SC Critical Of Bombay HC

 

 

 

By Adv. R. S. Agrawal 

 

THROUGH the judgement of the case –Suresh Lataruji Ramteke v. Sau Sumanbai Pandurang Petkar and others, delivered on September 21, 2023, Justice Bhushan R Gavai and Justice Sanjay Karol, at the Supreme Court, have been critical of the judgement of Second Appeal No. 324/2021, decided by the Nagpur Bench of the Bombay High Court on September 30, 2022. The Supreme Court has pointed out, that the concurrent findings of fact in respect of readiness and willingness on the part of the plaintiff to perform the contract, were set aside by the High Court, without pointing out the exceptional circumstances or the perversity in the findings which were reached by the courts below. According to the Supreme Court, for the court to have done so, in accordance with law, the actual evidence, which was before the courts below, had to be called for. This is so because, if the findings returned are to be set aside on the touchstone of being perverse, the same should unmistakably be reflected from record. If this is not so done, the court of first appeal being the “final court of fact,” would be reduced to a mere saying with no actual effect. After all, a second appeal is not a “third trial on facts”, and so, for re-appreciation of evidence to be justified, and for the same to be required –as well as demonstrably, at a different threshold, a “possible different view”, perversity or other conditions of ‘no evidence’ or “inadmissible evidence” ought to be urged, and subsequently, with the court being satisfied on the arguments being advanced, of such a possibility, the court would then, proceed to call for the record. That is to say that accepting the argument of perversity merely on the submissions made and not having appreciated the record, would be unfair to the court of first appeal. The ‘haste’ with which the High Court proceeded to dispose of the appeal without proper and adequate opportunity to address arguments cannot be appreciated.

 

The governing statute lays considerable emphasis on hearing the parties on all questions – and the same is reflected in various pronouncements of this Court. The approach adopted by a Court in disposing of such appeals must abide by the same. In the opinion of the SC, it is apparent from the principles and respective judgments that that the second appeal is envisioned, much like any other process of the Court, to be a step-by-step process, each step further being a consequence of the previous one. Framing of substantial questions at the stage of admission, the appeal then being admitted for hearing, hearing thereon, and then a reasoned judgement are the steps in the process. However, as a reading of the impugned judgement by the High Court reveals, these steps came to be followed, only partially, more so, ignoring the time element, inherent therein. The SC is of the clear view that as the decisions of the cases – Sumara Umar Ahmad, Kichha Sugar, virupakshappa and Gurudev Kaur show, hearing the parties, on all questions, framed at the time of admission as also the one framed, added or altered, is absolutely essential. In this case, the parties were not given the requisite time to meet the questions framed by the court. Section 100(5) C.P.C. suggests that there is a gap between framing of the questions at admission and hearing, as the proviso thereto gives an opportunity to the court to frame additional questions at the time of hearing, on which the parties have to be heard as well. Meaning thereby, the questions framed at the time of admission, at such point of subsequent framing of questions are already known to the parties and they have had time to prepare to address the arguments on the same. It is during the arguments that a further important issue is discovered and a question in that regard is framed, with the parties then being granted time to meet that question as well. The SC has stated that its view find support in the judgement of the case – Amar Singh v. Dalip Singh-(2012) 13 SCC 405, wherein it has been held that: (a) the purpose of framing of substantial question of law is to give the parties an opportunity to come prepared on that particular question. (b) When a substantial question of law is formulated by the court then the same must be made known to parties and thereafter they have to be given an opportunity to advance arguments thereon. (c) If any additional questions were framed at the time of hearing, the court must hear the parties upon that question as well. In this case, questions of law were framed on the second date of hearing, the parties were heard right then and there and the second appeal was disposed of with the judgement being dictated and findings of facts reversed. That is not in consonance with the manner set out for the disposal of a second appeal.

 

The questions of law raised through this appeal have been answered by the Supreme Court stating that: (1) A Court sitting in second appellate jurisdiction is to frame substantial question of law at the time of admission, save and except in exceptional circumstances. Post such framing of questions the Court shall proceed to hear the parties on such questions, that is, after giving them adequate time to meet and address them. It is only after such hearing subsequent to the framing that a second appeal shall come to be decided. (2) In ordinary course, the HC in such jurisdiction does not interfere with findings of fact, however, if it does find any compelling reason to do so as regard in law, it can do but only after perusing the records of the Trial Court, on analysis of which the conclusion arrived at by such a Court is sought to be reversed. In other words, when overturning findings of fact, the Court will be required to call for the records of the Trial Court or if placed on record , peruse the same and only then question the veracity of the conclusions drawn by the Courts below. Through this appeal by special leave, reversal of the concurrent findings returned by the courts below vide judgement of September 3, 2014 of Civil Judge, Senior Division, Gadchiroli and judgement of PDJ, Gadchiroli delivered on October 1, 2021 were reversed by the High Court here, and the impugned judgement of the HC has met the similar fate at the Supreme Court.