Second Appeal

Applicant / plaintiff claimed to be daughter of deceased owner of suit land and his widows were limited owners who had transferred land beyond their entitlement and that land fell in legal share of applicant / plaintiff

Suit filed by applicant / plaintiff was dismissed by Trial Court but Lower Appellate Court allowed her appeal and suit was decreed

In second appeal filed by respondents / defendants Judge in Chambers of High Court set aside judgment and decree passed by Lower Appellate Court

Validity

Power to review can only be exercised for the specific purpose of "correcting any error or supplying any omission" which appears on the surface of the record and can be detected without further elaborate inquiry or investigation

This may apply to accidental or arithmetical mistake due to some forgetfulness not involving a mental process of reasoning or appreciation of any law or the facts already proved or admitted

Judge in Chambers of High Court fell in error while making observations regarding conditional withdrawal of suit and non-payment of cost in the judgment under review while referring to some other suit having no concern with the lis, which had a different subject matter and legal basis

Division Bench of High Court set aside judgment under review as the same suffered from error apparent on the face of record which was so clear and manifest that it could not be permitted to remain on the record

Division Bench of High Court remanded the matter to Judge in Chambers of High Court for decision afresh on appeal filed by respondents / defendants

Review application was allowed in circumstances.

Appellant / defendant contended that the agreement pertained to year 2005 and after such long time the agreement could not be performed as it was a discretionary relief

Validity

Discretion is required to be exercised keeping in view the facts and circumstances of each case and the terms of relevant agreement

Exercise must not be arbitrary and has to be based on sound and equitable reasons

Respondent / plaintiff instituted suit one day after the cut-off date

Respondent / plaintiff through his evidence remained successful in demonstrating with certainty that he had capacity to perform the agreement

Concerned branch manager produced ledger in Trial Court to show that through banking instrument respondent / plaintiff withdrew balance consideration on relevant date

Such evidence left no doubt that respondent / plaintiff had capacity to perform the agreement

Willingness of respondent / plaintiff was reflected from prompt and immediate institution of suit and by that time no prejudice was caused to appellant / defendant but somehow he himself kept on delaying the matter

Both the Courts below had rightly exercised their discretion to grant the relief

Second appeal could only lie in High Court on the grounds that the decision was contrary to law; failure to determine some material issue of law, and substantial error or defect in the procedure provided by Civil Procedure Code, 1908 or law for the time being in force which could possibly have emanated an error or slip-up in determination or decisiveness of the case on merits

High Court declined to interfere in judgments and decrees passed by two Courts below as there was no illegality

Second appeal was dismissed.

A second appeal to the High Court lies only on any of the following grounds; (i) the decision being contrary to law or usage having the force of law; (b) the decision having failed to determine some material issue of law or usage having the force of law; (iii) a substantial error of defect in the procedure provided by C.P.C. or by any other law for the time being in force which may possibly have produced error or defect in the decision of the case upon merits

Notwithstanding such clear provisions on the scope of second appeal, sometimes the High Courts deal with and decide second appeals as if those were first appeals; they thus assume and exercise a jurisdiction which the High Courts do not possess and thereby also contribute to unjustified prolongation of litigation process which is already chocked with high pendency of cases

High Court in such cases cannot enter into the exercise of re-reading and re-appraisal of evidence, in second appeal, and reverse the findings of facts of the first appellate court, much less the concurrent findings of facts reached by the Trial court as well as the first appellate court.

Right to file second appeal can be set into motion only when the decision is contrary to law; fails to determine some material issue of law, and substantial error or defect in the procedure provided by the Code or law.

Under S. 100 of C.P.C. a second appeal to the High Court lies only on any of the following grounds: (i) the decision being contrary to law or usage having the force of law; (ii) the decision having failed to determine some material issue of law or usage having the force of law; and (iii) a substantial error or defect in the procedure provided by C.P.C. or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon merits

The scope of second appeal is thus restricted and limited to these grounds, as S. 101, C.P.C. expressly mandates that no second appeal shall lie except on the grounds mentioned in S. 100, C.P.C.

Notwithstanding such clear provisions on the scope of second appeal, sometimes the High Courts deal with and decide second appeals as if those were first appeals; High Courts thus assume and exercise a jurisdiction which they do not possess, and thereby also contribute to unjustified prolongation of litigation process which is already chocked with high pendency of cases

A High Court cannot, in such case, enter into the exercise of re-reading and re-appraisal of evidence, in second appeal, and reverse the findings of facts of the first appellate court, much less the concurrent findings of facts reached by the trial court as well as the first appellate court

It has, in second appeal, no jurisdiction to go into the question relating to weightage to be attached to the statements of witnesses, or believing or disbelieving their testimony, or reversing the findings of the courts below just because the other view can also be formed on the basis of evidence available on record of the case.

Concurrent findings are not interfered with under S. 100 of the C.P.C. unless the lower courts have misread the evidence on record, or may have ignored a material piece of evidence on record through perverse appreciation of evidence

Reappraisal of evidence on record by the second appellate court is not permissible while exercising jurisdiction under S. 100 of the C.P.C.

Provisions restricting grounds that may be taken in second appeal are based on public policy expressed in the maxim "interest reipublicae ut sit finis litium" (it concerns the state that there be an end to litigation)

Conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained

No Court has power to add or enlarge the grounds, so as to determine a question merely on an equitable ground if they come in conflict with them or ignore the provisions of law.

Suit filed by respondent/plaintiff was decreed in his favour by Trial Court but Lower Appellate Court allowed appeal of petitioners/defendants and dismissed the suit

High Court while disposing of Second Appeal, decreed the suit in favour of respondent/plaintiff

Validity

If findings of facts reached by Lower Appellate Court are at variance with those of Trial Court, the former are to ordinarily prevail although it would not possess the same value or sanctity as that of a concurrent finding

Such findings by Lower Appellate Court are immune from interference in Second Appeal provided they have passed the test prescribed under section 100, C.P.C.

Findings of two Courts cannot be subjected to a Second Appeal, even if erroneous

In the present case judgment passed in Second Appeal was nothing but a replacement by High Court of its own view in an attempt to do equity which was not permissible under section 100, C.P.C.

Second Appeal could not operate as a regular First Appeal under section 96 C.P.C.

Supreme Court set aside judgment and decree passed by High Court in exercise of Second Appeal and restored that of Lower Appellate Court, as it was an interference and was neither justified nor required

Specific performance was only a discretionary relief and such discretion was lawfully exercised by Lower Appellate Court

Appeal was allowed.

Concurrent findings are not interfered with under section 100 of the C.P.C. unless the lower courts have misread the evidence on record, or may have ignored a material piece of evidence on record through perverse appreciation of evidence

Reappraisal of evidence on record by the second appellate court is not permissible while exercising jurisdiction under section 100 of the C.P.C.

It is settled law that concurrent findings are not interfered with under S.100 of the C.P.C. unless the lower courts have misread the evidence on record, or may have ignored a material piece of evidence on record through perverse appreciation of evidence.

Reappraisal of evidence on record by the second appellate court is not permissible while exercising jurisdiction under S.100 of C.P.C.

Where Second Appeal under S.100, C.P.C. lies to the High Court, civil revision petition shall not be maintainable against the judgment passed by the First Appellate Court.

Order/judgment passed by the two courts below were well reasoned and in accordance with law, thus, there was no reason to interfere in the concurrent findings of two courts below, which were outcome of a proper application of judicial mind to the facts and circumstances of the case.

Respondent / plaintiff, under S. 2(d) of Sindh Payment of Wages Act, 2015, could not have approached the Authority and had correctly invoked jurisdiction of Civil Court

Lower Appellate Court and Trial Court did not examine terms of contract between respective parties and had placed undue reliance on minutes of meeting of Board of directors

Provision of Regln. 1(3) of Pakistan National Shipping Corporation (Service) Regulations, 1984, had restricted its applicability to contractual employees

High Court set aside judgments and decrees passed by two Courts below

Second appeal was allowed in circumstances.

Suit for declaration, cancellation, possession, injunction and damages filed by the appellant was dismissed on two counts i.e. filing of photocopies of documents and limitation

Appellant preferred an appeal, which was also dismissed on the same technical counts despite the fact that certified copies of the documents had been filed

Validity

Claim of the appellant had been declined on the point of limitation not only by believing the document, the genuineness of which he had challenged on the ground of fraud but also by not believing certified true copies of the documents, which he was allowed to file by the appellate court itself in order to defeat the observations of the Trial Court against him on filing of the photostat copies thereof

When the validity of the document in its entirety was challenged on the ground of being false and fabricated, then the date of its execution would not be taken up as a reference for determining limitation period for filing the suit against it in absence of a thorough enquiry by the Trial Court to determine its exactness first

Appellant was not aware of document challenged by him since its execution, or that the date of its execution was correct but contents had been distorted or manipulated, to make the date of execution as a reference point to decide limitation of the case

Plaintiff in his plaint asserted that he came to know of such manipulation in 2011 and he challenged it by filing the suit in 2013 i.e. within three years

Respondents had failed to pursue their case before the Trial Court and did not file any written statement to support their point of view

In absence of any evidence contradicting claim of the plaintiff about getting knowledge of the questioned document in 2011, there was no material before the courts to come to a conclusion that the appellant was aware of the document and he failed to question the same before any forum within time

Appellate court failed to appreciate that application under O.VII R.11, C.P.C., was rejected by the Trial Court for non-prosecution and the documents filed in support thereof were not looked into by the Trial Court either or held to be true or even confronted to the appellant to see his response, thus, presuming those documents to be genuine for determining limitation of filing the suit without an opportunity to the appellant to give his point of view or contradict them was apparently an illegality and at best a result of hypothesis

Findings of the Appellate court in respect of certified copies of documents produced by the appellant to establish his title on the property were cursory in manner

Court was not supposed to dismiss the matter on technicalities by considering some omission which was curable by a simple exercise of jurisdiction by it, as it was empowered to call the relevant officials and examine them for determining genuineness of the document produced by the appellant in support of his case particularly when it was a registered document

Court could not proceed in void by referring to the relevant articles of Qanun-e-Shahadat to affirm that its requirement had not been met and which had rendered the appellant's claim baseless especially when it was within jurisdiction of the court to rectify such omission and call relevant officials to decide the controversy once and for all; it should not choose to let the controversy simmer, and stay a bone of contention between the parties forever

Second appeal was allowed, in circumstances.

Concurrent findings recorded by the courts below are not considered sacrosanct, if the record show that such findings are based on either misappreciation of evidence or on some material which is extraneous or the law has been misapplied, the same can be set-aside and either the case can be decided on merits or if there is some lacuna that has distracted the courts below to come to a just conclusion, by remanding the case to the original court to decide it afresh in view of the guiding principles laid down by the superior courts in that regard.

Filing of written application against the dumped imports causing material injury to the domestic industry producing Duplex Board

Thorough investigation by the National Tariff Commission (Commission) fulfilling all codal formalities

Final determination and imposition of definitive anti-dumping duty

First appeal was preferred by the applicant before Anti-Dumping Appellate Tribunal, which was dismissed

Contentions of the appellant was that before final determination of imposition of Definitive Anti-dumping Duty other factors of causing injury to the domestic industry were not considered by the Commission and that the final determination taken by the Commission was not within the prescribed time limit

Validity

All the relevant factors were taken into consideration by the Commission before determining the injury to the domestic industry due to the dumped imports

Preliminary determination in terms of S. 37 of the Anti-Dumping Duties Act, 2015, was made by the Commission on 11.05.2017, whereas, the final determination was made on 27.07.2017, thus, the final determination was made within 180 days of the preliminary determination

Section 70(13) of the Anti-Dumping Duties Act, 2015 makes the appellate decision of the Appellate Tribunal appealable to the High Court, which is to entertain the appeal under the said section within the limits prescribed by S. 100, C.P.C., and it is not open to the parties to demand re-appraisal of the evidence by the High Court

There was absolutely no question of law involved in the second appeal for High Court to interfere with the concurrent findings of fact arrived at by the Commission and the Appellate Tribunal on the proper appreciation of the material on the record

Appeal was dismissed, in circumstances.

Appellant / Stock Exchange broker was alleged to have illegally and without authority transferred shares of respondent / complainant as reflected in trading record maintained with Central Depository Company (C.D.C.)

Order passed by Director Securities Market Division of SECP (S.M.D.) was upheld by Appellate Bench of SECP

Validity

It was for appellant / broker to establish in terms of S. 100(1), C.P.C. that decision in question was contrary to law, or order assailed had failed to determine a material issue of law or suffered from substantial procedural defect affecting decision of the case in terms of Ss. 100(1) (a)(b) and (c), C.P.C., for High Court to interfere with concurrent factual findings rendered by SECP and Appellate Bench of SECP

Appellant / broker failed to make out case that factual findings as rendered by Director SMD and Appellate Bench SECP suffered from any such defects or infirmities

Provision of S. 16 of Securities and Exchange Ordinance, 1969 was applicable to the dispute and had barred, in terms of S. 16(a) of Securities and Exchange Ordinance, 1969 a member from extending credit to any person for purposes of purchasing any security

Provision of S.4(3) of Central Depositories Act, 1997 merely provided that a stock broker with written authorization of his client could enter securities beneficially owned by such client in his own account without establishing a sub-account in the name of such client

High Court declined to interfere in concurrent findings of two fora below which did not suffer from any infirmity

Second appeal was dismissed, in circumstances.

Only question of facts were involved in the present second appeal which had concurrently been decided by both the Courts below

Concurrent findings of facts cannot be reversed in the second appeal unless some apparent misreading, non-reading of evidence has been spotted by the appellant or flagrant violation of any statutory law has been committed by the Courts below

No misreading and non-reading of evidence or violation of any settled law had been noticed in the impugned judgments passed by both the Courts below

Second appeal filed by plaintiffs, being merit-less, was dismissed, in circumstance.

Concurrent findings of facts cannot be disturbed in second appeal until and unless any misreading, non-reading of evidence or violation of any law is pointed out.

Trial Court dismissed the suit filed by predecessor of appellants for want of proof, whereas it decreed the counter suit filed by the respondents, and the District/Appellate Court concurred with the findings of the Trial Court

Validity

Question whether the plaintiff now survived by appellants herein was the owner of land or whether the suit land was in the ownership of respondents, was a pure question of facts and both the Courts below had concurrently decided the same

Thus, the concurrent findings of facts could not be disturbed in Second Appeal unless some flagrant misreading, non-reading of evidence or violation of any settled law was pointed out

Appellants had failed to point out apparent violation of any settled law by the Courts below while passing the impugned concurrent judgments, thus the impugned judgment and decrees deserved to be maintained

No illegality or infirmity having been noticed in the impugned judgments and decrees, Regular Second Appeal was dismissed, in circumstances.

Concurrent findings of fact could not be disturbed unless and until it is specifically pointed out by the appellants (litigant party), that which part of evidence, oral or documentary, or which evidence as a whole was misread and non-read

A general allegation of misreading or non-reading of evidence would not render the concurrent findings of fact open to challenge

It is necessary for the party to specifically point out the witnesses whose statements were misread

Concurrent findings of fact will not be disturbed in second appeal even if the Court disagrees with that findings on its own view of the evidence

Mere erroneous findings will not suffice to reverse the same when concurrence of two Courts is found, that too, in the course of appraisal of the evidence.

High Court under the sphere of Section 100, C.P.C., can take cognizance of a substantial question of law rather than triggering interference on a pure question of fact

Court should also formulate the question of law to meet the requirements of Order XLI, Rule 31, C.P.C.

In a Second Appeal provided under Section 100, C.P.C the High Court cannot interfere with the findings of fact recorded by the first Appellate Court, rather the jurisdiction is relatively delineated to the questions of law which is sine qua non for exercising the jurisdiction under Section 100, C.P.C.

High Court has the powers to reevaluate the concurrent findings of fact arrived at by the lower courts in appropriate cases but cannot upset such crystalized findings if the same are based on relevant evidence or without any misreading or non-reading of evidence

If the facts have been justly tried by two courts and the same conclusion has been reached by both the courts concurrently then it would not be judicious to revisit it for drawing some other conclusion or interpretation of evidence in a second appeal under Section 100 or under revisional jurisdiction under Section 115, C.P.C., because any such attempt would also be against the doctrine of finality.

Appellant/plaintiff claimed to be owner of suit property purchased in the name of her son as Benamidar, who sold the property to respondent/defendant

Both the Court below concurrently dismissed suit and appeal filed by appellant/ plaintiff

Validity

Stances in pleadings and evidence of suits filed by appellant/ plaintiff and respondent/defendant were in many-fold varying from stances in suit filed by son of appellant/plaintiff

In order to maintain possession over suit property appellant/plaintiff and her son were not reluctant even to mislead the Courts and they had remained successful in such design for 25 years

Miseries of execution were yet to start

Witnesses of appellant/plaintiff and her son were untruthful, who had been jumping from one stance to another and by giving implausible as well as self-contradictory statements, lost credibility and on the basis of such evidence any finding in their favour would be unsafe

Decisions of two Courts below, were not found against any law or usage having force of law or defective in any manner, which was essential to successfully maintain regular second appeal, under S. 100, C.P.C.

Not only was the conduct of son of appellant/plaintiff unconscionable, who maintained two different stances in two suits, disentitling him from equitable relief but at the same time his case was barred by limitation

High Court declined to interfere in judgments and decrees passed by two Courts below

Second appeal was dismissed accordingly.

Suit for specific performance of agreement to sell was filed by appellant/plaintiff and the same was dismissed concurrently by Trial Court and Lower Appellant Court

Plea raised by appellant/plaintiff was that Lower Appellant Court dismissed his application to adduce additional evidence

Validity

Each of the documents referred to in the application were available with appellant/plaintiff at the time of adducing evidence before Trial Court

Failure on the part of appellant/plaintiff to adduce evidence of attesting witnesses to Sale Agreement or Supplementary Agreement could only be attributed to appellant/plaintiff's own negligence

Evidence if adduced would be filling a lacuna in the evidence of appellant/plaintiff that he failed to adduce in evidence during trial

Lower Appellate Court correctly refused to adduce such evidence

There was no infirmity or illegality in either of the judgments passed by Trial Court as well as Lowe Appellate Court

Second Appeal was dismissed, in circumstances.

For purposes of O.VII, R.11, C.P.C, sole prerequisite was that Court, prior to rendering a judgment must analyze averments made in plaint

Through a requisite implication, it was evident that contents of written statement are not to be examined and put to juxtaposition with plaint to ascertain veracity or fallacy of the plaint's averments in which was expressly precluded

Court was not tasked with adjudicating correctness of plaint or written statement

Scope of section 100 C.P.C. was limited to appeals involving substantial questions of law rather than pure questions of facts

In second appeal it was essential to formulate questions of law which were inherent to the jurisdiction

In order to avoid unfairness and make sure justice was done, the ability to appeal had brought up the idea of highlighting two or even three layers of checks and balances

There was a clear difference between two appellate jurisdictions

First granted by S.96 C.P.C. allowed Appellate Court to consider factual issues

Second granted by S.100 C.P.C. did not allow it to interfere with factual findings recorded by first Appellate Court

Appellant / plaintiff failed to demonstrate any illegality or material irregularity in judgment / order passed by both the Courts below

Second appeal was dismissed in circumstances.

Scope of second appeal is narrow and it can be exercised only if the decision is contrary to law; there is failure to determine some material issue of law; and there is substantial error or defect in the procedure provided by the Civil Procedure Code, 1908, or law for the time being in force which may possibly have emanated an error or slip-up in the determination or decisiveness of the case on merits

To succeed in second appeal, the appellant must establish that the finding of facts arrived at by the first Appellate Court is not found to be substantiated by evidence on the record and is result of its failure in determining the material issue or that the conclusions, so drawn, are contrary to settled principles of law.

Appellants/authorities installed a well for public welfare in land granted to respondent/plaintiff in accordance with law

Respondent/ plaintiff was aggrieved of non-payment of compensation to him and suit filed by him was dismissed by Trial Court but Lower Appellate Court decreed the same

Validity

In case of continuing breach of a contract and case of an ongoing wrong independent of the contract, a fresh period of limitation begins to run at every moment of the time during which breach or wrong, as the case may be, continues

Respondent/plaintiff was entitled to receive compensation in the event of land acquired for public purposes

Land was granted to appellants/authorities for installation of a well which was inherently a public purpose

Trial Court failed to appreciate legal and factual aspects of the same and dismissed the suit of respondent/plaintiff

Lower Appellate Court after discussing facts as well as evidence of parties, including additional evidence, through a well-reasoned judgment rightly decreed the suit of respondent/plaintiff who was a lawful grantee in respect of suit land

Lower Appellate Court did not commit any illegality as the respondent/plaintiff was entitled to compensation

Where there were conflicting verdicts, decision made by Lower Appellate Court should be accorded greater deference and esteem unless it was demonstrated from available documentation that such determination lacked substantiation from evidentiary support

High Court declined to interfere in judgment and decree passed by Lower Appellate Court

Second appeal was dismissed, in circumstances.

Appellant / defendant was aggrieved of order passed by Lower Appellate Court setting aside additional amount of consideration imposed by Trial Court in decree passed in favour of respondent / plaintiff

Validity

Second appeal does not ordinarily disturb findings of fact supported by evidence on record

High Court may remit to examine whether there exists proper material to support the findings under S. 103, C.P.C., if evidence on record is sufficient to determine any issue of fact necessary for the disposal of appeal, which has not been determined by Lower Appellate Court or which has been wrongly determined by such Court; by reason of any illegality, omission, error or defect

High Court in exercise of jurisdiction under S.100, C.P.C., declined to interfere in judgment passed by Lower Appellate Court, as the appellant / defendant failed to identify any infirmity in judgment and points framed for determination

Second appeal could only lie if a decision was demonstrated to be contrary to the law; a decision having failed to determine some material issues; and / or a substantial error in the procedure was pointed out

None of these ingredients had been identified by appellant / defendant

Even under S. 101, C.P.C., no appeal could be filed except on the grounds mentioned in S. 100, C.P.C.

Second appeal was dismissed, in circumstances.

Finding of Lower Appellate Court in its judgment about "admission" regarding payment of substantial amount of sale consideration, was a complete misreading of evidence and was illegal

If Lower Appellate Court was to disagree with findings of Trial Court, which handed down its judgment while discussing issues framed in accordance with O. XX, R. 5, C.P.C., then Lower Appellate Court [Court of Final Facts], had to do issue-wise discussion, which had not been done

At least points for consideration as required under O. XLI, R. 31, C.P.C. should have been framed for giving decision accordingly

Only a formal point for determination was framed that whether judgment of Trial Court called for interference or not

High Court set aside the judgment passed by Lower Appellate Court as it was in violation of principle settled by Supreme Court and was given in a slip shod manner, without application of judicial mind, that included, element of visible fairness in a decision

Second Appeal was allowed, in circumstances.

Second appeal is not sustainable except on any of the grounds mentioned in S. 100 of the Civil Procedure Code, 1908.

Question that whether the suit-land was sold at the consideration mentioned in the impugned sale-deed or half of said consideration as asserted by the appellant/plaintiff, was a pure question of fact, which (fact) had been decided against the appellant/plaintiff concurrently by both the Courts below

Concurrent findings of facts could not be reversed in second appeal unless flagrant mis-reading or non-reading of evidence had been pointed out by the appellant or flagrant violation of any statutory law had been committed by the Courts below

No illegality or infirmity having been noticed in the impugned judgments passed by both the Courts below, second appeal, filed by the plaintiff, was dismissed, in circumstances.

Concurrent findings of facts cannot be disturbed in second appeal unless mis-reading or non-reading of evidence is pointed out by the appellant or flagrant violation of any statutory law has been committed by the Courts below.

Scope of jurisdiction of High Court in Second Appeal under section 100, C.P.C. stated.

Where there is divergence of views in both the Courts below, ordinarily preference should be given to the judgment of first appellate Court unless it offends any law

Judgment of appellate Court cannot be interfered with unless some procedural defect materially affecting such findings is pointed out by the appellant

There is a marked distinction between the revisional jurisdiction and appellate jurisdiction in terms of S.100 of C.P.C.

Where judgments of Courts below were at variance and High Court was hearing second appeal, preference should be given to judgment of Lower Appellate Court

Such principle of law does not entail its universal application and is not an impregnable and invariable rule of law

Finding of Lower Appellate Court is immune from interference in second appeal if the same is supported and substantiated by logical reasoning and proper appreciation of evidence and is not result of misreading and/or non-reading of evidence

Where findings of Lower Appellate Court are at variance with that of Trial Court, the two will come in for comparison of their merits in light of the facts of the case and the reasons of which the two different and contradictory, if not opposing, findings are respectively proceeded

If judgment of Lower Appellate Court is arbitrary or capricious, it can be rejected

Lower Appellate Court had gone against the weight of available evidence in holding that execution of agreement was not proved although plaintiffs/appellants were steadfast, consistent and unwavering in their stance not only in their pleadings about execution of agreement and receipt but also in their deposition and cross-examination

On the contrary, defendants/respondents did not put any serious challenge to version of plaintiff's witnesses and had made evasive denial of execution of agreement leading to improvement of case through recording evidence beyond pleadings vacillating from one position to another without being able to substantiate either

High Court set aside judgment and decree passed by Lower Appellate Court and restored that of Trial Court

Second appeal was allowed, in circumstances.

Second appeal is restricted, yet could be exercised if findings of fact arrived at by Courts below are found to be based upon misreading, non-reading or misinterpretation of the evidence on record

When only available evidence was not appreciated in its true perspective, rather law on the subject was ignored case of appellants fully fell within exceptions of S. 100, C.P.C.

When the position is such, the High Court is vested with authority to set aside such concurrent findings.

Held, that there was no impartial evidence of any witness of the appellant, sale consideration was not proved and substantial portion of sale consideration was claimed to have been paid in cash, whereas, only meager amount was shown to have been deposited in the accounts of respondents, which in fact was deposited towards part of rent outstanding

In the case in hand, the evidence was unsatisfactory as found by the two Courts below and not convincing

Appeal filed by appellant was allowed setting aside the judgment of appellate court to the extent of mesne profit and possession of rented premises, and appeal filed by respondents was dismissed.

Second appeal can be filed only on question of law or on question of mis-reading or nonreading of evidence or when decision of courts below was contrary to law or usage having force of law; or when some material issue of law had not been decided and when there was substantial error or procedural defect which had resulted in erroneous or defective decision.

Appellant /defendant was aggrieved of judgments and decrees passed by two Courts below in favour of respondent / plaintiff

Validity

Decisions of Courts below were neither contrary to law nor any usage having force of law

Both the Courts in their judgments did not omit to decide "some material issue of law or usage having the force of law"

Not all instances of a Court's failure to decide an issue could suffer for the purpose of allowing an appeal

Only a failure to decide material issues existed which could enable an aggrieved party to invoke jurisdiction of an appellate Court

Question of materiality of an issue depended upon whether ultimate decision of Lower Appellate Court would have been different, if omitted issue was determined by it

In order to succeed in second appeal on ground mentioned in S.100 (1)(b), C.P.C., an appellant was to show that Lower Appellate Court would have reached a different conclusion, had it not failed to decide issue of law or usage specified in ground so mentioned

For consideration of ground mentioned in S.100(1)(c), C.P.C., it required an appeal, to show firstly that there was a substantial error or defect in procedure and secondly that such substantial error could have resulted in erroneous or defective decision of the case

High Court declined to interfere in judgments and decrees passed by two Courts below as no such substantial error had arisen

Second appeal was dismissed, in circumstances.

If the finding of fact reached by the first appellate court is at variance with that of Trial Court, such a finding by the lower appellate court will be immune from interference in second appeal only if it is found to be substantiated by evidence on the record and is supported by logical reasoning, duly taking note of the reasons adduced by the first court which have been disfavored in the contrary finding

Interference would be justified if the decision of the lower courts is found to be contrary to law or some usage having the force of law has failed to determine some material issue of law.

Scope of jurisdiction of High Courts in second appeal under section 100, C.P.C. and of the expression "contrary to law" used therein stated.

High Court normally does not interfere in second appeal under S. 100 of C.P.C., unless the decision of courts below is contrary to law or is based on failure to determine material issue of law

However, once the High Court entertains a second appeal, it can determine an issue of fact provided the conditions mentioned in S. 103, C.P.C. are fulfilled as the concurrent findings of facts recorded by the courts below cannot become sacrosanct.

No sanctity is attached to concurrent findings of the lower Courts suffering from perversity, misreading and non-reading of evidence as well as being against the law.

Scope of interference in second appeal is narrower and restricted, which can only be invoked where some gross illegality appears to have been committed by the Courts below or evidence was not perused in its true perspective.

High Court had ample power to undo the concurrent findings recorded by Courts below in exercise of appellate jurisdiction.

Scope of the second appeal is narrow and it can be exercised only if findings of fact arrived by Courts below are based upon misreading, non-reading or misinterpretation of the evidence on record.

Appellant/plaintiff sought declaration to the extent of her property which she was enjoying as an owner and if any right out of a property, as enjoyed by appellant/plaintiff was infringed, provisions of S.42 of Specific Relief Act, 1877, would come into action for her safeguards

Person entitled to any legal character or to a right as to any property could institute a suit

Plaint could be rejected under O.VII, R.11 C.P.C., if it was barred by law

None of the provisions of law was cited by respondent/defendant nor was mentioned in the orders/judgments of two Courts below whereby plaint of appellant/plaintiff could be rejected under O.VII, R.11, C.P.C.

Appellant/plaintiff had a cause of action on account of a threat to her property in view of alleged unlawful and illegal construction which was being raised on adjacent plot

High Court set aside concurrent orders/judgments passed by two Courts below and case was remanded to Trial Court for decision on merits

Second appeal was allowed, in circumstances.