JAYABATI CHATTERJEE Vs. BIMALA DAS

JUDGEMENT

(1.) -These two Second Appeals having been presented and also heard under the provisions of Order 41 Rule 11 of the Code of Civil Procedure before the commencement of the Code of Civil Procedure (Amendment) Act of 1976, whereby a new section 100 has been substituted for the old one, shall be governed by the provision of section 100, as it stood before, in view of the saving provisions contained in section 97 (1) (m) of the Amendment Act of 1976.

(2.) But even under section 100 of the Code, as it stood before, our apex Courts have consistently deprecated interference with the finding of fact and the Supreme Court even had to regret in Deity Pattabhiramaswamy (AIR 1959 SC 57 at 59) that High Courts, in their anxiety to do justice, were disposing of Second Appeals as if they were first appeals.

(3.) Not that finding of fact was beyond the reach of and a 'no-entry' area for the High Courts. As reiterated by the Supreme Court in Mattulal v. Radhelal (AIR 1974 SC 1596 at 1601-1602), a finding of fact could legally be assailed even in Second Appeal if the same - (a) was arrived at an erroneous application of law, or (b) was based on no evidence at all, or (c) was such as could not be arrived at by any reasonable person. Let us govern ourselves accordingly.