NARAYAN SITARAMJI BADWAIK (DEAD) THROUGH LRSversusBISARAM AND OTHERS

                          [2021] 1 S.C.R. 701                            701


 NARAYAN SITARAMJI BADWAIK (DEAD) THROUGH LRS.                           A
                                  v.
                    BISARAM AND OTHERS
                   (Civil Appeal No. 6124 of 2011)
                        FEBRUARY 17, 2021                                B
              [N.V. RAMANA, SURYA KANT AND
                    ANIRUDDHA BOSE, JJ.]
       Code of Civil Procedure, 1908 – s. 100 and s.103 – Second
Appeal – Appellant had filed suit for possession of the property in
dispute on the basis of a sale deed dated 26.09.1978 – Respondent        C
contended that no such sale took place – The Trial Court, after
looking into the evidence had dismissed the suit of the appellant –
The First Appellate Court (District Judge) reversed the findings of
the Trial Court and decreed the suit in favour of the appellant –
The High Court in the second appeal upheld the findings of the           D
Trial Court and dismissed the suit of the appellant – On appeal,
held: The High Court had noted that the First Appellate Court had
considered irrelevant material and had erred in appreciating the
legal issue involved – After highlighting the legal infirmities of the
judgment of the First Appellate Court, and answering the substantial
question of law framed in favour of the respondents, it appears          E
that the High Court did not note that the First Appellate Court, due
to its erroneous approach, had failed to consider the evidence in
the correct light – In such a circumstance, it would have been
appropriate for the High Court to remand the matter to the First
Appellate Court to determine the factual issues in light of the legal    F
point as decided by it, or should have itself taken a decision on the
facts u/s. 103 of the Civil Procedure Code – Instead, after
negativing the observations and holding of the First Appellate
Court, the High Court mechanically upheld the decision rendered
by the Trial Court – High Court decided the appeal without any
assessment of the evidence on record – Accordingly, the order of         G
the High Court is set aside and the matter is remanded to the High
Court for fresh consideration of the appeal, on facts and law.
      Municipal Committee, Hoshiarpur v. Punjab State
      Electricity Board, (2010) 13 SCC 216 : [2010] 13 SCR
      658 – relied on.                                                   H
                                701
702             SUPREME COURT REPORTS                            [2021] 1 S.C.R.


A           Santosh Hazari v. Purushottam Tiwari (deceased) by
            LRs, (2001) 3 SCC 179 : [2001] 1 SCR 948 – referred
            to.
            CIVIL APPELLATE JURISDICTION : Civil Appeal No.6124
      of 2011.
B           From the Judgment and Order dated 15.10.2009 of the High Court
      of Judicature at Bombay, Nagpur Bench in Second Appeal No.358 of
      1997.
             Mrs. B. Sunita Rao, Adv. for the Appellants.

C            The Judgment of the Court was delivered by
             N. V. RAMANA, J.
            1. When the matter came up last time, on 03.02.2021, this Court
      passed the following order:
             “In spite of service, no one has appeared on behalf of the
D
             respondents.
             Heard learned counsel for the appellants.
            Taking into consideration the non-appearance of the counsel for
            the respondents and to know the exact position of the disputed
E           property as well as whether any compromise has taken place
            between the parties, we grant two weeks to the counsel for the
            appellants to do the needful.
             List the matter immediately after two weeks.”
             2. Even today, when the matter was called out, nobody appeared
F     for the respondents in spite of service of notice.
             3. Heard the learned counsel appearing for the appellants.
              4. In response to our earlier query, it is represented by the learned
      counsel for the appellants that no settlement has taken place between
      the parties, and according to her the parties intend to continue with the
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      litigation.
            5. Taking into account the long pendency of the present appeal
      before this Court, and the fact that, despite service of notice, the
      respondents have not entered appearance from the very beginning as
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NARAYAN SITARAMJI BADWAIK (DEAD) THROUGH LRS. v.                               703
      BISARAM AND OTHERS [N. V. RAMANA, J.]

per the Office Reports, we are of the opinion that we should dispose of        A
the matter with the assistance of the counsel for the appellants.
        6. The facts of the case necessary for the disposal of the present
appeal are as follows: the Narayan Sitaramji Badwaik (since deceased
and now represented through his legal representatives and who shall
hereinafter for the sake of convenience be referred to as the appellant)       B
had filed a suit for possession of the property in dispute, on the basis of
a sale deed dated 26.09.1978, for Rs.10,000 from some of the respondents.
On the other hand, the respondents contend that no such sale took place,
and in fact, the document executed was only collateral for a loan extended
by the appellant to respondents. The appellant sought possession of the
property on 05.09.1987, and subsequently instituted the present suit on        C
07.03.1989. The Trial Court, after looking into the evidence placed on
record, dismissed the suit of the appellant vide judgment dated 21.09.1995.
On appeal, the District Judge reversed the findings of the Trial Court
and decreed the suit in favour of the appellant vide judgment dated
05.08.1997. Aggrieved by the judgment of the First Appellate Court,            D
some of the respondents filed a second appeal before the High Court
wherein the High Court upheld the findings of the Trial Court and allowed
the second appeal vide the impugned judgment, thereby dismissing the
suit of the appellant.
      7. We have carefully perused the impugned judgment by the High           E
Court with the assistance of the counsel for the appellant.
       8. The High Court, vide the impugned judgment, noted that the
First Appellate Court had considered irrelevant material and had erred
in appreciating the legal issue involved. The High Court held as follows:
      “8. I may mention that it is neither party’s case that the transaction   F
      is void or voidable. It is defendants’ simplecase that although they
      had executed a sale-deed, it was nominal and was not to be acted
      upon as sale-deed was executed as a collateral security. One
      does not understand why the learned joint District Judge considered
      the question as to whether the transaction between the plaintiff         G
      and the defendants is void or voidable. The contract becomes
      void when it is opposed to public policy and voidable when it is
      brought about by fraud, undue influence, coercion or fraud. As
      stated earlier, it is neither party’s case that the document
      was brought about by fraud, undue influence, coercion or
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704             SUPREME COURT REPORTS                            [2021] 1 S.C.R.


A            misrepresentation. There was, therefore, no question of
             considering this aspect at all. It seems that the learned
             District Judge instead of considering the provisions of
             Section 91 and 92 of the Evidence Act, considered a totally
             irrelevant aspect…”
B                                                           (emphasis supplied)
             9. However, after highlighting the legal infirmities of the judgment
      of the First Appellate Court, and answering the substantial question of
      law framed in favour of the respondents, it appears that the High Court
      did not note that the First Appellate Court, due to its erroneous approach,
C     had failed to consider the evidence in the correct light. In such a
      circumstance, it would have been appropriate for the High Court to
      remand the matter to the First Appellate Court to determine the factual
      issues in light of the legal point as decided by it, or should have itself
      taken a decision on the facts under Section 103 of the Civil Procedure
      Code.
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             10. It is a settled position of law that a second appeal, under Section
      100 of the Code of Civil Procedure, lies only on a substantial question of
      law [refer Santosh Hazari v. Purushottam Tiwari (deceased) by LRs,
      (2001) 3 SCC 179]. However, this does not mean that the High Court
      cannot, in any circumstance, decide findings of fact or interfere with
E     those arrived at by the Courts below in a second appeal. In fact, Section
      103 of the Code of Civil Procedure explicitly provides for circumstances
      under which the High Court may do so. Section 103 of the Code of Civil
      Procedure is as follows:
             Section 103. Power of High Court to Determine Issue of
F            Fact
             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,-
             (a) which has not been determined by the lower Appellate Court
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             or both by 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 of law as is referred to in
             section 100.
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NARAYAN SITARAMJI BADWAIK (DEAD) THROUGH LRS. v.                               705
      BISARAM AND OTHERS [N. V. RAMANA, J.]

       11. A bare perusal of this section clearly indicates that it provides   A
for the High Court to decide an issue of fact, provided there is sufficient
evidence on record before it, in two circumstances. First, when an issue
necessary for the disposal of the appeal has not been determined by the
lower Appellate Court or by both the Courts below. And second, when
an issue of fact has been wrongly determined by the Court(s) below by
                                                                               B
virtue of the decision on the question of law under Section 100 of the
Code of Civil Procedure. This Court, in the case of Municipal
Committee, Hoshiarpur v. Punjab State Electricity Board, (2010)
13 SCC 216, held as follows:
      “26. Thus, it is evident that Section 103 CPC is not an exception
      to Section 100 CPC nor is it meant to supplant it, rather it is to       C
      serve the same purpose. Even while pressing Section 103 CPC in
      service, the High Court has to record a finding that it had to
      exercise such power, because it found that finding(s) of fact
      recorded by the court(s) below stood vitiated because of perversity.
      More so, such power can be exercised only in exceptional                 D
      circumstances and with circumspection, where the core question
      involved in the case has not been decided by the court(s) below.
      27. There is no prohibition on entertaining a second appeal
      even on a question of fact provided the court is satisfied
      that the findings of fact recorded by the courts below stood             E
      vitiated by non-consideration of relevant evidence or by
      showing an erroneous approach to the matter i.e. that the
      findings of fact are found to be perverse. But the High Court
      cannot interfere with the concurrent findings of fact in a routine
      and casual manner by substituting its subjective satisfaction in
      place of that of the lower courts. (Vide Jagdish Singh v. Natthu         F
      Singh [(1992) 1 SCC 647]; Karnataka Board of Wakf v.
      Anjuman-E-Ismail Madris-Un-Niswan [(1999) 6 SCC 343]
      and Dinesh Kumar v. Yusuf Ali [(2010) 12 SCC 740].)
      28. If a finding of fact is arrived at by ignoring or excluding
      relevant material or by taking into consideration irrelevant             G
      material or if the finding so outrageously defies logic as to
      suffer from the vice of irrationality incurring the blame of
      being perverse, then the finding is rendered infirm in the
      eye of the law. If the findings of the Court are based on no
      evidence or evidence which is thoroughly unreliable or evidence          H
706             SUPREME COURT REPORTS                            [2021] 1 S.C.R.


A            that suffers from the vice of procedural irregularity or the findings
             are such that no reasonable person would have arrived at those
             findings, then the findings may be said to be perverse. Further if
             the findings are either ipse dixit of the Court or based on conjecture
             and surmises, the judgment suffers from the additional infirmity
             of non-application of mind and thus, stands vitiated. (Vide Bharatha
B
             Matha v. R. Vijaya Renganathan [(2010) 11 SCC 483]”
                                                            (emphasis supplied)
             12. With respect to the present case, it is clear from the observations
      passed by the High Court in the impugned judgment that the First Appellate
C     Court approached the matter incorrectly. As such, the High Court ought
      to have either remanded the matter, or exercised its powers under Section
      103, Code of Civil Procedure and decided the issues of fact. Instead,
      after negativing the observations and holding of the First Appellate Court,
      the High Court mechanically upheld the decision rendered by the Trial
      Court in the following terms:
D
             “11. This decision makes it clear that a party has a right to show
             that the document was not intended to be acted upon and what is
             written in it is of no consequence. The Learned judge of the trial
             court has rightly held that the defendants had actually shown that
             the sale-deeds were nominal and they were not to be acted upon
E            and therefore, the plaintiff was not entitled to possession. The
             Learned District Judge fell in error in setting aside the finding of
             the trial court that the sale-deed in favour of the plaintiff was a
             nominal on the ground that the defendant ought to have got the
             sale-deeds set aside. The Learned Civil Judge has rightly
F            considered the evidence and has held the sale-deed to be nominal
             and having been executed by way of collateral security. The finding
             of the Learned District Judge that the suit was not maintainable
             unless sale-deed was got set aside by defendants, therefore, was
             not proper. The substantial question of law is answered accordingly.
             The appeal is, therefore, allowed and judgment and decree passed
G            by the first appellate court is set aside and that of the trial court
             restored.”
             13. A perusal of the above clearly indicates that the High Court
      decided the appeal without any assessment of the evidence on record, in
      a single paragraph. In the circumstances highlighted, we are of the opinion
H     that this was not appropriate.
NARAYAN SITARAMJI BADWAIK (DEAD) THROUGH LRS. v.                                 707
      BISARAM AND OTHERS [N. V. RAMANA, J.]

      14. In view of the above, we are of the considered view that the           A
impugned order of the High Court is liable to be set aside, and the matter
be remanded.
       15. We, accordingly set aside the order of the High Court and
remand the matter to the said Court for fresh consideration of the appeal,
on facts and law, if necessary. We also leave it open to the High Court to       B
modify the question of law framed, or frame additional questions of law
after giving an opportunity to the parties. It is clarified that we have not
made any observations as to the merits of the case, or the correctness
of holding of the High Court on the legal issue.
      16. Taking into consideration the long pendency of the litigation,         C
we request the High Court to dispose of the matter within a period of six
months from the date of communication of this order.

       17. The Appeal is disposed of in the afore-stated terms.

                                                                                 D
Ankit Gyan                                                 Appeal disposed of.




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