Code of Civil Procedure, 1908: s.100 – Substantial questions of law – Suit by respondent no.1 against the appellant-State and its authorities seeking grant of permanent injunction against the State and its authorities from interfering in carrying out the mining operations on the suit land by respondent no.1 – Claim was inter alia based on ground that the suit land was not part of any protected forest area as claimed by the State authorities but was part of the Revenue area and, therefore, respondent no.1 had a right to carry out mining operation on the suit land without any interference of the State and its authorities – Trial court decreed the suit and granted an injunction against the State and its authorities in relation to the suit land – First appellate court affirmed the order of trial court – High Court dismissed the appeals holding that since the two courts decreed the suit, no substantial question of law arose in the appeals – Aggrieved, State filed instant appeals – Held: High Court was swayed away with the consideration that since two courts have decreed the suit, resulting in passing of the decree against the State, there was no substantial question of law in the appeals – When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and the decision is one which no Judge acting judicially could reasonably have reached – If any one or more ground, is made out in an appropriate case on the basis of the pleading and evidence, such ground constitute substantial question of law within the meaning of s.100 of the Code – In the instant case, the questions arose as to whether the suit land was a Forest land or a Revenue land; whether a mining lease of the suit land could be granted by the State for carrying out the mining operation in accordance with the MMRD Act and, if so, whether it satisfied all the statutory provisions of the MMRD Act etc. – The suit could not have been tried properly without deciding these questions in the light of the pleadings, evidence and the applicable laws – High Court, therefore, ought to have admitted the second appeal by framing appropriate substantial questions of law and answered them on their respective merits – Matter remitted to High Court for consideration afresh.
Allowing the appeals and remitting the matter to High Court, the Court
HELD : 1. It is true that “concurrent finding of fact” is usually binding on the High Court while hearing the second appeal under Section 100 of the Code of Civil Procedure, 1908. However, this rule of law is subject to certain well known exceptions. In order to record any finding on the facts, the Trial Court is required to appreciate the entire evidence (oral and documentary) in the light of the pleadings of the parties. Similarly, the Appellate Court also has the jurisdiction to appreciate the evidence de novo while hearing the first appeal and either affirm the finding of the Trial Court or reverse it. If the Appellate Court affirms the finding, it is called “concurrent finding of fact” whereas if the finding is reversed, it is called “reversing finding”. These expressions are well known in the legal parlance. [Paras 17-20] [248-B-D]
Rajeshwar Vishwanath Mamidwar & Ors. v. Dashrath Narayan Chilwelkar & Ors.AIR 1943 Nagpur 117
– approved.
2. In the facts of the case, the following questions arose for consideration in the suit/appeal for proper adjudication of the rights of the parties to the suit and are in the nature of substantial questions within the meaning of Section 100 of the Code. First, whether the suit land was a part of a protected Forest area, i.e., Forest land and, if so, whether the parties satisfied all the statutory provisions of the Forest Laws enacted by the Center and the State? Second, whether the suit land was a part of a Revenue land and, if so, whether the parties to the suit satisfied all the statutory provisions of the State Revenue Laws. Third, whether a mining lease of the suit land could be granted by the State to the plaintiff for carrying out the mining operation in accordance with the provisions of the MMRD Act and, if so, whether it satisfied all the statutory provisions of the MMRD Act read with relevant Forest and Revenue Laws. Fourth, whether a suit is hit by any provision of Forest Laws or MMRD Act or/and Revenue Laws expressly or by implication. Lastly, whether the plaintiff on facts/evidence has proved that the suit land is a part of Revenue land and, therefore, it does not fall in the protected forest area and, if so, whether any prima facie case, balance of convenience and irreparable loss is made out for grant of permanent injunction in plaintiff’s favour? All the five questions enumerated above did arise in the case. As a matter of fact, the suit could not have been tried properly without deciding these questions in the light of the pleadings, evidence and the applicable laws. The High Court, therefore, should have admitted the second appeal by framing appropriate substantial question(s) of law arising in the case and answered them on their respective merits rather than to dismiss the appeals without considering any of the those questions. [Paras 23-30] [248-G-H; 249-A-F]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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