Case Note & Summary
The appellant, Kashinath s/o Bala Bakale, filed a second appeal against the judgment and decree of the District Court, Aurangabad, which confirmed the trial court's dismissal of his suit for permanent injunction. The appellant claimed that the respondent, Budha s/o Fakirchand Bakale, was interfering with his possession over agricultural land. The trial court dismissed the suit, and the first appellate court confirmed that decision. In the second appeal, the High Court observed that the lower courts had not properly considered the evidence, including the revenue records and the testimony of witnesses. The court framed substantial questions of law regarding the perversity of the findings. After hearing the parties, the High Court concluded that the findings of the courts below were perverse and not based on the evidence on record. Consequently, the second appeal was allowed, the judgments of the lower courts were set aside, and the suit for injunction was decreed in favor of the appellant.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 Code of Civil Procedure, 1908 - The court considered whether the concurrent findings of fact by the trial court and first appellate court were perverse and based on non-consideration of material evidence - Held that the appellate court failed to appreciate the evidence on record and the findings were contrary to the pleadings and evidence, thus substantial questions of law arose - The second appeal was allowed and the suit was decreed (Paras 1-10).
Issue of Consideration
Whether the concurrent findings of the courts below are perverse and liable to be set aside in second appeal under Section 100 of the Code of Civil Procedure, 1908.
Final Decision
Second appeal allowed. Judgments and decrees of the trial court and first appellate court set aside. Suit for injunction decreed in favor of the appellant.
Law Points
- Second appeal
- substantial question of law
- perversity of findings
- non-consideration of evidence
- Section 100 CPC
- interference with concurrent findings
Case Details
2012 LawText (BOM) (03) 9
Second Appeal No. 479 of 2011 with Civil Application No. 11170 of 2011
Mr. P.F. Patni for appellant/applicant, Mr. A.D. Kasliwal for respondent sole
Kashinath s/o Bala Bakale
Budha s/o Fakirchand Bakale
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Nature of Litigation
Second appeal against concurrent findings in a suit for permanent injunction.
Remedy Sought
Appellant sought to set aside the judgments of the trial court and first appellate court and decree the suit for injunction.
Filing Reason
Appellant claimed that the lower courts' findings were perverse and not based on evidence.
Previous Decisions
Trial court dismissed the suit; first appellate court confirmed the dismissal.
Issues
Whether the concurrent findings of the courts below are perverse and liable to be set aside in second appeal under Section 100 CPC.
Submissions/Arguments
Appellant argued that the lower courts failed to consider material evidence on record.
Respondent supported the concurrent findings.
Ratio Decidendi
The High Court can interfere with concurrent findings of fact in a second appeal if the findings are perverse, i.e., based on no evidence or misreading of evidence, or if the court has failed to consider material evidence. In this case, the appellate court's findings were contrary to the pleadings and evidence, thus substantial questions of law arose.
Judgment Excerpts
Heard learned Counsel appearing for the parties at length.
The second appeal was heard for admission on 15/12/2011, when this Court was pleased to issue notice to the respondent.
Ad interim relief was granted in terms of prayer clause (B) of the civil application.
When this matter was taken up for hearing on 08/02/2012, this Court observed that, looking to the nature of controversy involved in the matter, it is appropriate to dispose of the matter finally at admission stage and accordingly,
Procedural History
The appellant filed a suit for permanent injunction in the trial court, which was dismissed. The appellant appealed to the District Court, which confirmed the dismissal. The appellant then filed a second appeal in the High Court. The High Court heard the matter for admission on 15/12/2011, issued notice, and granted ad interim relief. On 08/02/2012, the court decided to dispose of the matter finally at the admission stage and heard the parties.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100
