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Report No. 54

Clause (c)

1J.39. As regards clause (c), the Privy Council found it as "not perhaps altogether happily expressed."1 Read widely, it may convert the High Court into a Court of first appeal, because all that it requires is a substantial error or defect in procedure which might possibly have affected the decision on merits.

1. Durga Chowdhrani v. Jawahir Singh, 1891 ILR 18 Cal 23 (30) (PC) (Lord Macnaghten).

Case law on interpretation of section 100-What are questions of law

1J.40. We shall first take up the meaning of the phrase 'law' in clauses (a) and (b). The flood of case-law on what are questions of fact open to interference in second appeal, shows that many questions of fact have been held to be questions of law. At one extreme are cases which hold that the question whether a transaction is 'benami' or fictitious or bona fide, or was vitiated by undue influence; or whether there was reasonable and probable cause for a prosecution; or whether there was negligence; or whether there was partition; is a question of fact.

1J.41. These rulings emphasise that a court of second appeal is not competent to entertain questions as to the soundness of a finding of facts by the courts below.1 A second appeal can only lie on one or other of the grounds specified in the present section,2 and emphasis on this fundamental principle has brought out several aspects.

1. Ram Gopal v. Shakshaton, 1892 ILR 40 Cal 93 (99-100) (PC).

2. Luchman v. Puna, 1889 ILR 16 Cal 753 (PC).

1J.42. For example, a Judge to whom a memorandum of second appeal is presented for admission is entitled to consider whether any of the grounds specified in this section exist and apply to the case, and if they do not, to reject the appeal summarily.1 The limitations as to the power of the court imposed by sections 100 and 101 in a second appeal ought to be attended to, and an appellant ought not to be allowed to question the finding of the first appellate court upon a matter of fact.2 Nothing can be clearer than the declaration in the Civil Procedure Code that no second appeal will lie except on the grounds specified in section 100. There is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however gross or inexcusable the error may seem to be.3

1. Rudr Prasad v. Baij Nath, 1993 ILR 15 All 367.

2. Pertap Chunder v. Mohendranath, 1890 ILR 17 Cal 291 (298) (PC) (Sir Richard Couch).

3. Durga Chowdhrani v. Jawahir Singh, 1891 ILR 18 Cal 23 (30) (PC) (Lord Macnaghten).

Cases where "no evidence" raise questions of law

1J.43. But, at the other end, are cases which hold that a second appeal will lie where there is, as an English lawyer would express it, "no evidence to go to the jury", because "that would not raise a question of fact such as arises upon the issue itself, but a question of law for the consideration of the Judge."1

1. Anangamanjari v. Tripura Sundari, 1887 ILR 17 Cal 740 (747) (PC) (Lord Watson).

1J.44. Thus, where the question in a suit was whether the defendant was bound by a mortgage executed by his mother, and it was held that he was, the Privy Council held that the finding was substantially one of law, and that it was, therefore, open to question in second appeal. The Privy Council observed-

"the facts found (by the lower appellate court) need not be questioned. It is the soundness of the conclusions from them that is in question, and this is a matter of law."1

1. Ram Gopal v. Shakshaton, 1893 ILR 20 Cal 93 (98): 19 IA 228 (232) (PC).

1J.45. As stated by the Privy Council in another case,1 "the proper legal effect of a proved fact is essentially a question of law", and the High Court is, therefore, entitled to interfere in second appeal.

1. (a) Nafar Chandra Pal v. Shukur, (1918) 45 IA 183 (187): ILR 46 Cal 189 (195): AIR 1918 PC 92.

(b) Dhannal v. Moti Sagar, (1927) 54 IA 178: AIR 1927 PC 102.

(c) Gujarat Ginning etc. Co. v. Motilal Hirabhai etc. Co., (1938) 63 IA 140: AIR 1936 PC 77.

Mixed questions of fact and law

1J.46. No doubt, discussing the true scope of the above observations, the Supreme Court has pointed out1 that there is a distinction between a pure question of fact, and a mixed question of law and fact, and the observations aforesaid had reference to the latter, and not to the former.2

1. Meenakshi Mill v. C.I.T., 1956 SCR 691: AIR 1957 SC 49 (63, 64), paras. 18, 19, 20 (Case under the Income-tax Act).

2. See also Wali Mohammad v. Md. Baksh, AIR 1930 PC 91 (93) (reviews cases on section 100) (Sir Benode Mitter).

1J.47. But even that leaves ample scope for interference. For example, it has been held by the Supreme Court1 that whether the dedication of a temple is to the public or is private is a mixed question of law and fact, because its decision must "depend on the application of legal concepts of a public and private endowment to the facts found."

1. Deoki Nandan v. Muralidhar, 1956 SCR 756: AIR 1957 SC 133 (136), para. 4.

1J.48. So also, the question whether a property is ancestral or not,1 or the question whether, when a raiyat purchased the interest of the proprietor, there is a merger of the two interests,2 is a mixed one of fact and law. Though a second appeal does not lie from a finding of fact, yet where a legal conclusion is drawn from the finding, a second appeal will lie on the ground that the legal conclusion was erroneous.

1. Gopal Singh v. Ujagar Singh, (1955) 1 SCR 86: AIR 1954 SC 579 (580), para. 7.

2. Jyotish Thakur v. Tarakant Jha, AIR 1963 SC 605 (610), para. 22.

1J.49. Thus, the question whether possession is adverse or not is often one of simple fact, but it may also be a question of law or a mixed question of law and fact. Where the question of adverse possession is one of simple fact, no second appeal will lie; but a second appeal will lie from a finding as to adverse possession when such finding is a mixed question of law and fact, depending upon the proper legal conclusion to be drawn from the findings as to simple facts.1

1. (a) Lacmeshwar v. Manozuar, 1892 ILR 19 Cal 253: 19 IA 48 (PC);

(b) Balram v. Syama Charan, AIR 1922 Cal 54;

(c) Ram Chandra v. Asa Ram, AIR 1957 All 429;

(d) Janakesama v. Appalaswami, AIR 1954 Mad 772 (779), para. 23;

(e) State of Andhra Pradesh v. K. Fakru Bi, AIR 1962 AP 518.

Concurrent findings of fact

1J.50. In general, concurrent findings of fact are not disturbed by the High Court in second appeal. But this rule is subject to the operation of the express grounds of second appeal enumerated in section 100.

The Code of Civil Procedure, 1908 Back

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