There is limited scope of re-appreciation of evidence or interference with finding of fact rendered in second appeal

In Balasubramanian & Anr v. M. Arockiasamy (dead) Through Lrs., the Supreme Court has observed that there is very limited scope for re-appreciating the evidence or interfering with the finding of fact rendered by the trial court and the first appellate court in a second appeal u/s 100 of the Civil Procedure Code.

The Bench of Chief Justice N.V. Ramana, Justice Hrishikesh Roy and Justice A.S Bopanna observed that when there is perversity in findings of the court which are not based on any material or when appreciation of evidence suffers from material irregularity, then the High Court would be entitled to interfere on a question of fact as well.

The background of the case was that the plaintiff filed a suit seeking relief of perpetual injunction to restrain the defendants from interfering with the peaceful possession and enjoyment of the plaint schedule property. The said suit was however dismissed by the Trial Court on ground of failure to prove possession, which was confirmed by the High Court on appeal. 

After considering the arguments, the Top Court noted that the plaintiff himself had filed applications before the trial court claiming that the defendant had trespassed into the suit property and encroached the house after grant of temporary injunction.

The Bench found that it was contended by the plaintiff that the defendant had trespassed and was residing in the thatched house, whereas the defendant in his written statement itself had stated that he was residing in the thatched house situated in the suit schedule property.

The said applications have not been pressed to its logical conclusion nor has any other step been taken to seek restoration of possession by establishing that the possession in fact had been taken by the defendant subsequent to the interim injunction, added the Bench.

Highlighting that the possession of the suit schedule property was not established, the Apex Court said that though the lower appellate court had reversed the judgment of the trial court, this aspect of the matter relating to the grievance of the plaintiff that he had been dispossessed had not been addressed and despite the plaintiff not being in possession the injunction being granted by the lower appellate court would not be justified.

Though there was no issue to that effect before the trial court, the District Judge with such conclusions has ultimately set aside the well-considered judgment and decree passed by the trial court, which will indicate perversity and material irregularity in misdirecting itself in wrongly expecting the defendant to discharge the burden in a suit for bare injunction and arriving at a wrong conclusion, added the Apex Court.

Therefore, the Supreme Court refused to interfere with the judgment of the High Court which was in consonance with the fact situation arising in the instant case.

The SC observed that in the case of Ramathal versus Maruthathal & Ors. (2018) 18 SCC 303 , the issue considered was as to whether the High Court was wrong in interfering with the question of fact in the Second Appeal. It was a case where both the courts below had arrived at a concurrent finding of fact and both the Courts had disbelieved the evidence of witnesses. In such a case where such concurrent factual finding was rendered by two courts and in such situation, it had been interfered by the High Court in a Second Appeal, this Court was of the view that the interference was not justified. However, it is appropriate to notice that in the said decision this Court had also indicated that such restraint against interference is not an absolute rule but when there is perversity in findings of the court which are not based on any material or when appreciation of evidence suffers from material irregularity the High Court would be entitled to interfere on a question of fact as well. In the case of P. Velayudhan & Ors. versus Kurungot Imbichia Moidus son Ayammad & Ors. (1990) Supp. SCC 9 and in the case of Tapas Kumar Samanta versus Sarbani Sen & Anr. (2015) 12 SCC 523 , the decisions are to the effect that in a Second Appeal the High Court would not be justified in interfering with the finding of fact made by the first appellate court since such finding rendered would be based on evidence. On this aspect there can be no doubt that the same is the settled position of law but it would depend on the fact situation and the manner in which the evidence is appreciated in the particular facts.