Second Appeal- Question Of Law Doesn't Arise In Abstract; Mere Reference To Facts Does Not Amount To Reappreciation Of Evidence: Supreme Court

The Supreme Court observed that merely because the High Court, while considering a second appeal, refers to certain factual aspects in the case to raise and conclude on the question of law, the same does not mean that the factual aspect and evidence has been re-appreciated.

Question of law for consideration will not arise in abstract but in all cases will emerge from the facts peculiar to that case and there cannot be a strait jacket formula, the bench of Chief Justice of India NV Ramana, Justices AS Bopanna and Hrishikesh Roy said.

In this case, the plaintiff filed a suit seeking the relief of perpetual injunction to restrain the defendants from interfering with the peaceful possession and enjoyment of the plaint schedule property. The Trial Court held that the plaintiff  failed to prove possession over the suit schedule property and thus dismissed the suit. The First appellate court reversed these findings and decreed the suit. In second appeal filed by the defendant, the High Court restored the Trial Court order dismissing the suit.

In appeal before the Supreme Court, the plaintiff contended that the High court had indulged in re­appreciation of the evidence which is impermissible at second appeal stage.

While considering the appeal, the Supreme Court bench noted that there is very limited scope for re-appreciating the evidence or interfering with the finding of fact rendered by the trial court and the first appellate court in a second appeal under Section 100 of the Civil Procedure Code.  It noted that divergent findings on fact were available before the High Court. In such a context, though reappreciation of the evidence was not permissible, except when it is perverse, but it was certainly open for the High Court to take note of the case pleaded, evidence tendered, as also the findings rendered by the two courts which was at variance with each other and one of the views taken by the courts below was required to be approved, the court said.

"15. In view of the above, although the counsel for the appellant may be technically correct in his submission that the High Court erred in not clearly answering the question of law framed by it under Section 100, CPC, the High Court was still within its jurisdiction to determine whether the reading of the evidence on record by one of the Courts below was perverse. Question of law for consideration will not arise in abstract but in all cases will emerge from the facts peculiar to that case and there cannot be a strait jacket formula. Therefore, merely because the High Court refers to certain factual aspects in the case to raise and conclude on the question of law, the same does not mean that the factual aspect and evidence has been reappreciated. As already noted, the divergent view of the courts below on the same set of facts was available before the High Court.", the bench observed.

Taking note of other aspects of the case, the bench dismissed the appeal.

Case: Balasubramanian vs. M. Arockiasamy (dead) ; CA 2066 OF 2012
Coram: CJI NV Ramana, Justices AS Bopanna and Hrishikesh Roy

Appearances: Senior Advocate Jayant Muthuraj for appellant;  Advocates B Raghunath and Sriram Parakkat for respondents.

Citation: LL 2021 SC 411

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