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Bhagwan Sharma v. Bani Ghosh (Smt) .
Factual and Procedural Background
The plaintiff–appellant filed a suit seeking a declaration that, by virtue of long possession and the provisions of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981, he had acquired the status of a “thika tenant” and therefore could not be dispossessed from the suit property. He also sought a permanent injunction restraining the defendant–respondent from interfering with his possession.
The trial court dismissed the suit. On first appeal, the appellate court re-appraised the evidence, recorded findings of fact in favour of the plaintiff, and decreed the suit. The defendant then filed a second appeal before the High Court under Section 100 of the Code of Civil Procedure (CPC). The High Court held that the first appellate court had overlooked “certain vital facts,” set aside its findings, and dismissed the suit. The present appeal is from that High Court judgment.
Legal Issues Presented
- Whether the High Court, in a second appeal under Section 100 CPC, was justified in setting aside the first appellate court’s findings of fact without either (a) remanding the matter for fresh consideration or (b) itself finally deciding the factual issues in compliance with Section 103(b) CPC.
- What procedural course is mandated when a High Court finds the lower appellate court’s factual findings to be vitiated for non-consideration of vital evidence.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Supreme Court acknowledged that the High Court had authority to examine whether the first appellate court’s factual findings were legally flawed due to non-consideration of material evidence. However, once the High Court concluded that those findings were vitiated, it had only two lawful options:
- Remand: Send the matter back to the first appellate court for a fresh decision after considering all relevant evidence.
- Final determination under Section 103(b) CPC: Decide the factual issues itself, but only if the existing record was sufficient and after providing the parties a full opportunity to address the evidence.
The High Court adopted neither course. Instead, it identified four perceived errors, relied on the principle that a plaintiff must succeed on the strength of his own case, and summarily dismissed the suit without re-appraising the entire evidence or providing procedural safeguards required by Section 103(b) CPC. The Supreme Court held that this approach pre-judged the dispute and contravened statutory procedure. Consequently, both the High Court judgment and the earlier first appellate decision were set aside, and the case was remitted for fresh adjudication by the first appellate court.
Holding and Implications
APPEAL ALLOWED; IMPUGNED HIGH COURT JUDGMENT AND FIRST APPELLATE COURT JUDGMENT SET ASIDE; MATTER REMITTED TO THE FIRST APPELLATE COURT FOR FRESH DECISION.
Direct Consequences: The suit is restored to the first appellate court, which must rehear the appeal and decide it in accordance with law after considering the entire evidentiary record. Costs are to abide the final outcome.
Broader Implications: The decision reinforces the procedural limits on a High Court’s power in second appeals, emphasizing strict adherence to Section 103 CPC when interfering with findings of fact.
Order
1. Heard the learned counsel for the parties. Special leave is granted.
2. The appeal arises out of a suit filed by the appellant for a declaration on the strength of his possession over the suit property for a long period and certain other facts as mentioned in the plaint. According to him he acquired a statutory right described as ‘thika tenancy’ under the provision of Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981. Hence he is liable not to be disturbed therefrom. He also prayed for permanent injunction restraining the respondent from interfering with his possession.
3. The defendant denied the averments as pleaded by the plaintiff and contended that the suit was fit to be dismissed. The trial court accepted the defendant's case and dismissed the suit. On appeal by the plaintiff-appellant the first appellate court reconsidered the evidence led by the parties and recorded findings of fact in favour of the plaintiff-appellant, and on that basis decreed the suit. The respondent moved the High Court by way of second appeal under Section 100 of the Code of Civil Procedure. It was urged that the findings of fact in favour of the plaintiff in the judgment under challenge before the High Court were illegal. The High Court agreed with the defendant, allowed the second appeal and dismissed the plaintiff's suit by the judgment which is impugned in the present appeal.
4. The High Court correctly appreciated that the effect of the litigation was dependent on the findings of fact and that they have been recorded by the first appellate court in favour of the plaintiff. Proceeding further, however, it was observed that the first appellate court had “overlooked certain vital facts which have their bearing on the legal effect of the findings of fact made by the lower appellate court”. The judgment then points out four such errors which according to the High Court vitiated the findings of fact. The court, however, did not proceed to consider the other evidence on the records of the case and abruptly closed the matter by saying that the plaintiff can succeed only on the strength of his case and not on the weakness of defence and the court below ought to have, therefore, dismissed his suit. The second appeal was in these terms allowed and the suit was finally dismissed.
5. The High Court was certainly entitled to go into the question as to whether the findings of fact recorded by the first appellate court which was the final court of fact were vitiated in the eyes of law on account of non-consideration of admissible evidence of vital nature. But after setting aside the findings of fact on that ground the court had either to remand the matter to the first appellate court for a rehearing of the first appeal and decision in accordance with law after taking into consideration the entire relevant evidence on the records, or in the alternative to decide the case finally in accordance with the provisions of Section 103(b) of the Code of Civil Procedure which reads as follows:
“103. Power of High Court to determine issue of fact.— In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,—
(b) which has been wrongly determined by such Court or Courts by reason of a decision on such question of law as is referred to in Section 100.”
If in an appropriate case the High Court decides to follow the second course, it must hear the parties fully with reference to the entire evidence on the records relevant to the issue in question and this is possible if only a proper paper-book is prepared for hearing of facts and notice is given to the parties. 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 re-appraisal of the entire evidence the ultimate conclusion may go in favour of either party and it cannot be pre-judged, as has been done in the impugned judgment. We, therefore, allow this appeal, set aside the impugned judgment as also the judgment of the first appellate court and remit the entire matter to the first appellate court for fresh decision of the appeal filed before it, in accordance with law. The cost will abide the final result in the case.
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