Case Note & Summary
The present second appeal was filed by the original defendants challenging the concurrent judgment and decree passed by the courts below in a suit for possession and mesne profits. The suit was filed by the respondent-plaintiff Vithoba Sahdeo Bandhe against the appellants-defendants, who were eight individuals including Balkrishna Pandurang Chunarkar and others. The trial court decreed the suit, and the first appellate court confirmed the decree. The defendants then preferred this second appeal under Section 100 of the Code of Civil Procedure, 1908. The appeal was admitted by this Court (S.B. Mhase, J as he then was) vide order dated 18.9.1996, but no substantial questions of law were formulated at the time of admission. The High Court noted that while Section 100(4) CPC requires the court to frame substantial questions of law, the failure to do so does not affect the process of appeal as held by this Court. However, the court must still determine whether any substantial question of law arises. The appellants were absent at the hearing, and the respondent was represented by counsel. The court examined the concurrent findings of fact recorded by the courts below and found that the appellants had not demonstrated any perversity or jurisdictional error. The court held that in a second appeal, the High Court cannot interfere with concurrent findings of fact unless they are shown to be perverse or based on no evidence. Since no substantial question of law was involved, the appeal was dismissed with no order as to costs.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100(4) Code of Civil Procedure, 1908 - Failure to frame substantial question of law at admission does not vitiate the appeal but the court must still determine if any such question arises - Held that the appeal can be dismissed if no substantial question of law is involved (Paras 2-3). B) Civil Procedure - Concurrent Findings of Fact - Interference in Second Appeal - Section 100 Code of Civil Procedure, 1908 - Second appeal lies only on substantial questions of law; concurrent findings of fact cannot be re-opened unless shown to be perverse or based on no evidence - Held that the appellants failed to demonstrate any such error (Paras 3-4).
Issue of Consideration
Whether the second appeal can be entertained without formulation of substantial questions of law as required under Section 100(4) of the Code of Civil Procedure, 1908, and whether the concurrent findings of fact recorded by the courts below suffer from any perversity or jurisdictional error warranting interference.
Final Decision
The second appeal is dismissed with no order as to costs.
Law Points
- Second appeal
- substantial question of law
- Section 100 CPC
- concurrent findings of fact
- interference limited to perversity or jurisdictional error
