CONCURRENT FINDINGS OF FACTS

[Mr. M. GOVINDARAJAN]

What is ‘concurrent findings’?

If the appellate Court affirms the findings of the lower court then it is called as concurrent findings of fact.  If the appellate Court does not affirm the findings of the lower Court then it is called ‘reverse findings’.

Second appeal

Section 100 of the Code of Civil Procedure, 1908 (‘CPC’ for short) provides for a second appeal to the High Court from an appellate decree. There is no vested right of appeal unless the statute so provides. If a statute provides for a condition precedent to be satisfied before a court can exercise its appellate jurisdiction, the court is under obligation to satisfy itself whether the condition prescribed is fulfilled. Exercise of the appellate jurisdiction without the fulfillment of the statutory mandate would be without jurisdiction and therefore a nullity.

Though Section 100 CPC deals with the High Court's jurisdiction in second appeal, it has the effect of declaring that the first appellate court is the final court on facts and the High Court in a second appeal cannot reappreciate evidence or facts unless the case involves a substantial question of law.      

Settled law on concurrent findings 

It is now well settled that concurrent findings of fact of trial court and first appellate court cannot be interfered with by the High Court in exercise of its jurisdiction under Section 100 of Civil Procedure Code. The Single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code in the way he did as held by the Supreme Court in RAMANUJA NAIDU VERSUS V. KANNIAH NAIDU AND ORS.- 1996 (3) TMI 572 - SUPREME COURT.

In NAVANEETHAMMAL VERSUS ARJUNA CHETTY - 1996 (9) TMI 632 - SUPREME COURT the Supreme Court held that  the interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to replace the findings of the lower courts.  Even assuming that another view is possible on a reappreciation of the same evidence that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material.

In STATE OF RAJASTHAN AND ORS. VERSUS SHIV DAYAL AND ORS. - 2019 (8) TMI 1793 - SUPREME COURT, it was held that a concurrent finding of the fact is binding, unless it is pointed out that it was recorded de hors the pleadings or it was based on no evidence or based on misreading of the material on records and documents.  The Supreme Court held that when any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached.

The power of the High Court to interfere in second appeal under section 100 Code of Civil Procedure is limited solely to decide a substantial question of law, if at all the same arises in the case and the same was upheld by High Court of Delhi  in the case RAMESHWAR SINGH VERSUS THE CHIEF SECRETARY, GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI AND ORS. -2022 (10) TMI 626 - DELHI HIGH COURT

In the above said case the plaintiff purchased a plot of land from one Kanwar Singh and Risal Singh, vide registered sale deed. The Plaintiff, has constructed a porch on the said property a decade before filing the suit in 2005 against threats made by defendant. It was sometime in December, 2005, that officials of the GNCTD made threats for demolition of the porch marked in red color in the site plan averring that the porch has been constructed upon pusta. It was this threat which led to the filing of the suit. The trial court dismissed the suit on the ground that the plaintiff failed to prove his case. Thereafter, even the appeal was dismissed by the appellate court.

The petitioner has filed a second appeal under section 100 of CPC requesting a restrain on the defendant and their agents, servants, employees, workers, assigns, nominees from forcibly and illegally demolishing the porch constructed in the property of the plaintiff.    The plaintiff submitted that the Trial Court has wrongly non-suited the plaintiff. He submitted that since the sellers were not produced as witness before the Trial Court, therefore, case of the plaintiff was not proved.

The Court considered the facts and circumstances, it  was of the opinion that no interference with the concurrent findings of the lower courts was warranted in the present second appeal as it cannot be said that the view taken by the first appellate court was based on no material. Therefore the Court dismissed the appeal.

The Court held that it is now well settled that concurrent findings of fact of trial court and first appellate court cannot be interfered with by the High Court in exercise of its jurisdiction Under Section 100 of Code of Civil Procedure. The power of the High Court to interfere in second appeal under section 100 Code of Civil Procedure is limited solely to decide a substantial question of law, if at all the same arises in the case.

When it can be interfered?

In exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse.   The Supreme Court in SHIV SHARAN DASS VERSUS RAJINDERA DEVI AND ORS. - 2017 (9) TMI 1992 - HIMACHAL PRADESH HIGH COURT decided on 05.09.2017, after having carefully perused the evidence as well as law laid down on the point, has arrived at conclusion that there is total mis-appreciation, misconstruction of evidence, be it ocular or documentary, adduced on record by respective parties and findings returned by the Courts below are erroneous and perverse, it sees valid reason to interfere in the concurrent findings of fact recorded by both the Courts below. 

In SUKHBIRI DEVI AND ORS. VERSUS UNION OF INDIA (UOI) AND ORS. - 2022 (10) TMI 627 - SUPREME COURT, the Supreme Court observed that interference with the concurrent findings in an appeal under Section 236 of the Constitution is to be made sparingly, that too when judgment is absolutely perverse.  On appreciation of evidence another view is possible also cannot be a reason for substitution of a plausible view taken and confirmed. 

In the above said case the appellants were plaintiffs in Suit No.410 of 2000 on the file of the Civil Judge, Delhi filed seeking reliefs mainly against the 5th Respondent.  The Trial Court framed a preliminary issue on the question of limitation, evidently, upon forming the opinion that case may be disposed of on an issue of law and that it warrants postponement of settlement of other issues until after that issue has been determined and to deal with the suit in accordance with the decision on that issue.  Accordingly, the Trial Court framed a preliminary question as to whether the Suit is within the limitation.   Upon answering the same in the negative, in accordance with the said decision, the suit was dismissed as per judgment dated 13.05.2005.   The defendants challenged the said judgment and decree before Additional District Judge, Delhi.  The Additional District Judge dismissed the appeal and confirmed the judgment and decree of the Trial Court, as per judgment dated 08.12.2006.  Thereupon, they took up the matter in second appeal before the High Court. As per the impugned judgment dated 25.08.2009 the High Court concurred with the findings and dismissed the appeal answering the question of law against the appellants.  The appellant filed the present before the Supreme Court challenging the orders of the Courts below.

The Supreme Court on considering the facts of the case and the arguments put forth by the parties to the appeal held that there is absolutely no perversity or illegality in the concurrent findings of the courts below warranting interference in invocation of the power under Article 136 of the Constitution of India.  The Supreme Court dismissed the appeal with costs.