DEBENDRA BHOI v. MEGHU BHOI — 1986 DIGILAW 29 (ORI)

D. P. MOHAPATRA, J. ( 1 ) THE second appeal involves an interesting question of law as to whether the general exceptions provided under the Penal Code would be applicable in a suit for damages on torts, indeed, at the time of admission of the appeal this question was formulated by the Court for examination. ( 2 ) THE facts leading to this appeal may be shortly stated thus; Appellant, Debendra Bhoi, filed the suit (M. S. No. 30 of 1973) before the Munsif, Bargarh claiming Rs. 500/- towards damages from the respondents Meghu Bhoi and Dhanei Bhoi on the allegations that on 26-7-73, the latter assaulted him causing injuries, as a result of which he was treated in the Government Central Hospital, Bargarh, for 11 days and suffered physical and mental pain and financial loss. Respondent 2, Dhanei Bhoi, is the son of respondent 1, Meghu Bhoi, it was the further case of the appellant that land described in the Schedule 'a' to the plaint situated in Mouza Sarsara belonged to him. The respondents had land adjoining the appellant's land to its north and south. According to the appellant the respondents while preparing their land for transplantation of paddy, had scrapped the Northern and Southern ridges of the Schedule 'a' land in spite of protest of the appellant. On 26-7-73 when the appellant was talking with some of the local gentries to resolve the dispute and while the latter were enquiring the facts from both the parties, the respondents got enraged and all on a sudden assaulted the appellant by a stick, resulting in bleeding injuries on his person for which the appellant had to undergo treatment. On these allegations, he claimed Rs. 200/- towards general damages for mental pain and humiliation and Rs. 300/- as special damages for purchase of medicine, loss of work for 11 days, conveyance charges to and fro the hospital and other expenses for treatment etc. ( 3 ) THE respondents in their written statement did not controvert the fact that an incident took place between the parties on 26-7-1973 when the respondent 1 Meghu Bhoi was going to the land with his plough along with Chakra Bhoi. On the way, the appellant protested by making a false allegation that he (defendant 1) had cut the ridges of the land of the appellant. On the way, the appellant protested by making a false allegation that he (defendant 1) had cut the ridges of the land of the appellant. When respondent 1 protested to this allegation, the appellant raised the spade in his hand to assault him. At that time the second respondent reached the spot and in order to protest his father, assaulted the appellant and with the assistance of Chakra Bhoi and others snatched away the spade from his hand. The respondents went on to state that respondent 1 did not assault the appellant and the incident did not take place on the land of the appellant. On these averments they contested the claim for damages. ( 4 ) ON the aforesaid pleadings the trial Court framed several issues, of which issues Nos. 3,4 and 5 are relevant. They are quoted hereunder. " (3) was there any occurrence as alleged in the plaint on 26-7-1973? (4) Did the plaintiff sustain any mental and physical injury for the said occurrence? (5) Did any assault take place on Mundatal and Khaliamal land?"on assessment of the materials on record, the trial Court accepted the case of the appellant that in course of the incident on 26-7-1973, he was assaulted by respondent 2 due to which he suffered, physical and mental pain. On consideration of the materials on record he negatived the plea of the respondents that the assault by respondent 2 was taken recourse to for protecting his father, respondent 1. The trial Court held that in the facts and circumstances of the case use of force by respondent 2 on the appellant, was unnecessary. On these findings, the court decreed the suit in part awarding Rs. 200/-towards general damages to be paid by the respondents to the appellant. ( 5 ) ON appeal by the respondents, the lower appellate Court reversed the decision of the trial Court and dismissed the suit holding that respondent 2 was protected by his right of private defence in assaulting the appellant on 26-7-73 and he had not exceeded his right in doing so. The court held that the provisions of Ss. 97 and 102 of the Penal Code were applicable to the case. ( 6 ) AS noticed earlier, the second appeal has been admitted for examination of the question whether the right of private defence is available as a defence in an action on torts. The court held that the provisions of Ss. 97 and 102 of the Penal Code were applicable to the case. ( 6 ) AS noticed earlier, the second appeal has been admitted for examination of the question whether the right of private defence is available as a defence in an action on torts. ( 7 ) MR. K. B. Kar, the learned counsel for the appellant, contends that the lower appellate Court has committed an error of law in approaching the case as if the provisions of Ss. 97 and 102, IPC are applicable to it and this misconception has vitiated the entire judgment. The learned counsel further contends that the Court below, the final court of fact, has not discussed the relevant materials while coming to the conclusion that the right of private defence was available to respondent 2 while he assaulted the appellant on the date of incident. According to the learned counsel in any case, the Court should have held that even if the right of private defence was available to respondent 2, he had exceeded the same in the facts and circumstances brought forth by the evidence on record. ( 8 ) MR. J. P. Mishra, the learned counsel for the respondent, has strenuously urged that the conclusions arrived at by the first appellate Court are based on a proper appreciation of the materials on record. There is no illegality or infirmity in the judgment. Sri Mishra has laid stress on the limitations on the jurisdiction of this Court in second appeal. ( 9 ) BEFORE taking up the case on merit it would be appropriate to consider the scope and limitation on the jurisdiction of this court in second appeal, so that the discussions regarding merits of the case may be contained within the parameter of such limitation. The position has now to be accepted beyond controversy that a finding of fact arrived at by the first appellate court based on assessment of materials is not available to be interfered with in a second appeal, however, erroneous such finding may be [vide AIR 1963 SC 302 ]. Ramachandra Ayyar v. Ramalingam Chettiar. The position has now to be accepted beyond controversy that a finding of fact arrived at by the first appellate court based on assessment of materials is not available to be interfered with in a second appeal, however, erroneous such finding may be [vide AIR 1963 SC 302 ]. Ramachandra Ayyar v. Ramalingam Chettiar. The position has also to be accepted as equally settled that some of the well recognised exceptions of this proposition are; when the finding of fact is vitiated by a misconception on a point of law; material evidence has been ignored in arriving at the finding; the finding is based on no evidence; the finding is vitiated by errors of record or errors of procedure. While considering an appeal, the first appellate court should bear in mind that the scope for interfering with the findings of fact is extremely limited and hence its decision on question of fact is important and its duty onerous. The intention in limiting the scope of second appeal is that unless a substantial question of law requiring its consideration by this Court arises in a case, the judgment and decree of the first Appellate Court should be taken as final and binding on the parties. This purpose can be achieved if the decision of the first appellate court is arrived at on a careful and proper consideration of all the relevant materials on record in their proper perspective, otherwise it would not be a satisfactory and proper exercise of jurisdiction by the first appellate Court [vide AIR 1969 Orissa 18, Gopinath Deb v. Jagannath Baral; AIR 1980 SC 1754 , Madan Lal v. Mst. Gopi; AIR 1980 Pat 89 , Tahzibunnissa Bibi v. Dr. Sayed Azizur Rahman; (1966) 32 Cut LT 478, Khema Padhan v. Guna Sahu]. ( 10 ) COMING to the merits of the case, the question for consideration is whether the general exceptions embodied in the Penal Code are applicable in a civil suit regarding claim of damages under torts. ( 11 ) IN the present case, the claim for damages is based on the allegation that the appellant was assaulted by the respondent 2 without any justification, as a result of which he suffered physical and mental pain and suffering. The lower appellate court has expressly referred to the provisions of Ss. ( 11 ) IN the present case, the claim for damages is based on the allegation that the appellant was assaulted by the respondent 2 without any justification, as a result of which he suffered physical and mental pain and suffering. The lower appellate court has expressly referred to the provisions of Ss. 97 and 102 I. P. C. and has held that the principles embodied therein are applicable to the case. The distinction between action under torts and criminal action is not unknown. While the former is a wrong done to a person entitling him to claim damages, the latter is a wrong done to the society for which action can be taken under the criminal law. A single action by a person may give rise to the liability on both the courts (counts? ). ( 12 ) THE principle is well settled that self-defence is a permissible defence against an action on torts. The principle extends not only to the right of a person to protect himself but also to protect others like his wife, his parents and his child. Further, the person concerned is entitled to use only such force as is absolutely necessary in the facts and circumstances of the case for protection of himself or others and he is not entitled to use force in excess of what is necessary. As such, in the present case it was open to the respondent to take the plea that respondent 2 assaulted the appellant order to defend his father. It may be that the provisions of Ss. 97 and 102 I. P. C. in terms do not apply to a suit based on torts, but as noticed earlier, the principle of self-defence is applicable to the case. Such being the position, the contention of the learned counsel for the appellant that the judgment of the lower appellate court is liable to be set aside simply because he has referred to Ss. 97 and 102, I. P. C. , cannot be accepted. ( 13 ) THIS, however, does, not conclude the controversy in this appeal. Such being the position, the contention of the learned counsel for the appellant that the judgment of the lower appellate court is liable to be set aside simply because he has referred to Ss. 97 and 102, I. P. C. , cannot be accepted. ( 13 ) THIS, however, does, not conclude the controversy in this appeal. The question that remains for consideration is whether the finding of the lower appellate court that in the facts and circumstances of the case, respondent 2 was justified in assaulting the appellant in order to protect his father, respondent 1, and in doing so he had not exceeded his right of self-defence has been arrived at on proper consideration of all the relevant materials on record. ( 14 ) I have carefully perused the judgment of the courts below and I have given my anxious consideration to the rival contentions raised on behalf of the parties. The lower appellate Court appears to have fallen into an error in taking the view that since the principles embodied in Ss. 97 and 102, I. P. C. are applicable to the case, the matter has to be approached in the manner of trial of a criminal case. This is clear from the discussions in the judgment of the court below, wherein at more than one place he refers to the prosecution case and observes that the prosecution case has to be judged with suspicion because of the statement of the P. Ws. The court below has devoted a substantial part of the judgment to consider the site where the incident giving rise to the assault took place, whether it was on the field of the appellant or it was on the road when the appellant was going with other villagers to his field. This aspect of the matter was not very relevant in view of the case of the respondents in the written statement that respondent 2 did assault the appellant, but he was justified in doing so since it was done for the protection of his father, respondent 1. The simple question for consideration was whether on the materials on record the plea of self-defence taken by the respondent had been established. The discussions in the judgment of the lower appellate court further shows that his conclusion is not based on consideration of the entire materials on record. The simple question for consideration was whether on the materials on record the plea of self-defence taken by the respondent had been established. The discussions in the judgment of the lower appellate court further shows that his conclusion is not based on consideration of the entire materials on record. He based his finding on this aspect of the case solely on the evidence of D. W. 1, a witness who was cross-examined by the defendant with permission of the Court. Referring to some portions of the evidence of this witness the court below held that the right of private defence was available to respondent 1 and he did not exceed his right while assaulting the appellant. The Court did not take into consideration the evidence adduced on behalf of the appellant, particularly the evidence of P. W. 1, while discussing this aspect of the case. The trial court, on the other hand, had discussed in detail the evidence of all the witnesses from both the sides, the discrepancies in the evidence of P. Ws. vis-a-vis the averments in the plaint before coming to the conclusion that the facts and circumstances of the case did not justify use of force by defendant 2 respondent. The first appellate court, no doubt, had the jurisdiction and competency to differ from the finding of the trial Court, but that could be done only on proper consideration and assessment of all the materials on record. On the discussions aforesaid, it has to be held that the first appellate court in this case failed to exercise its jurisdiction properly. ( 15 ) MR. Mishra, learned counsel for the respondent, urged that I may peruse the evidence adduced in the case and uphold the decision of the lower appellate court if I come to the same conclusion. But I am not inclined to consider the evidence in this second appeal. It is appropriate that the lower appellate court which is the final court of fact, should assess the evidence and materials on record in its proper perspective and in the light of the correct principle of law. ( 16 ) IN the result the second appeal is allowed, the judgment and decree of the lower appellate court are set aside and the case is remanded to the lower appellate court for disposal in accordance with law. Both parties shall bear their respective costs of this appeal. ( 16 ) IN the result the second appeal is allowed, the judgment and decree of the lower appellate court are set aside and the case is remanded to the lower appellate court for disposal in accordance with law. Both parties shall bear their respective costs of this appeal. Appeal allowed. .