No second appeal on erroneous finding of fact:
The provisions of S. 100, C.P.C. are clear and unambiguous. There is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however gross the error may seem to be.
Nor does the fact that the finding of the first appellate court is based upon some documentary evidence make it any the less a finding of fact. A judge of the High Court has, therefore, no jurisdiction to interfere in second appeal with the finding of fact given by the first appellate court based upon an appreciation of the relevant evidence.
The above observations were made by their Lordships of the Supreme Court in D. Pattabhiramaswami v. S. Hanymayya & others, (A.I.R. 1959 S.C. 57). Their Lordships deprecated the practice of some Judges of the High Court disposing of second appeals as it they were first appeals, notwithstanding such clear and authoritative pronouncements on the scope of S. 100, C.P.C. This introduces apart from the fact that the High Court assumes and exercises a jurisdiction which it does not possess, gambling element in the litigation and confusion in the mind of the litigant public.
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ADVERTISEMENTS:
Subsequent event:
Where in an eviction application filed on the ground that the tenant had acquired vacant possession or residence, the tenant had set up a will in order to show that the residential house newly built up by the deceased mother of the tenant was not inherited by him, the High Court in second appeal can take note of the subsequent decision of a District Judge in a separator proceeding under the Succession Act that they will in question was not a genuine will. (Vardesh Chandra Channa v. Prem Nath, A.l.R. 1981 N.O.C. 110, Delhi).