Rajiv Sharma, J. - (1.) HEARD Mr. Q.M. Haque, learned Counsel for the appellant.
(2.) LEARNED Counsel for the appellant submits that on 24.5.2008, the Civil Judge (J.D.) dismissed the Regular Suit No. 398 of 1996 for permanent injunction filed by the appellant and thereafter, the Additional District Judge dismissed the Civil Appeal No. 72 of 2008 filed by the plaintiff -appellant. It has been brought to the notice of the Court a finding of fact has been recorded by both the Courts below. Second Appellate Court in exercise of jurisdiction under Section 100 CPC is not vested with the powers to upset or reverse the findings of fact in view of the proposition of law laid down in para 11 & 12 of the decision rendered by the Apex Court in V. Ramchandra Ayyar v. Ramalingam [ : AIR 1963 SC 302]. Relevant paragraphs 11 and 12 of the judgment are reproduced as under: - 11. It is well known that as early as 1890, the Privy Council has occasion to consider this aspect of the matter in Mst. Durga Chowdhrain v. Jawahir Singh Chowdhri, 17 Ind App 122 (PC). In that case, it was urged before the Privy Council, relying upon the decision of the Calcutta and Allahabad High Courts in Futtehma Begum v. Mohamed Ausur,, ILR 9 Cal 309 and Nivath Singh v. Bhikki Singh, ILR 7 All (FB), respectively, that the High Court would be within its jurisdiction in holding that where the lower appellate Court has clearly misapprehended what the evidence before it was, and has been led to discard or not give sufficient weight to other evidence to which it is not entitled, the High Court can interfere under S.100. This contention was rejected by the Privy Council and it was observed that an erroneous finding of fact is a different thing from an error or defect in procedure, and that there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however gross or inexcusable the error may seem to be. Their Lordships added that nothing can be clearer than the declaration in the Code of Civil Procedure that no second appeal will lie except on the grounds specified in S.584 (corresponding to S.100 of the present Code), and they uttered a word of warning that no Court in India or elsewhere has power to add to or enlarge those grounds since 1890. This decision has been treated as a leading decision on the question about the jurisdiction of the High Court in dealing with questions of facts in second appeals. 12. It is necessary to remember that S.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 or defect 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 jurisdiction under S.100 to correct that error.
(3.) AS the concurrent findings of fact have been recorded by the Courts below, no substantial questions arise out of the judgment and orders passed by the Courts below.;