SOURENDRA DEB MODAK Vs. GIRISH CHANDRA MODAK

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 enforcement of Section 37 of the Code of Civil procedure (Amendment) Act, 1976, whereby a new Section 100 for Second appeals has been substituted for the old one, shall be governed by the provisions of Section 100 as it stood before such substitution as provided in section 97 (1) (m) of the Amendment Act of 1976.

(2.) BUT even under Section 100 the Code as it stood before, providing for wider scope of interference than under the new one, both our pre-independence and post-independence apex Courts have deprecated interference with the findings of fact arrived at by the Courts below and more so when the findings of the two Courts below are concurrent. In Deity pattabharaswamy (AIR 1959 SC 57 at 59), for example, the Supreme Court had to regret that in spite of warnings from time to time, the High Courts, professing and purporting to do justice, have disposed of Second Appeals "as if they were first appeals". As pointed out by the Supreme Court in Ramchandra ayyar (AIR 1963 SC 302 at 305), even where the High Court feels that some other view on the facts was reasonable or more reasonable, their passion to do justice, however bonafide, was to be subordinated to the circumscribed limitations imposed by Section 100. As justice is to be administered according to law, no endeavour to transcend the provisions of law is permissible even when the avowed purpose is to rescue justice.

(3.) NOT that finding of facts was a forbidden ground or a prohibited area for the High Courts in Second Appeal. Ms poninted by the Supreme Court in, among others, Mattulal vs. 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 founded on 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. We would govern ourselves accordingly.