Supreme Court of India
DAMODAR LALversusSOHAN DEVI AND OTHERS
- Citation
- 2016 INSC 8
- Decided
- 5 January 2016
- Disposal
- Appeal(s) allowed
- Bench
- T S THAKUR
Holding
The High Court cannot interfere with the factual findings of the trial court and first appellate court on a second appeal under Section 100 CPC unless those findings are perverse; therefore, the appeal is allowed and the lower courts' decree restored.
Summary
The landlord, Damodar Lal, sought eviction of his tenants on the ground that they had made unauthorised structural alterations to the rented premises. Both the trial court and the first appellate court found that material alteration had occurred and dismissed the tenants’ appeal. The tenants appealed to the High Court, which set aside those findings, holding that the lower courts erred by not drawing adverse inference from the landlord’s non‑appearance as a witness and that the decree was based on irrelevant considerations. The Supreme Court held that the High Court was wrong to disturb the concurrent factual findings of the lower courts, as such findings can be interfered with only if they are perverse, which was not the case. Consequently, the appeal was allowed, the High Court’s order set aside, and the trial court’s decree restored, with the tenants given time to vacate and to pay occupation charges. The Court reiterated that under CPC Sections 96, 100 and 103, a second appeal cannot overturn factual findings unless they are perverse.
Issues considered
- Whether the courts below erred in granting a decree for eviction on the ground of material alteration while ignoring relevant considerations and proceeding on irrelevant considerations.
- Whether the courts below erred in not drawing an adverse inference for the non‑appearance of the plaintiff in the witness box.
Legislation cited
- Code of Civil Procedure, 1908s. 100, s. 103, s. 96
Subjects
evictionunauthorised constructionmaterial alterationsecond appealCPC Section 100perverse findingfact vs lawlandlord‑tenant
Judgment
[2016] 1 S.C.R. 607
DAMODAR LAL A
v.
SOHAN DEVI AND OTHERS
(Civil Appeal No. 23 l of2015)
JANUARY 05, 2016 B
[T. S. THAKUR, CJI·AND KURIAN JOSEPH, J.]
Code of Civil Procedure, 1908 - s. JOO - Second appeal -
Substantial question of law - Eviction of tenant on the ground of
unauthorised construction by trial court - Said order upheld by
first appellate court - High Court allowed the second appeal 011 a
c
pure question of fact, setting aside concurrent finding of courts
· below - On appeal, held: High Court was wholly wrong, if not,
perverse - It should not have interfered with concurrent findings of
the trial court and first appellate court on a pure question offact -
Their inference on facts is certainly reasonable - Strained effort D
made by the High Cour·t in second appeal to arrive at a different
finding is wholly unwarranted apart from being impermissible under
law - Thus, the judgment of the High Court set aside and that of the
trial court as upheld by first appellate court restored.
Allowing the appeal, the Court E
'
HELD: 1.1 Only the trial court came to the definite finding
on structural alteration in a tenanted premises. That finding was
endorsed by the first appellate court on re-appreciation of the
evidence, and therefore, the High Court in second appeal was
not justified in upsetting the finding which is a pure question of F
fact. Both the questions of law framed by the High Court are not
substantial questions of law. Even if the finding of fact is wrong,
that by itself would not constitute a question of law. The wrong
finding should stem out on a complete misreading of evidence or
it should be based only on conjectures and surmises. Safest
approach on perversity is the classic approach on the reasonable G
man's inference on the facts. To him, if the conclusion on the
facts in evidence made by the court below is possible, there is no
perversity. If not, the finding is perverse. Inadequacy of evidence
or a different reading of evidence is not perversity. [Para 13]
[612-D-F] H
607
608 SUPREME COURT REPORTS [2016) l S.C.R.
A 1.2 The High Court was wholly wrong, if not, perverse. It
should not have interfered with concurrent findings of the trial
court and first appellate court on a pure question of fact. Their
inference on facts is certainly reasonable. The strained effort made
by the High Court in second appeal to arrive at a different finding
is wholly unwarranted apart from being impermissible under law.
B
Therefore, the impugned judgment of the High Court is set aside
and that of the trial court as confirmed by the appellate court is
restored. However, the respondents-tenants are given time upto
31" March, 2017 to use the premises and pay occupation charges
at the rate of Rs.10,000/- per month. [Paras 16-17] [614-E-H;
c 615-A]
Krishnan v. Backiam and another 2007 (9) SCR 901:
(2007) 12 SCC 190; Gurvachan Kaur and others v.
Sa/ikram (Dead) Through Lrs. (2010) 15 SCC 530;
Ku/want Kaur and others 1' Gurdial Singh Mann (Dead)
D by Lrs. 2001 (2) SCR 525 : (2001) 4 SCC 262; S.R.
Tiwqri 1' Union of India 2013 (8) SCR 988 : (2013) 6
SCC 602; Rajinder Kumar Kindra v. Delhi
Administration, Through Secretary (Labour) and others
1985 (1) SCR 866 : (1984) 4 SCC 635 - referred
to.
E
Case Law Reference
2007 (~) SCR 901 Referred to. Para 10
(2010) 15 sec 530 Referred to. Para 11
2001 (2) SCR 525 Referred to. Para 14
2013 fl!) SCR 988 Referred to. Para 15
F 1?85 (1) SCR 866 Referred to. Para 15
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 231
of2015
From the Judgment and Order dated 27.09.2012 at the High Court
ofJudicature for Rajasthan atJodhpur, in S. B. Civil Second Appeal No.
G
109 of2000.
Pallav Shishodia, Rishabh Sancheti, Padma Priya, T. Mahi pal for
the Appellant.
Subrat Birla, S. C. Birla for the Respondents.
H The Judgment of the Court was delivered by
DAMODAR LAL v. SOHAN DEVI 609
KURIAN, J.: 1. The facts unfold the plight of a poor landlord A
languishing in courts for over fourty years. The case gets sadder when
we note that appellant had been successful both in the trial court and the
first appellate court and the saddest part is thatthe High Court in second
appeal, went against him on a pure question of fact!
2. Issue number-3 framed in Civil Regular Suit No. 191 of 1974 B
for eviction on the ground of unauthorised construction/material alteration,
decided on 21.12.1989 in the Court of Munsiff, Bhilwara, Rajasthan,
reads as follows:
"Whether the tenant has carried out permanent construction
on the plot thereby causing a permanent change in the c
identity of the plot against the terms of the rent agreement?"
3. Having analysed and appreciated the evidence of PWs-1 and 2
and also DWs- 1to4, the trial court came to the following finding on the
issue:
"Thus all the witnesses of both sides have stated that when D
the plot was taken on rent, at that time, the plot was empty.
The disputed plot was taken on rent. Later walls were
constructed; sheets were put and were taken into use as
shop and godown. Even today the plot is being used as
shop and godown." E
4. Dissatisfied, the tenants took up the matter in appeal before the
Court of the Additional District Judge-I, Bhilwara, Rajasthan in Civil
Appeal No. 20of1999 (originally presented before the District Judge,
Bhilwara, Rajasthan on 19.01.1990 and since transferred to the Additional
District Judge). In the judgment dated 22.09.2000, the first appellate
F
court, after re-appreciating the whole evidence, came to the conclusion
that:
" ... In my opinion the evidence that had been presented before
the subordinate court, the subordinate court has not made any
mistake in coming to the conclusion that the tenant has made
G
structural changes in the rented accommodation. The appellant
tenant has not been able to present any evidence to show that the
consent of the land lord had been taken before making structural
changes ...."
5. On such findings, the appeal was dismissed. Thus, there are
two findings of fact against the tenants/respondents. H
610 SL:PREME COL1RT REPORTS (2016] I S.C.R.
A 6. The tenants pursued the matter in Second Appeal No. I 09 of
2000 before the High Court of Rajasthan which was allowed by the
impugned judgment dated 27.09.2012. The following were the substantial
questions of law framed in the second appeal:
"(1) Whetheron the facts and in the circumstances of this case,
B the learned courts below have erred in granting a decree
for eviction on the ground of material alteration while ignoring
the relevant considerations and proceeding on irrelevant
considerations.
(2) Whether on the facts of this case, the learned courts below
c have erred in not drawing adverse inference for non-
appearance of the plaintiff Damodar Lal in the witness
box?"
7. The High Court, in the second appeal, came to the conclusion
that the concurrent finding on structural change, in the absence of the
D statement of the plaintiff before the court, cannot be treated to be
trustworthy. The High Court went further and held that adverse inference
should have been drawn for the non-appearance of the plaintiff in the
witn1~ss box, and in such circumstances, the finding on material alteration
is to1tally perverse. We feel it necessary to quote the relevant portion
from the impugned judgment:
E
" ... In the considered opinion of this Court, such finding in the
statement of the plaintiff cannot be treated to be trustworthy or in
consonance with law. The trial court was under obligation to draw
adverse inference for the non-appearance of the plaintiff in the
witness-box. On the contrary, it has relied upon the statement of
F P. W.-1 Rameshwar Lal who was the previous owner of the
property from whom the plaintiff purchased the said property.
Therefore, the finding arrived at by the trial court on the issue
of material alteration is totally perverse and not based upon sound
and trustworthy evidence. The trial court has committed gross
G error while not drawing adverse inference for non-appearance of
the plaintiff Damodar Lal because he was the only witness to
prove the fact of material alteration by way of producing
documentary evidence which is the registered sale-deed executed
by Rameswhwar Lal in favour, so also, his oral statement."
H 8. And thus, the High Court allowed the second appeal and the
DAMODAR LAL v. SOHAN DEVI [KURIAN, J.] 611
suit for eviction was dismissed. Aggrieved, the landlord is before us in A
t~e civil appeal.
9. 'Perversity' has been the subject matter of umpteen numberof
decisions of this Court. It has also been settled by several decisions of
this Court that the first appellate court, under Section 96 of The Civil
Procedure Code, 1908, is the last court of facts unless the findings are B
based on evidence or are perverse.
I 0. In Krishnan v. Backiam and another 1, it has been held at
paragraph-I I that:
"11. It may be mentioned that the first appellate court under Section
96 CPC is the last court of facts. The High Court in second appeal c
under Section 100 CPC cannot interfere with the findings of fact
recorded by the first appellate court under Section 96 CPC. No
doubt the findings of fact of the first appellate court can be
challenged in second appeal on the ground that the said findings
are based on no evidence or are perverse, but even in that case a D
question of law has to be formulated and framed by the High
Court to that effect. ... "
11. In Gurvachan Kaur and others v. Salikram (Dead)
Through Lrs.2 , at paragraph-I 0, this principle has been reiterated:
"1 O. It is settled law that in exercise of power under Section 100 E
of the Code of Civil Procedure, the High Court cannot interfere
with the finding of fact recorded by the first appellate court which
is the final court of fact, unless the same is found to be perverse.
This being the position, it must be held that the High Court was
not justified in reversing the finding of fact recorded by the first
F
appellate court on the issues of existence of landlord-tenant
relationship between the plaintiff and the defendant and default
committed by the latter in payment of rent."
12. In the case before us, there is clear and cogent evidence on
the side of the plaintiff/appellant that there has been structural alteration
G
in the premises rented out to the respondents without his consent. Attempt
by the defendants/respondents to establish otherwise has been found to
be totally non-acceptable to the trial court as well as the first appellate
court. Material alteration of a property is not a fact confined to the
' (2007) 12 sec 190
2
(20IOJ 15 sec 530 H
612 SUPREME COURT REPORTS [2016] 1 S.C.R.
A exclusive/and personal knowledge of the owner. It is a matter of evidence,
be it from the owner himself or any other witness speaking on behalf of
the plaintiff who is conversant with the facts and the situation. PW-I is
the vendor of the plaintiff, who is also his power of attorney. He has
stated in unmistakable terms that there was structural alteration in violation
of the rent agreement. PW-2 has also supported the case of the plaintiff.
B
Even the witnesses on behalf of the defendant, partially admitted that
the defendants had effected some structural changes.
13. Be that as it may, the question whether there is a structural
alteration in a tenanted premises is not a fact limited to the personal
knowledge of the owner. It can be proved by any admissible and reliable
c evidence. That burden has been successfully discharged by the plaintiff
by examining PWs-l and 2. The defendants could not shake that
evidence. In fact, that fact is proved partially from the evidence of the
defendants themselves, as an admitted fact. Hence, only the trial court
came to the definite finding on structural alteration. That finding has
D been endorsed by the first appellate court on re-appreciation of the
evidence, and therefore, the High Court in second appeal was not justified
in upsetting the finding which is a pure question of fact. We have no
hesitation to note that both the questions of law framed by the High
Court are not substantial questions oflaw. Even ifthe finding of fact is
wrong, that by itself will not constitute a question of law. The wrong
E finding should stem out on a complete misreading ofevidence or it should
be based only on conjectures and surmises. Safest approach on perversity
is the classic approach on the reasonable man's inference on the facts.
To him, if the conclusion on the facts in evidence made by the court
below is possible, there is no perversity. lfnot, the finding is perverse.
F Inadequacy of evidence or a different reading of evidence is not
perversity.
14. In Kulwant Kaur aud others v. Gurdial Singh Mann
filead) by Lrs.', this Court has dealt with the limited leeway available
to the High Court in second appeal. To quote paragraph-34:
G "34. Admittedly, Section I 00 has introduced a definite restriction
on to the exercise of jurisdiction in a second appeal so far as the
High Court is concerned. Needless to record that the Code of
Civil Procedure (Amendment) Act, 1976 introduced such an
embargo for such definite objectives and since we are not required
H '(2001)4SCC262
DAMODAR LAL v. SOHAN DEVI [KURIAN, J.] 613
to further probe on that score, we are not detailing out, but the A
fact remains that while it is true that in a second appeal a finding
of fact, even if erroneous, will generally not be disturbed but where
it is found that the findings stand vitiated on wrong test and on the
basis of assumptions and conjectures and resultantly there is an
element of perversity involved therein, the High Court in our view
B
will be within its jurisdiction to deal with the issue. This is, however,
only in the event such a fact is brought to light by the High Court
explicitly and the judgment should.also be categorical as to the
issue of perversity vis-it-vis the concept of justice. Needless to.
say however, that perversity itself is a substantial question worth
adjudication - what is required is a categorical finding on the c
part of the High Court as to perversity. In this context reference
be had to Section 103 of the Code which reads as below:
"l 03. In any second appeal, the High Court may, if the evidence
on the record is sufficient, determine any issue necessary for
the disposal of the appeal,- D
(a) which has not been determined by the lower appellate
court or by both the court of first instance and the lower
appellate court, or
(b) which has been wrongly determined by such court or
courts by reason of a decision on such question oflaw as is E
referred to in Section 100."
The requirements stand specified in Section 103 and nothing short
of it will bring it within the ambit of Section 100 since the issue of
perversity will also come within the ambit of substantial question of law
as noticed above. The legality of finding of fact cannot but be termed to F
be a question of law.
We reiterate however, that there must be a definite finding to that
effect in the judgment of the High Court so as to make it evident that
Section 100 of the Code stands complied with."
G
15. In S. R. Tiwari v. Union of India', after referring to the
decisions ofthis Court, starting with Raiinder Kumar Kindra v. Delhi
Administration, Through Secretary (Labour) and others'. it was
held at paragraph-30:
• (2013) 6 sec 602
'(1984) 4 sec 635 H
614 SUPREME COURT REPORTS (2016] 1 S.C.R.
A "30. The findings of fact recorded by a court can be held to be
perverse if the findings have been arrived at by ignoring or
excluding relevant material or by taking into consideration
irrelevant/inadmissible material. The finding may also be said to
be perverse if it is "against the weight of evidence", or if the
finding so outrageously defies logic as to suffer from the vice of
B
irrationality. If a decision is arrived at on the basis of no evidence
or thoroughly unreliable evidence and no reasonable person would
act upon it, the order would be perverse. But if there is some
evidence on record which is acceptable and which could be relied
upon, the conclusions would not be treated as perverse and the
c findings would not be interfered with. (Vide Rajinder Kumar
Kindra v. Delhi Admn. [(1984) 4 SCC 635 : 1985 SCC (L&S)
131 : AIR 1984 SC 1805] , Ku/deep Singh v. Commr. of
Police [( 1999) 2 sec 1o : I 999 sec (L&S) 429 : AIR 1999 sc
677] , Gamini Bala Koteswara Rao v. State of A.P [(2009) I 0
D
sec 636: (2010) 1 sec (Cri) 372: AIR 2010 sc 589]
and Babu v. State of Kerala[(20 I 0) 9 SCC 189 : (20 I 0) 3 SCC
(Cri) 1179] .)"
This Court has also dealt with other aspects of perversity.
16. We do not propose to discuss other judgments, though there is
E plethora of settled case law on this issue. Suffice to say that the approach
made by the High Court has been wholly wrong, if not, perverse. It
should not have interfered with concurrent findings of the trial court and
first appellate court on a pure question of fact. Their inference on facts
is certainly reasonable. The strained effort made by the High Court in
second appeal to arrive at a different finding is wholly unwarranted apart
F from being impermissible under law. Therefore, we have no hesitation
to allow the appeal and set aside the impugned judgment of the High
Court and restore that of the trial court as confirmed by the appellate
court.
17. At this juncture, learned Counsel appearing for the respondents,
G praying for some reasonable time to vacate, submitted that in the nature
of the timber and furniture business carried on at the premises, they
require some time to find out alternate location/accommodation. Having
regard to the entire facts and circumstances of the case, we are of the
view that the respondents be given time up to 3 l" March, 20 I 7 which is
H agreeable to the appellant as well, though reluctantly. The respondents
DAMODAR LAL v. SOHAN DEVI [KURIAN, J.] 615
are directed to file the usual undertaking in this Court and also continue A
to pay the use and occupation charges at the rate of Rs. I 0,000/- per
month. In the event of any default or violation of the tenns of undertaking,
the decree shall be executable forthwith, in addition to the liability for
contempt of court.
18. The appeal is allowed as above with costs quantified at B
Rs.25,000/-.
Nidhi Jain Appeal allowed.
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