Case Note & Summary
The respondent/plaintiff instituted Original Suit No.232/1998 on 23.09.1998 before the I Addl. Senior Civil Judge at Belgaum seeking a decree for recovery of Rs.72,000/- with interest and costs against the appellants/defendants. The plaintiff claimed that the defendants had unauthorisedly used the suit schedule premises from 23.09.1995 to 01.01.1997, causing loss. The defendants filed a written statement contesting the suit. Eight issues were framed for trial. The plaintiff examined himself as PW-1 and marked 8 documents as Exs.P1 to P8. Defendant No.2 examined himself as DW-1 and marked 4 documents as Exs.D1 to D4. The trial court decreed the suit on 17.03.2003 for a sum of Rs.15,297/- as damages for the period of unauthorised use, with interest at 18% p.a. from 01.01.1997 till realisation along with costs. Aggrieved, the defendants filed Regular Appeal No.26/2003 before the II Addl. District Judge at Belgaum, which was dismissed on 29.10.2005, confirming the trial court's judgment and decree. The defendants then filed the present Regular Second Appeal No.149/2006 under Section 100 of the Code of Civil Procedure, 1908. The High Court framed a substantial question of law regarding the perversity of the concurrent findings. After hearing arguments, the court held that the findings of fact recorded by the courts below were based on evidence and not perverse. The court noted that the plaintiff had proved the unauthorised use through oral and documentary evidence, and the defendants failed to rebut the same. The High Court dismissed the second appeal, confirming the award of damages with interest.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 CPC - The High Court held that in a second appeal, interference with concurrent findings of fact is permissible only if the findings are perverse or based on no evidence. The court found no such perversity and dismissed the appeal. (Paras 1-10) B) Property Law - Damages for Use and Occupation - Mesne Profits - The plaintiff claimed damages for unauthorised use of suit schedule premises. The trial court and first appellate court concurrently found that the defendants had used the premises without authority and awarded damages of Rs.15,297/- with interest at 18% p.a. The High Court upheld the award as based on evidence. (Paras 3-8)
Issue of Consideration
Whether the judgment and decree passed by the courts below suffer from any perversity or illegality warranting interference in a second appeal under Section 100 of the Code of Civil Procedure, 1908?
Final Decision
The High Court dismissed the Regular Second Appeal No.149/2006, confirming the judgment and decree dated 29.10.2005 passed in R.A.No.26/2003 by the II Addl. District Judge at Belgaum, which had affirmed the decree dated 17.03.2003 in O.S.No.232/1998. No order as to costs.
Law Points
- Second appeal under Section 100 CPC
- substantial question of law
- concurrent findings of fact
- interference limited to perversity
- damages for use and occupation
- mesne profits
- burden of proof
