A K MUKHERJI Vs. PRODIP RANJAN SARBADHIKARY

JUDGEMENT

(1.) The two Judges Bench decision of the Supreme Court in Mattulal v. Radhe Lal, AIR 1974 SC 1596 at pp. 1601-1602, which has followed the earlier four Judges Bench decision in Sarbate T.B. v. Nemichand, 1966 MPLJ 26 (SC) and has held the contrary view in the three Judge Bench decision in Kamla Soni v. Rup Lal Mehra, 1970 RCJ 34, not to be good law in view of Sarbate T. B. (supra) and even otherwise, has now been taken to have settled that the finding as to reasonable requirement of the suit-premises by the landlord in a suit for ejectment against the tenant is a finding of fact unassailable in second appeal unless it can be shown that there was an error of law in arriving at such a finding or that the finding was based on no evidence at all or was such as no reasonable person could arrive at it. A later three Judge Bench decision in Damadilal v. Parasram, AIR 1976 SC 2229 at p. 2236 has only adverted to the earlier views without however, expressing any opinion. It must however, be noted that Mattulal (supra) was rendered when second appeals were being governed by the provisions of Section 100 of the Code of Civil Procedure as it stood before its amendment by the Amendment Act of 1976. Under Section 100 as now substituted by the said Amendment Act, the jurisdiction in second appeal has been sought to be considerably circumscribed and a second appeal, now lies only on a "substantial question of law". It is, therefore, doubtful whether a finding of fact even though arrived at on 'no evidence' or in disregard of material evidence can give rise to a substantial question of law to sustain a second appeal. It is equally doubtful as to whether any error of law in arriving at a finding of fact could still warrant a second appeal unless a substantial question of law is involved therein. It is also doubtful as to whether a substantial question of law would barge in simply because the finding of fact arrived at by the Court below is such that no reasonable person would come to it. As early as in 1890, the Judicial Committee pointed out in Durga Chowdhrain v. Jawahar Singh, (1890) 17 Ind App 122 (PC) that 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. As has been pointed out by the Supreme Court in Mandamanchi Ramappa v. Muthaluru Bojjappa (AIR 1963 SC 1633 at p. 1637), even if it appears to the Second Appellate Court that justice had not been done in a particular case in determining issues of fact, the Second Appellate Court must fold its hands as it can do justice only according to the terms of Section 100 of the Code of Civil Procedure and "consideration of fair play and equity, however, important they may be, must yield to clear and express provisions of the law."

(2.) Now that the present Section 100 of the Code of Civil Procedure uses the expression "substantial question of law" and permits a second appeal only on such a question, reference may be made to a five Judge Bench decision of the Supreme Court in Chunilal V. Mehta v. Century Spg. and Mfg. Co. (AIR 1962 SC 1314 at p. 1318), where the provisions of Article 133(1) of the Constitution, as it stood then, were being construed which provided that where the judgement, decree or final order appealed from affirmed the decision of the Court immediately below in any case other than a case covered by sub-clause (c) thereof, an appeal would lie to the Supreme Court if the High Court certified that the appeal involved some "substantial question of law" and the Supreme Court observed thus (at paragraphs 5 and 6) :-

(3.) We express grave doubts as to whether there can be a substantial question of law meriting a second appeal under Section 100 of the Code, as it now stands, simply because the first appellate Court has found evidence where there is none or has failed to find evidence where there is one or has come to a finding of fact which according to the Second Appellate Court is such as could not be arrived at by any reasonable man on the facts found We have also noted hereinbefore that it is also doubtful as to whether a mere error of law in reaching a finding of fact can still sustain a second appeal under the new Section 100, unless a substantial question of law is involved therein. It is high time that we ascertain as precisely as possible the extent to which the scope of second appeal has now been narrowed down by the Amendment of 1976, for otherwise the very purpose of the amendment would stand eroded and second appeals would continue to surge in our Courts as before on the pretext of errors of law masquerading as substantial questions of law. But we do not propose to do so in this case as in our view this second appeal would fail even according to the tests prescribed therefor under Section 100, as it stood, as explained by the Supreme Court in Mattulal (AIR 1974 SC 1596) (supra).