P. B. MUKHARJI, J. ( 1 ) THIS is an appeal under Clause 15 of the Letters Patent from the judgment of Mr. Justice Chatterjee dismissing a Second Appeal in a landlord and tenant action but awarding damages to the extent of Rs. 250/- t the plaintiff-appellants before us. ( 2 ) THE facts of the case may be stated briefly. ( 3 ) ON the 7th February, 1955 the appellants instituted a suit being Title Suit No. 84 of 1955 in this First Court of Munsif at Alipore against Sm. Avamoyee Sarkar since deceased, for ejectment from premises No. 5b, Surja Kumar Chatterjee Street. The suit was subsequently transferred to the First Additional Munsif and renumbered as Title Suit No. \207 of 1955. The defendant died on the 25th September, 1955 during the pendency of the suit (Title Suit No. 207 of 1955) leaving the present respondent, Sm. Pranati Sarkar, a minor daughter as her only heir. Thereafter, Sm. Pranati Sarkar was substituted as defendant and represented by her guardian uncle Nirendra Mohan Sarkar. The suit was dismissed on the 24th April, 1957 by the Munsif of the First Additional Court. The plaintiff appellants preferred an appeal being Title Appeal No. 451 of 1957 in the Fourth Court of the Subordinate Judge at Alipore. The learned Subordinate Judge on the 28th January, 1958 allowed the appeal of the plaintiff's and set aside the judgment and decree of the learned Munsif. He allowed the defendant 90 days' time to quit and vacate the premises. He also allowed the plaintiff's damages at the rate of Rs. 40/- per month from the 1st February, 1955 till the date of delivery of possession. ( 4 ) THE issues raised before the learned Subordinate Judge for determination included inter alia "is the defendant guilty of any act of waste, negligence, nuisance or annoyance as alleged"? ( 5 ) THE defendant then made a Second Appeal to this Court which was heard by Mr. Justice Chatterjee. Chatterjee, J. , allowed the appeal with the grant of damages mentioned above, and he gave the certificate for leave to appeal to this Court under Clause 15 of the Letters Patent. ( 6 ) THREE main questions have been canvassed in this Letters Patent Appeal before us. Justice Chatterjee. Chatterjee, J. , allowed the appeal with the grant of damages mentioned above, and he gave the certificate for leave to appeal to this Court under Clause 15 of the Letters Patent. ( 6 ) THREE main questions have been canvassed in this Letters Patent Appeal before us. The first question is that there is no competent appeal at all under Order 41, Rule 1 of the Code of Civil Procedure because the appeal here was filed on the 26th March, 1958 not by Sm. Pranati himself who was then a major but by her said guardian uncle Nirendra Sarkar. It is, therefore, contended that an appeal filed by a major but by a purported guardian is no appeal within the meaning of Order 41, Rule 1, C. P. C. In fact the present memorandum of appeal before this Court is not singed by the appellant or her lawyer required by Order 341, Rule 1, C. P. C. which provides:-"every appeal shall be preferred in the form of a memorandum signed by the appellant or his Pleader" etc. ( 7 ) IT is contended by the appellants before us that this provision has not been observed. ( 8 ) THE second question raised before us is that in any event this appeal is out of time if the appeal is said to have been properly filed by reason of the Registrar's order dated the 9th September, 1958 amending the cause title of the memorandum of appeal by striking out the word 'minor'. ( 9 ) IT is also contended that in any event there can be no condonation of delay under Section 5 of the Limitation Act because in the facts and circumstances of this case there is no "sufficient cause". ( 10 ) THE above two points are technical points of law. ( 11 ) BUT the third objection is an objection on the merits. It is contended in the first instance that the judgment of Chatterjee, J. in awarding damages of Rs. ( 10 ) THE above two points are technical points of law. ( 11 ) BUT the third objection is an objection on the merits. It is contended in the first instance that the judgment of Chatterjee, J. in awarding damages of Rs. 250/- to the appellant was beyond his jurisdiction in a Second Appeal which was being heard by him and particularly in the facts of this case where neither the plaintiffs claimed damages on this ground nor did any witness prove any damages or the amount or the value thereof, nor was there any issue at any stage either before the trial Court or in the first Court appeal. The assessment of the damage which Chatterjee, J. , allocated as Rs. 150/- for damage to the pipes in the house and Rs. 100/- for damage done by the cooking, totaling altogether Rs. 250/- is based on no evidence whatsoever, but is only a guess work. No party claimed it. No witness proved it. No issue was raised on it. We find and hold that this assessment and award of damages were beyond the jurisdiction of Chatterjee, J. , hearing a second appeal on the facts of this case. ( 12 ) WE have also come to the conclusion that the other part of the order and the judgment of Chatterjee, J. , setting aside the finding of fact by the lower appellate Court that there was "material deterioration" which disentitled the defendant to any protection under the West Bengal Premises Rent Control Act cannot be sustained in this appeal. The High Court in Second Appeal has no jurisdiction to set aside a finding of fact. The law is now well settled by the Supreme Court in (1) Deity Pattabhiramaswamy v. S. Hanymayya, reported in AIR 1959 SC 57 . It is definitely laid down by Subba Rao, J. delivering the judgment of the Supreme Court at page 59 as follows:"the finding on the title was arrived at by the learned District Judge not on the basis of any document of title but on a consideration of relevant documentary and oral evidence adduced by the parties. The learned Judge therefore, in our opinion, clearly exceeded his jurisdiction in setting aside the said finding. The provisions of Section 100 AIR clear and unambiguous. As clearly as 1891, the Judicial Committee in Durga Choudhurani v. Jawahir Singh, 17 Ind. App. The learned Judge therefore, in our opinion, clearly exceeded his jurisdiction in setting aside the said finding. The provisions of Section 100 AIR clear and unambiguous. As clearly as 1891, the Judicial Committee in Durga Choudhurani v. Jawahir Singh, 17 Ind. App. 122 (PC) stated thus: "there is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however gross the error may seem to be. " ( 13 ) THE principle laid down in this decision has been followed in innumerable cases by the Privy Council as well as by different High Courts in this Country. Again the Judicial Committee in Midnapore Zemindari Co. Ltd. v. Uma Charan, 29 CWN 131 (AIR 1923 PC 187), further elucidated the principle by pointing out:"if the question to be decided is one of fact it does not involve an issue of law merely because documents which are not instruments of title or otherwise the direct foundation of rights but are merely historical documents, have to be construed. " nor does the fact that the finding of the first appellate Court is based upon some documentary evidence make it any the less a finding of fact (See ILR 11 Lah 199, (AIR 1930 PC 91 ). But, notwithstanding such clear and authoritative pronouncements on the scope of the provisions of Section 100, Civil Procedure Code, some learned Judges of the High Courts are disposing of Second Appeals as if they were first appeals. This introduces, apart from the fact that the High Court assumes and exercises a jurisdiction which it does not possess, a gambling element in the litigation and confusion in the mind of the litigant public. This case affords a typical illustration of such interference by a Judge of the High Court in excess of his jurisdiction under Section 100, Civil Procedure Code. " ( 14 ) THE same principle was reiterated by the Supreme Court in two other cases. One is (2) Raruha Singh v. Achal Singh, reported in AIR 1961 SC 1097 . Gajendragadkar, J. , in that case delivering the judgment of the Supreme Court laid down at page 1099:"incidentally we may point out that the High Court should not have entered into the question of appreciating the evidence as it appears to have done in the last portion of its judgment. Gajendragadkar, J. , in that case delivering the judgment of the Supreme Court laid down at page 1099:"incidentally we may point out that the High Court should not have entered into the question of appreciating the evidence as it appears to have done in the last portion of its judgment. This Court has repeatedly pointed out that in second appeal the High Court's jurisdiction is confined to questions of law. In this particular case the District Court had pointed out that the trial Court had made an obvious mistake in regard to the date of the construction of the Panbharan. After all the questions at issue had to be tried in the light of the oral evidence and surrounding circumstances. In such a case, if the appellate Court recorded definite findings it was not open to the High Court to attempt to reappreciate that evidence. " ( 15 ) THE other decision of the Supreme Court is (3) Sri Sinha Ramanuja Jeer v. Sri Ranga Ramanuja Jeer, reported in AIR 1961 SC 1720 . There again Subba Rao, J. , delivering the judgment of the Supreme Court lays down at pages 1729-30 as follows:"in the second appeal, the learned Judge of the High Court on a review of the evidence, disagreed with the learned District Judge and accepted the finding of the learned Subordinate Judge, and held, for similar reasons, that the plaintiff was virtually an office holder in the main temple; he further held that the plaintiff could also be considered to be the holder of the office of Arulipad and, in that capacity also he was entitled to the first theertham and other honours. The first question is one of fact. The learned District Judge, though he differed from the Subordinate Judge, held, on a consideration of the entire evidence that the plaintiff was not an office-holder in the Athinathawar temple. It has now been well settled that the High Court has no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however gross the error may seem to be. The judgment of the learned Judge does not disclose that there are any permissible grounds for interference with the finding of the District Judge. The second ground of decision of the High Court is based upon a case that was raised for the first time before it. The judgment of the learned Judge does not disclose that there are any permissible grounds for interference with the finding of the District Judge. The second ground of decision of the High Court is based upon a case that was raised for the first time before it. Nowhere in the plaints or before the two subordinate Courts the plaintiff attempted to sustain his claim on his being the holder of the office of Arulipad. The High Court, therefore, was not justified in allowing the plaintiff to set out any such claim for the first time in the second appeal. " ( 16 ) HERE in this case the learned Subordinate Judge as the first Court of appeal came to a definite finding that the defendant had caused damage and material deterioration to the premises in suit. He found as a fact that there were marks of soot in the wall and ceiling that the window frames had been discoloured, that the beams had been charred and blackened and that the leaves of the two windows and the walls which had been discoloured appeared to have been white washed in an attempt to do away with the traces of evidence, but the colour of the wall showed that they had become black and discoloured in spite of such whitewash. The learned Subordinate Judge as a first Court of appeal also after consideration of all the relevant facts on the point including the oral testimony as well as the evidence of the local Commissioner's report came to the finding of fact that by cooking in the staircase the defendant was guilty of acts of waste and negligence and caused material deterioration of the portion of the staircase in which cooking was done. The learned Subordinate Judge again as the first Court of appeal on facts found as a fact that the rain water pipes had been damaged by the use made of them for and on behalf of the defendant. ( 17 ) THAT being so, they become conclusive findings of fact which, according to the decisions and principles laid down by the Supreme Court, this High Court in second appeal can not upset. Indeed Chatterjee, J. himself realised that there was a damage. In fact he went beyond his jurisdiction to award damage. He valued that damage at Rs. 250/ -. A damage of Rs. Indeed Chatterjee, J. himself realised that there was a damage. In fact he went beyond his jurisdiction to award damage. He valued that damage at Rs. 250/ -. A damage of Rs. 250/- in a monthly tenancy barely fetching Rs. 40/- as monthly rent such as in the present case is prima facie a material deterioration. ( 18 ) THE reason given in the judgment under appeal is that although the fact of damage was a question of fact the point whether there was "material deterioration" within the meaning of Section 12 (1) (f) of the West Bengal Premises Rent Control Act, 1950, was a question of law. It has been contended by the learned Advocate for the respondent that the words there used, namely, "materially deteriorated" raise questions of law. We are unable to accept that contention. Material deterioration is a question of fact. Whether a particular deterioration is material or not is not a question of law. This is not a case of an inference from a set of facts which would in some cases make it a question of law, such as the legal interpretation of the word "permanency" either of tenures or of structures in special facts of such cases as in (4) Bejoy Gopal Mukherji v. Pratul Chandra Ghose, reported in AIR 1953 SC 153 where an inference from certain set of facts was held by the Supreme Court was a question of law and it was observed there at page 155 of that report: "mere possession for generations at a uniform rent nor construction of permanent structure by itself may not be conclusive proof of a permanent right as held in AIR 1929 Cal 37 but the cumulative effect of such fact coupled with several other facts may lead to the inference of a permanent tenancy as indicated even in the case of AIR 1936 Cal 100" etc. and again the special facts of such cases of permanency of structure as in (5) Atul Chandra Lahiri v. Sonatan Daw, reported in 65 CWN 626 where assuming the facts as found the question was whether inference could be drawn that the structures were permanent within the meaning of clause (b) of Section 108 of the Transfer of Property Act. and again the special facts of such cases of permanency of structure as in (5) Atul Chandra Lahiri v. Sonatan Daw, reported in 65 CWN 626 where assuming the facts as found the question was whether inference could be drawn that the structures were permanent within the meaning of clause (b) of Section 108 of the Transfer of Property Act. ( 19 ) INDEED as early as in (6) Dhanna Mal v. Rai Bahadur Lala Moti Sagar, reported in AIR 1927 PC 1-2, the Privy Council made it quite clear that the proper effect of a proved fact is a question of law and the question whether a tenancy is permanent or precarious is one of a legal inference from facts and not itself a question of fact. But that is not the case here. No question of inference arises in this case. Here the first Court of appeal on facts definitely and expressly came to a finding of fact that there was a "material deterioration. " It is not a question of drawing an inference from facts. The learned Judge of the first Court of appeal came to a finding of fact that the deterioration was material. It is difficult to imagine how a fact found by stating that the deterioration was material would be revised by saying that legally the deterioration was immaterial or that the deterioration was not material within the meaning of Section 12 (1) (f) of the West Bengal Premises Rent Control Act. A material deterioration remains in fact material deterioration and can not by law become legally immaterial. The Rent Control Act does not define what is or is not "material deterioration" nor has the expression "material deterioration" any special legal connotation peculiar to that Act. The learned Judge naturally found himself in difficulty here because he had in the first place to accept that there was a deterioration of the value of Rs. 250/ -. This deterioration was found to be "material" by the learned Subordinate Judge, who was the first Court of appeal on facts, after a full consideration of the evidence before him and having regard to the nature and rent of the tenancy involved in this case. To say in the second appeal that finding is not right is really to go behind a finding of fact and we have no doubt it is so in the present instance. To say in the second appeal that finding is not right is really to go behind a finding of fact and we have no doubt it is so in the present instance. ( 20 ) ON this ground alone this appeal should succeed and we would rest our decision on this question of merit to allow the appeal. ( 21 ) IT is unnecessary, therefore, in the view that we have taken to discuss in detail the other two, questions, namely: (1) whether there was any competent second appeal at all before this Court within the meaning of the provisions of the Code of Civil Procedure and duly signed by the appellant or her lawyer and (2) secondly, whether any sufficient cause has been shown on the facts of this case to condone the delay, if any. As long arguments have been addressed to us from the Bar on these two points we shall only briefly notice and record, out of deference to such arguments, the main points raised. ( 22 ) THERE is no doubt that the memorandum of appeal in this case does not satisfy Order 41, Rule 1, Civil Procedure Code. It is not signed by the defendant appellant or her lawyer as required by Order 41, Rule 1. There was an order of amendment by the Registrar but the memorandum of appeal even thereafter was not actually signed by the appellant defendant or her lawyer. The vakalatnama has been signed by the defendant appellant but not the memorandum of appeal. There is, therefore, clear breach of Order 41 Rule 1, C. P. C. It has been contended by the learned Advocate for the respondent before us, i. e. , the defendant in the suit that although the word "shall" is used in Order 41, Rule 1, it should be taken as directory and not mandatory. The case on which he relies is (7) Datta v. Bhaoosingh, reported in AIR 1926 Nagpur, 40. This is a decision of a Single Judge, Kinkheda, A. J. C. who observes that where an appeal is preferred by a major through a guardian ad litem under a bona fide mistake that the major is still a minor, the appeal should not be dismissed but should be amended by striking out the name of the guardian ad litem. This is a decision of a Single Judge, Kinkheda, A. J. C. who observes that where an appeal is preferred by a major through a guardian ad litem under a bona fide mistake that the major is still a minor, the appeal should not be dismissed but should be amended by striking out the name of the guardian ad litem. Similar situations which have arisen not in the case of an appeal but in the case of a plaint by a major mistaken to be a minor are covered by such decision as (8) Taqui Jan v. Obaidulla, ILR 21 Cal 866, where a Division Bench of this Court holds that when a suit was instituted by a person alleging himself to be a minor, and the suit was brought through a next friend, and when it was found that the plaintiff was not at the date of the institution of the suit in fact a minor, the Court should not dismiss the suit, as the defendant could be fully indemnified by the payment of his costs, and that in such a case the proper remedy was for the defendant to apply to have the plaint taken off the file or amended, and if it be not amended the next friend's name might be treated as mere surplusage and the suit be allowed to proceed. Similar cases on the point are (9) Wali Mahammad Khan v. Ishak Ali Khan, reported in AIR 1931 Allahabad 507 (S. B.) (10) Amritsaria v. Gamun, reported in AIR 1926 Lahore, 82 decided by a Single Judge and (11) Shanmuga Chetty v. C. K. Narayana Ayyar, ILR 40 Madras 743. It is not necessary to multiply cases on the point. ( 23 ) BUT the more important question here is that those authorities show that where there is a bona fide mistake the plaint or the appeal should not be dismissed. But if the facts show that it cannot be a case of a bona fide mistake then the situation becomes more difficult for the defendant in this appeal even on the basis of these authorities. On the facts it is difficult to hold that it was bona fide in this case. In fact on the 18th November, 1957 Sm. But if the facts show that it cannot be a case of a bona fide mistake then the situation becomes more difficult for the defendant in this appeal even on the basis of these authorities. On the facts it is difficult to hold that it was bona fide in this case. In fact on the 18th November, 1957 Sm. Pranati made an application in Title Appeal No. 451 of 1957 before the 4th Subordinate Judge, Alipore, stating that she had already attained majority in the preceding month of October and that she wanted to prosecute the appeal on her own. An order was made by the learned Subordinate Judge upon that application discharging the guardian. That being so, it is inconceivable how on the 26th March, 1958 when the second appeal was filed in this Court it was filed through Nirendra Mohan Sarkar as "natural guardian and uncle on behalf of Pranati as minor". It is not possible to hold that in such circumstance this was a bona fide mistake either of Pranati or the guardian. It cannot be the bona fide mistake of Pranati because she herself had applied before the learned Subordinate Judge on the 18th November, 1957 asserting her majority and discharging her guardian. It cannot be a bona fide mistake of the guardian Nirendra Mohan Sarkar because he was discharged on notice to him on the application of Pranati by the learned Subordinate Judge. Such an appeal was admitted ex parte by this Court on the 28th March, 1958 under Order 41, Rule 11, C. P. C. Even at that stage neither Pranati nor the lawyer appearing for her brought this to the notice of the Court. ( 24 ) HERE a few dates will conclusively prove that neither Pranati nor her guardian can be excused on the ground of bona fide mistake. On the 30th April, 1958, the appellant before us, the plaintiffs, applied for amendment of the decree before the 4th Subordinate Judge and a copy of that application was served on Pranati's lawyer and the decree was amended on the 10th May, 1958. It was thereafter on the 22nd May, 1958, that notices regarding the Civil Rule obtained by Pranati No. 912 (s) of 1958 for stay of execution granted by this Court were served upon the plaintiffs. It was thereafter on the 22nd May, 1958, that notices regarding the Civil Rule obtained by Pranati No. 912 (s) of 1958 for stay of execution granted by this Court were served upon the plaintiffs. On the 5th August, 1958, the first plaintiff filed his counter-affidavit and it was served on the learned Advocate for the defendant the very following day, namely, the 6th of August, 1958. The Civil Rule 912 (s) of 1948 was heard on the 20th August, 1958 and the Rule was discharged with costs by Banerjee, J. Now by that time two things had happened. One is that in the counter-affidavit of the first plaintiff affirmed on the 5th August, 1958 it was clearly stated that the appeal was incompetent and that Pranati was no longer a minor when the appeal was filed by her guardian. The other is that by the 24th May, 1958 the second appeal had become barred by limitation on the calculation that 90th day was the 5th May 1958 to which if 19 days are added for the copy, it brings the date upto 24th May, 1958. So on the 24th May 1958, the second appeal had become barred by limitation. It was not until the 8th September, 1958 that Pranati verified the application for correction of this memorandum of appeal. It was this application which was heard ex parte bythe Registrar and allowed on the 9th September, 1958. But by that time the second appeal had become barred. There was a second attempt by Pranati for stay of execution from this Court which was granted by Renupada Mukherji, J. on the 12th September, 1958 and by the order dated the 17th September, 1958 this point about the competency of the appeal was specially reserved to be argued in the second appeal when it came up for hearing. ( 25 ) CHATTERJEE, J. in dealing with this point in the second appeal realised the difficulty and observed: "the question that has arisen with respect to this matter is whether there was any delay in filing the appeal and if so whether that should be condoned or not. ( 25 ) CHATTERJEE, J. in dealing with this point in the second appeal realised the difficulty and observed: "the question that has arisen with respect to this matter is whether there was any delay in filing the appeal and if so whether that should be condoned or not. " ( 26 ) IN disposing of this point the learned Judge observed:"it was the duty of the appellant to correct the memorandum and to put the appeal in order but the party was represented by an Advocate from the very beginning, namely, from 26th March, 1958 and whatever steps the party has taken must be considered to be under the advice of the lawyer and there is no question about the bona fide of the Advocate. " ( 27 ) NOW it is not a question of the bona fide of the Advocate. An Advocate acts on the instruction of his client. The client who purported to instruct the Advocate was an adult person purporting to be a guardian and responsible individual who claims to be a Chartered Accountant. How could he, when he himself had been discharged by the learned Subordinate Judge, knowingly instruct the learned Advocate that he was still representing a minor when the minor had become a major. The learned Judge deciding the second appeal failed to notice this very significant feature that Pranati herself had applied to discharge her guardian and to conduct her own first appeal before the learned Subordinate Judge. Apparently this escaped the notice of the learned Judge and therefore, no question of mistake of a lawyer arises in this case at all. We are, therefore, unable to find any sufficient cause whatever in this case and we are unable to accept the decision of Chatterjee, J. that there was sufficient cause for condoning the delay. ( 28 ) FOR these reasons we allow the appeal with costs, set aside the judgment and decree of Chatterjee, J. , and restore the decree passed by the learned Subordinate Judge. We, however, grant the defendant respondent time to vacate the premises on or before the 15th November, 1962, after which date the plaintiff appellants will be entitled to execute the decree for possession. ( 29 ) THE learned Advocate for the defendant states to the Court that a sum of Rs. We, however, grant the defendant respondent time to vacate the premises on or before the 15th November, 1962, after which date the plaintiff appellants will be entitled to execute the decree for possession. ( 29 ) THE learned Advocate for the defendant states to the Court that a sum of Rs. 250/- was deposited by his client in the lower Court as directed by Chatterjee, J. but that sum has not been taken out by the plaintiff appellants. This sum of Rs. 250/-, therefore, may be withdrawn and taken back by the depositing party, the defendant respondent. Appeal allowed.