Research › Search › Judgment

Himachal Pradesh High Court · body

2001 DIGILAW 195 (HP)

SECRETARY (PW) TO THE GOVT. OF HP v. MEHAR CHAND

2001-08-17

A.K.GOEL

body2001
JUDGMENT Arun Kumar Goel, J. (Oral).- Facts giving rise to this appeal are that Mehar Chand respondent is the owner of land comprised in khasra No. 5010, measuring 16 bighas 9 biswas situated in village Phati Nithar, Mauza Himri, Pargana and Tehsil Nirmand, District Kullu, Himachal Pradesh. While constructing Jhazar Nither road, debris and boulders fell on this land. Some apple trees of Mehar Chand, respondent (hereinafter referred to as the "plaintiff") were damaged/destroyed in this exercise of road construction by the appellants (hereinafter referred to as the "defendants"). Claim was lodged with defendant No. 3 by the plaintiff, but of no avail. 2. On the failure of the defendants to pay the compensation for the damage caused plaintiff filed CWP No. 335 of 1986 in this Court which was dismissed on 18.8.1986 by a Division Bench in the following terms:- The learned Deputy Advocate General states that a Demand Draft dated July 30,1986 for Rs. 15429/- drawn in favour of the petitioner has been deposited in the Registry of this Court pursuant to the order made on July 14,1986 the Registry will hand over the Demand Draft to the learned counsel for the petitioner for onward transmission to the petitioner. The petition raises disputed questions of fact which cannot be decided in he present proceedings. Under the circumstances, the petitioner is relegated to his ordinary remedy with regard to the remaining claims/part of the claims. The writ petition is rejected in light of the aforesaid observations." 3. After receipt of the amount as detailed in the aforesaid order of this Court, plaintiff issued notice under section 80 of the Code of Civil Procedure and on the failure of the defendants to comply with the same, filed a suit for recovery of Rs. 50,000/- against the defendants. Though he was entitled to more amount according to the plaintiff, he was entitled to this amount after deducting a sum of Rs. 15429/paid in terms of the orders of this Court supra. According to him, number of apple trees which were damaged was 74 and their ages were between 7 to 8 years. Plaintiff also claimed interest at the rate of 18% P.A. on this amount. 4. The suit was contested and resisted by the defendants. 15429/paid in terms of the orders of this Court supra. According to him, number of apple trees which were damaged was 74 and their ages were between 7 to 8 years. Plaintiff also claimed interest at the rate of 18% P.A. on this amount. 4. The suit was contested and resisted by the defendants. They pleaded limitation as bar for maintaining the suit and the area of the land being 15 bighas and 9 biswas and not 16 bighas 9 biswas so far as khasra No. 5010 is concerned. Their further case was that out of this total area, damage was caused to 2 bighas and 17 biswas that too was very negligible. It was further case of the defendants that 22 trees were damaged. Damage to such trees was assessed at Rs. 15429/ by the department being the cost of removal of debris as well the said trees which was deposited in the Registry of this Court. This reflected just and reasonable compensation. Filing of the writ petition was admitted. However, the plaintiff having no cause of action was also pleaded as a ground and a prayer was made for dismissal of the suit. 5. On the aforesaid pleadings of the parties, trial court framed the following issues:- 1. Whether the apple orchard, crop and other plants comprised la khasra No. 5010 measuring 16 bighas was totally destroyed by negligence of defendants as alleged? ..OPP 2. Whether the plaintiff is entitled of compensation, if so, to what amount? 3. Whether the suit is within time? ...OPP 4. Whether area of 2 bighas 17 biswas was covered with construction of JhajjarNithar Road? ...OPD 5. Relief. 6. After considering the oral as well as documentary evidence, trial court dismissed the suit of the plaintiff. 7. Plaintiff feeling aggrieved by the said judgement and decree of the trial court preferred an appeal before the learned lower court below. This came up before the learned Additional District, Shimla who vide impugned judgement and decree dated 15.12.1993, reversed the judgement and decree passed by the trial court and consequently the suit of the plaintiff was decreed for a sum of Rs.32439/alongwith interest at the rate of 6% per annum from the date of the filing of the suit with future interest at the same rate alongwith costs of the suit and the appeal. Hence, this second appeal, 8. Hence, this second appeal, 8. This appeal was admitted on 2.11.1995 on the following substantial questions of law :- 1. Whether the misreading of oral and documentary evidence itself amounts to substantial question of law? 2. Whether the learned lower court below has misread the evidence produced by the appellants? 3. Whether in the facts and circumstances of the present case the decree under appeal is not sustainable in law ? 9. It has been urged on behalf of the appellants that the first appellate court has fallen into grave error by misreading and misconstruing the oral as well as documentary evidence produced by the parties and has passed decree in favour of the plaintiff. The same is liable to be quashed and set aside. Reference was made by him to the statements of PWs as well as Dws. Thus, according to him, substantial question Nos. 1 to 3 above, needs determination in this case in favour of the appellants. 10. On he other hand, Mr. O.P. Sharma, learned counsel for the plaintiff has submitted that there is no question of law much less substantial question of law requiring determination in this appeal. Thus, the impugned judgement and decree called for no interference. He further submitted that this is a pure and simple case of appreciation of evidence so far as EXts, PW-3/A, PW-3/B and PW-6/A are concerned. By referring to these documents, he submitted that in Ext.PW-3/B, it is clearly admitted by respondent No.3 that instead of 74, 73 trees have been damaged. In this view of the matter, it can be said that there is no misreading/misappreciation of evidence. Compensation assessed by the learned first appellate court below is on the basis of the record to which no exception can be taken per him. 11. From the facts and circumstances of the case it is clear that the findings of the learned lower appellate court are based on the evidence of the parties as well as contemporaneous official documents which have been proved on the record. I am satisfied that the first appellate court has arrived at a correct conclusion and its findings do no suffer from any error either of law or procedure. Thus, those call for no interference in this appeal. 12. I am satisfied that the first appellate court has arrived at a correct conclusion and its findings do no suffer from any error either of law or procedure. Thus, those call for no interference in this appeal. 12. In addition to this, in the facts and circumstances of the case, it is clear that the difference between the parties is regarding number of damaged trees. At the risk of repetition, it may be reiterated that in view of Ext.PW-3/B this matter is a (so not in controversy when defendants No. 3 himself has admitted that the number of damaged trees is 73 and not 74. It cannot be a substantial question of law calling for interference by this Court. 13. Above all, judgement passed by the learned first appellate court cannot be said to be either contrary to mandatory provisions of law governing the case or being contrary to law pronounced by the Supreme Court or being based on inadmissible evidence. At the same time, it also cannot be said to be a case of no evidence. I have no hesitation in holding that even erroneous findings of fact do not require to be disturbed in a second appeal under Section 100 of the Code of Civil Procedure. 14. In the instant case, the finding of fact recorded by the first appellate court cannot be said to be against the weight of evidence so as to hold that question No.1 is a question of law much less substantial question of law. As already noted, even on merits of the controversy between the parties, the decision rendered by the first appellate court below is legally sound based on evidence examined by the parties. If it is interfered with, such an order will be without jurisdiction, For taking this view, reference can be made to Dynanoba Bhaurao Shemade Vs. Maroti Bhaurao Marnor (1999) 2 SCC 471. 15. In Kondiba Dagadu Kadam Vs. If it is interfered with, such an order will be without jurisdiction, For taking this view, reference can be made to Dynanoba Bhaurao Shemade Vs. Maroti Bhaurao Marnor (1999) 2 SCC 471. 15. In Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar and others, (1999) 3 SCC 722, what was held and relevant for the purpose of the present appeal was as under:- "If the question of law termed as a substantial question stands already decided by a larger Bench of High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be termed to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The application of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be a substantial question of law. Be where it is found that the first appellate court has assumed jurisdiction which did not vest in it , the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate, court is shown to have exercised its discretion in judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. This Court in Reserve Bank of India Vs. Ramkrishna Govind Morey, (1976) 1 SCC 803 : AIR 1976 SC 830, held that whether the trial court should not have exercised its jurisdiction differently is not a question of law justifying interference." 16. In Ishwar Dass Jain (Dead) through LRs. Vs. Sohan Lal (Dead) by LRs. (2000) I SCC 434, while considering the words substantial question of law it was held by the Supreme Court that when vital evidence which could have led to an opposite conclusion, which was inadmissible was relied upon in such a situation it calls for interference. 17. As already observed in the instant case, there is evidence based on official record which suggests that the number of damaged trees was 73 and not 74 as claimed by the plaintiff. 17. As already observed in the instant case, there is evidence based on official record which suggests that the number of damaged trees was 73 and not 74 as claimed by the plaintiff. First appellate court has only after assessing the extent of damaged trees deducted the amount received by the plaintiff and for the remaining amount, has passed the decree. In this view of the matter, no exception can be taken to the said decree. 18. In Satya Gupta (Sm.) alias Madhu Gupta Vs. Brijesh Kumar, (1998) 6 SCC 423, it was held by the Supreme Court as under:- "At the outset, we would like to point out that the findings on facts by the lower appellate court as a finial courts of facts, are based on appreciation of evidence and the same cannot be treated as perverse or based on no evidence. That being the position, we are of the view that the High Court, after reappreciating the evidence and without finding that the conclusions reached by the lower appellate court were not based on the evidence, reversed the conclusions on facts on the ground that the view taken by it was also a possible view on the facts. The High Court, it is well settled, while exercising jurisdiction under Section 100 CPC, cannot reverse the findings of the lower appellate court on facts merely on the ground that on the facts found by the appellate court another view was possible." 19. In Ramachandra Ayyar and another Vs. Ramalingam Chettiar and another, AIR 1963 SC 302, what was observed and is relevant for the purpose of the present appeal is as under :- "Held that the High Court was not justified in interfering with the findings of fact recorded by the lower appellate Court merely because the judgement of the lower appellate Court was" not as elaborate as that of the trial Judge, or because some of the reasons given by the trial Judge had not been expressly reversed by the lower appellate Court. The finding of the lower appellate court could not be said to be perverse or not supported by any evidence." 20. The finding of the lower appellate court could not be said to be perverse or not supported by any evidence." 20. these are few illustrative cases, otherwise as on date there is a catina of authorities of the Supreme Court of India, which have set at rest the controversy as to scope of Section 100 CPC and the circumstances where under the High Court can interfere in a second appeal. 21. Applying the aforesaid tests laid down by the Supreme Court and after giving due consideration to the evidence, it cannot be said by any standards that the findings recorded by the first appellate court were not possible and/ or those are perverse calling for interference in this appeal, thus, it is clear that there is no question of law much less substantial question of law involved in this appeal calling for interference as forcefully urged oh behalf of the appellant. 22. No other point was urged in support of the aforesaid substantial questions of law. 23. For the foregoing reasons, there is no merit in this appeal which is accordingly dismissed with costs throughout and decree passed by the first appellate court is upheld.