HC - Where the Courts have ignored material evidence or acted on no evidence, the High Court may interfere under Section 100 CPC


IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH
AT HYDERABAD

THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR

SECOND APPEAL No.404 of 2010

Dated:- 16th August, 2010

Between:-

Vavilapalli Appa Rao and another
…Appellant 
AND
Nambala Rambabu
…Respondent
ORDER:-

         
This appeal is directed against the judgment and decree dated 11.12.009 passed in A.S.No.246 of 1998 by the VIII Additional District and Sessions Judge (Fast Track Court) at Visakhapatnam (for short, ‘appellate Court’) whereby and whereunder the appellate Court dismissed the appeal filed by the defendants and confirmed the judgment and decree dated 06.05.1997 made in O.S.No.472 of 1994 passed by the Principal District Munisif, Visakhapatnam (for short, ‘trial Court).
         
2.          The respondent herein filed a suit in O.S.No.472 of 1994 before the trial Court for permanent injunction restraining the appellants herein, their men and agents from interfering with the peaceful possession and enjoyment of the plaint schedule property.  Their case is that one Late Adinarayana, in the year 1948, purchased the suit schedule property from the vendors under the original of Ex.A.2.  His case is that he obtained a sanction plan from the municipal authorities vide B.A.No.264 of 1994 and got approved the sanction plan on 25.03.1994 under Ex.A.1.  Alleging that the appellants herein are interfering with the peaceful possession and enjoyment of the plaint schedule property, he filed a suit for permanent injunction.  The case of the appellants is that there is a 10 feet pathway leading from west to east and that the respondent is closing the said 10 feet pathway and, therefore, the respondent is not entitled for injunction order.
         
3.          On behalf of the respondent, P.Ws.1 and 2 were examined and Exs.A.1 to A.3 were marked.  On behalf of the appellants, D.Ws.1 to 3 were examined but however no exhibits were marked.
   
          4.          The trial Court, having observed that Ex.A.2 – Sale Deed is not legible and that the other neighbours of the plaintiffs and defendants have not raised any objection and that the municipality itself had sanctioned plan in favour of the respondent enabling him to construct house, decreed the suit.  Aggrieved by the same, the appellants herein filed an appeal before the appellate Court and the appellate court also, having considered the oral and documentary evidence available on record, came to the conclusion that the immediate neighbours of both the plaintiffs and defendants did not come forward to speak about the 10 feet passage and that the plaintiff had denied the existence of the said 10 feet passage and that the municipality has sanctioned plan in favour of the respondent and that the witnesses examined on behalf of the appellants are not the competent persons to speak about the pathway, dismissed the appeal confirming the judgment of the trial Court.

          5.          Heard the learned counsel on record.
         
6.          The main contention of the learned counsel for the appellants is that as Ex.A.2 – the document filed by the respondent himself recites about the 10 feet pathway, the Courts below failed to consider the recitals of Ex.A.2 and thereby did not consider the material evidence and that non consideration of material evidence effecting the result of the case raises a substantial question of law.

          7.          In reply, learned counsel for the respondent submitted that the appellants have not let in any satisfactory evidence and that both the Courts below have categorically held that there is no passage dividing the plaint schedule property into two parts and that the first respondent herein was granted temporary injunction till the disposal of the suit and when the appellants herein filed an appeal but the appellate Court did not grant any injunction in their favour, now, i.e. at the second appeal stage, they have obtained injunction order and that the respondent has already completed its construction and the appellants ought to have filed suit for mandatory injunction and that suit for bare injunction is not maintainable and the suit has become infructuous and that in the suit filed by the respondent, the appellants cannot seek any injunction order particularly when both the Courts have held in favour of the respondent.
         
          8.          The only point that arises for consideration is whether the Courts below failed to consider the recitals of Ex.A.2 and thereby raises a substantial question of law and the their findings are liable to be set aside.

          9.          It is not in dispute that the respondent is the owner of the plaint schedule property which was purchased by his father under Ex.A.2.  It is also not in dispute that the respondent seems to have obtained sanction plan from the municipal authorities under Ex.A.1.  Admittedly, injunction order was in favour of the respondent before the trial Court.  Admittedly, the appellants failed to obtain any injunction order during the pendency of the appeal.  But as seen from the contents of the judgment of the appellate Court, the appellate Court, in para 11 of its judgment referred Ex.A.1 as plan but in para 12, referred Ex.A.2 as plan (in fact, Ex.A.2 is copy of sale deed) and the recitals of the Ex.A.2 – sale deed under which the respondent is claiming his title over the property seems to have not been discussed. Admittedly, since the appellate Court seems to have not discussed about the recitals of Ex.A.2 but however discussed the evidence of D.W.2 and D.W.3 and other circumstances of the case, it appears that the appellate Court committed a mistake in not considering the material evidence.  When the Court ignores the material evidence, the High Court has to interfere even at the stage of second appeal.  Since the judgment of the appellate Court is not based on material evidence, a substantial question of law arises for adjudication.

          10.          In case between Hero Vinoth (Minor) Vs. Seshammal[1], the Apex Court held as follows:-
The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law.  Also, a substantial question of law has to be distinguished from a substantial question of fact.  The phrase ‘substantial question of law’, as occurring in the amended Section 100 CPC is not defined in CPC.  The word substantial, as qualifying ‘question of law’, means – of having substance, essential, real of sound worth, important or considerable.”

          It was further held as follows:-

An interference of fact from the recitals or contents of a document is a question of fact.  But the legal effect of the terms of a document is a question of law.  Construction of a document involving the application of any principle of law, is also a question of law.  Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.”

          It was further held as follows:-

“The general rule is that High Court will not interfere with the concurrent findings of the Courts below.  But it is not an absolute rule.  Some of the well-recognized exceptions are where (i) the Courts below have ignored material evidence or acted on no evidence; (ii) the Courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the Courts have wrongly cast the burden of proof.  When we refer to ‘decision based on no evidence’.  It not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.”

          11.          In case between Kashmir Singh Vs. Harnam Singh and another[2], the Apex Court observed as follows:-
Where the Courts have ignored material evidence or acted on no evidence, the High Court may interfere under Section 100 CPC.”

          12.          It is true that the other neighbours of plaintiffs and defendants seem to have not raised any dispute and they have also not appeared as witnesses on behalf of either the appellants or respondents.  Since it is contended that the respondent had already constructed the wall, the subsequent charges may have to be taken into consideration.  Anyhow, it appears that the matter requires reconsideration.

13.          In the above circumstances, the Second Appeal is allowed and the judgments of both the Courts below are set aside.  The matter is remanded back to the trial Court.  The parties, if they are so advised, may lead further evidence and the trial Court may dispose of the matter in accordance with law.  Since it appears that the appellants herein were not granted any injunction during the pendency of the appeal and the injunction order was in favour of the respondent before the trial Court, the interim injunction granted by this Court on 25.06.2010 stands vacated and it is for the parties to approach the trial Court and seek appropriate relief, pending disposal of the matter.  No costs.

_______________________________
JUSTICE B.CHANDRA KUMAR
August 16, 2010
Bvv


[1] (2006) 5 Supreme Court Cases 545
[2] AIR 2008 Supreme Court 1749

No comments:

Post a Comment