SC: A “Concurrent finding of fact” is not unassailable in appeal u/s100 CPC

The Hon’ble Supreme Court, on 14thAugust 2019, in the matter of State of Rajasthan & Ors. v. Shiv Dayal & Anr. observed that while hearing the second appeal under Section 100 of CPC, a “concurrent finding of fact” is usually binding on the High Court, however, it is not unassailable.

The Hon’ble Supreme Court observed that:

It is not the principle of law that where the High Court finds that there is a concurrent finding of two Courts (whether of dismissal or decreeing of the suit), such finding becomes unassailable in the second appeal. (Para 16)

“Concurrent finding of fact” is usually binding on the High Court while hearing the second appeal under Section 100 of the Code of Civil Procedure, 1908. (Para 17)

In order to record any finding on the facts, the Trial Court is required to appreciate the entire evidence (oral and documentary) in the light of the pleadings of the parties. (Para 18)

The Appellate Court also has the jurisdiction to appreciate the evidence de novo while hearing the first appeal and either affirm the finding of the Trial Court or reverse it. (Para 19)

If the Appellate Court affirms the finding, it is called “concurrent finding of fact” whereas if the finding is reversed, it is called “reversing finding”. (Para 20)

When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (Para 21)

Whether a concurrent finding of fact was recorded de horsthe pleadings or was it based on no evidence or was it based on misreading of material documentary evidence or was it recorded against any provision of law or was the decision one which no Judge acting judicially could reasonably have reached are all substantial questions of law within the meaning of Section 100 of the Code of Civil Procedure, 1908.(This inference has been drawn on the basis of Para 22)

Copy of judgement: Judgement_14-Aug-2019

-Adv. Tushar Kaushik

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