope of Section 100 CPC.
11
The Court observed that an obligation is cast on the
appellant to precisely state in the memorandum of appeal
the substantial question of law involved in the appeal and
which the appellant proposes to urge before the Court. In
the said judgment, it was further mentioned that the High
Court must be satisfied that a substantial question of law
is involved in the case and such question has then to be
formulated by the High Court. According to the Court the
word substantial, as qualifying "question of law", means
--of having substance, essential, real, of sound worth,
important or considerable. It is to be understood as
something in contradistinction with--technical, of no
substance or consequence, or academic merely. However,
it is clear that the legislature has chosen not to qualify the
scope of "substantial question of law" by suffixing the
words "of general importance" as has been done in many
other provisions such as Section 109 of the Code and
Article 133(1)(a) of the Constitution.
52. In Kamti Devi v. Poshi Ram (2001) 5 SCC 311 the
Court came to the conclusion that the finding thus reached
by the first appellate court cannot be interfered with in a
second appeal as no substantial question of law would
have flowed out of such a finding.
53. In Thiagarajan v. Sri Venugopalaswamy B. Koil
(2004) 5 SCC 762 this Court has held that the High Court
in its jurisdiction under Section 100 CPC was not justified
in interfering with the findings of fact. The Court
observed that to say the least the approach of the High
Court was not proper. It is the obligation of the courts of
law to further the clear intendment of the legislature and
not frustrate it by excluding the same. This Court in a
catena of decisions held that where findings of fact by the
lower appellate court are based on evidence, the High
Court in second appeal cannot substitute its own findings
on re-appreciation of evidence merely on the ground that
another view was possible.
54. In the same case, this Court observed that in a case
where special leave petition was filed against a judgment
of the High Court interfering with findings of fact of the
lower appellate court. This Court observed that to say the
least the approach of the High Court was not proper. It is
the obligation of the courts of law to further the clear
intendment of the legislature and not frustrate it by
excluding the same. This Court further observed that the
12
High Court in second appeal cannot substitute its own
findings on re-appreciation of evidence merely on the
ground that another view was possible.
55. This Court again reminded the High Court in Commr.,
HRCE v. P. Shanmugama (2005) 9 SCC 232 that the
High Court has no jurisdiction in second appeal to
interfere with the finding of facts.
56. Again, this Court in State of Kerala v. Mohd. Kunhi
(2005) 10 SCC 139 has reiterated the same principle that
the High Court is not justified in interfering with the
concurrent findings of fact. This Court observed that, in
doing so, the High Court has gone beyond the scope of
Section 100 of the Code of Civil Procedure.
57. Again, in Madhavan Nair v. Bhaskar Pillai (2005) 10
SCC 553 this Court observed that the High Court was not
justified in interfering with the concurrent findings of
fact. This Court observed that it is well settled that even if
the first appellate court commits an error in recording a
finding of fact, that itself will not be a ground for the
High Court to upset the same.
58. Again, in Harjeet Singh v. Amrik Singh (2005) 12 SCC
270 this Court with anguish has mentioned that the High
Court has no jurisdiction to interfere with the findings of
fact arrived at by the first appellate court. In this case, the
findings of the trial court and the lower appellate court
regarding readiness and willingness to perform their part
of contract was set aside by the High Court in its
jurisdiction under Section 100 CPC. This Court, while
setting aside the judgment of the High Court, observed
that the High Court was not justified in interfering with
the concurrent findings of fact arrived at by the courts
below.
59. In H.P. Pyarejan v. Dasappa 92006) 2 SCC 496
delivered on 6-2-2006, this Court found serious infirmity
in the judgment of the High Court. This Court observed
that it suffers from the vice of exercise of jurisdiction
which did not vest in the High Court. Under Section 100
of the Code (as amended in 1976) the jurisdiction of the
Court to interfere with the judgments of the courts below
is confined to hearing of substantial questions of law.
Interference with the finding of fact by the High Court is
not warranted if it invokes re-appreciation of evidence.
This Court found that the impugned judgment of the High
Court was vulnerable and needed to be set aside."
13
The Supreme Court in the case of Municipal Committee,
Hoshiarpur Vs. Punjab SEB and Others, reported in (2010) 13 SCC
216 has held as under:-
"16. Thus, it is evident from the above that the right to
appeal is a creation of statute and it cannot be created by
acquiescence of the parties or by the order of the court.
Jurisdiction cannot be conferred by mere acceptance,
acquiescence, consent or by any other means as it can be
conferred only by the legislature and conferring a court or
authority with jurisdiction, is a legislative function. Thus,
being a substantive statutory right, it has to be regulated in
accordance with the law in force, ensuring full compliance
with the conditions mentioned in the provision that creates
it. Therefore, the court has no power to enlarge the scope
of those grounds mentioned in the statutory provisions. A
second appeal cannot be decided merely on equitable
grounds as it lies only on a substantial question of law,
which is something distinct from a substantial question of
fact. The court cannot entertain a second appeal unless a
substantial question of law is involved, as the second
appeal does not lie on the ground of erroneous findings of
fact based on an appreciation of the relevant evidence. The
existence of a substantial question of law is a condition
precedent for entertaining the second appeal; on failure to
do so, the judgment cannot be maintained. The existence
of a substantial question of law is a sine qua non for the
exercise of jurisdiction under the provisions of Section 100
CPC. It is the obligation on the court to further clear the
intent of the legislature and not to frustrate it by ignoring
the same. (Vide Santosh Hazari v. Purshottam Tiwari;
Sarjas Rai v. Bakshi Inderjit Singh; Manicka Poosali v.
Anjalai Ammal; Sugani v. Rameshwar Das; Hero Vinoth v.
Seshammal; P. Chandrasekharan v. S. Kanakarajan;
Kashmir Singh v. Harnam Singh; V. Ramaswamy v.
Ramachandran and Bhag Singh v. Jaskirat Singh.)
17. In Mahindra & Mahindra Ltd. v. Union of India
(1979) 2 SCC 529 this Court observed*:
"12. ... it is not every question of law that could be
permitted to be raised in the second appeal. The
parameters within which a new legal plea could be
14
permitted to be raised, are specifically stated in sub-
section (5) of Section 100 CPC. Under the proviso,
the Court should be 'satisfied' that the case involves
a 'substantial question of law' and not a mere
'question of law'. The reason for permitting the
substantial question of law to be raised, should be
'recorded' by the Court. It is implicit therefrom that
on compliance of the above, the opposite party
should be afforded a fair or proper opportunity to
meet the same. It is not any legal plea that would be
alleged at the stage of second appeal. It should be a
substantial question of law. The reasons for
permitting the plea to be raised should also be
recorded." [Kshitish Chandra Purkait v. Santosh
Kumar Purkait, (1997) 5 SCC 438, pp. 445-46,
para 10]
18. In Madamanchi Ramappa v. Muthaluru Bojjappa
AIR 1963 SC 1633 this Court observed: (AIR pp. 1637-
38, para 12)
"12. ... Therefore, whenever this Court is satisfied
that in dealing with a second appeal, the High Court
has, either unwittingly and in a casual manner, or
deliberately as in this case, contravened the limits
prescribed by Section 100, it becomes the duty of
this Court to intervene and give effect to the said
provisions. 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 not 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 unpredictability which is
usually associated with gambling; and that is a
reproach which judicial process must constantly and
scrupulously endeavour to avoid."
19. In Jai Singh v. Shakuntala (2002) 3 SCC 634 this Court
held as under: (SCC pp. 637-38, para 6)
15
"6. ... it is only in very exceptional cases and on
extreme perversity that the authority to examine the
same in extenso stands permissible -- it is a rarity
rather than a regularity and thus in fine it can be safely
concluded that while there is no prohibition as such,
but the power to scrutiny can only be had in very
exceptional circumstances and upon proper
circumspection."
20. While dealing with the issue, this Court in Leela Soni
v. Rajesh Goyal (2001) 7 SCC 494 observed as under:
(SCC p. 502, paras 20-22)
"20. There can be no doubt that the jurisdiction of the
High Court under Section 100 of the Code of Civil
Procedure (CPC) is confined to the framing of
substantial questions of law involved in the second
appeal and to decide the same. Section 101 CPC
provides that no second appeal shall lie except on the
grounds mentioned in Section 100 CPC. Thus it is clear
that no second appeal can be entertained by the High
Court on questions of fact, much less can it interfere in
the findings of fact recorded by the lower appellate
court. This is so, not only when it is possible for the
High Court to take a different view of the matter but
also when the High Court finds that conclusions on
questions of fact recorded by the first appellate court
are erroneous.
21. It will be apt to refer to Section 103 CPC which
enables the High Court to determine the issues of fact:
***
22. The section, noted above, authorizes the High Court to determine any issue which is necessary for the disposal of the second appeal provided the evidence on record is sufficient, in any of the following two situations: (1) when that issue has not been determined both by the trial court as well as the lower appellate court or by the lower appellate court; or (2) when both the trial court as well as the appellate court or the lower appellate court have wrongly determined any issue on a substantial question of law which can properly be the subject-matter of second appeal under Section 100 CPC."
21. In Jadu Gopal Chakravarty v. Pannalal Bhowmick the question arose as to whether the compromise decree had 16 been obtained by fraud. This Court held that though it is a question of fact, but because none of the courts below had pointedly addressed the question of whether the compromise in the case was obtained by perpetrating fraud on the court, the High Court was justified in exercising its powers under Section 103 CPC to go into the question. (See also Achintya Kumar Saha v. Nanee Printers.)
22. In Bhagwan Sharma v. Bani Ghosh AIR 1993 SC 398 this Court held that in case the High Court exercises its jurisdiction under Section 103 CPC, in view of the fact that the findings of fact recorded by the courts below stood vitiated on account of non-consideration of additional evidence of a vital nature, the Court may itself finally decide the case in accordance with Section 103(b) CPC and the Court must hear the parties fully with reference to the entire evidence on record with relevance to the question after giving notice to all the parties. The Court further held as under: (Bhagwan Sharma case, SCC p. 499, para 5) "5. ... The grounds which may be available in support of a plea that the finding of fact by the court below is vitiated in law, does not by itself lead to the further conclusion that a contrary finding has to be finally arrived at on the disputed issue. On a reappraisal of the entire evidence the ultimate conclusion may go in favour of either party and it cannot be prejudged, as has been done in the impugned judgment."
23. In Kulwant Kaur v. Gurdial Singh Mann (2001) 4 SCC 262 this Court observed as under: (SCC pp. 278- 79, para 34) "34. Admittedly, Section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure (Amendment) Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its 17 jurisdiction to deal with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-à-vis the concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication -- what is required is a categorical finding on the part of the High Court as to perversity. ... The requirements stand specified in Section 103 and nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial question of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law. We reiterate however, that there must be a definite finding to that effect in the judgment of the High Court so as to make it evident that Section 100 of the Code stands complied with."
(14) Accordingly, this Court is of the considered opinion that no substantial question of law arises in the present appeal.
(15) Consequently, the judgment and decree dated 24/01/2018 passed by First Additional District Judge, Ashok Nagar in Civil Appeal No.107-A of 2014 and the judgment and decree dated 03/07/2014 passed by Second Civil Judge, Class-II, Ashok Nagar in Civil Suit No.112-A of 2011 are hereby affirmed.
(16) The appeal fails and is hereby dismissed in limine.
(G. S. Ahluwalia) Judge MKB MAHENDRA Digitally signed by MAHENDRA KUMAR BARIK DN: c=IN, o=HIGH COURT OF M.P. BENCH KUMAR GWALIOR, ou=P.S., postalCode=474011, st=Madhya Pradesh, 2.5.4.20=f592da990684fe30f8e1e29a4a1a 9e3451ee450d883083a8e4cc8020eee6f7c BARIK b, cn=MAHENDRA KUMAR BARIK Date: 2019.09.18 10:40:06 +05'30'