The High Court dismissed a petition under Article 227 challenging the denial of an injunction in a land dispute. The court held that the lower courts' finding that petitioners were out of possession based on evidence of a sale agreement was not perverse, and the High Court lacked jurisdiction to reappreciate facts under Article 227.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 30 of 2017 Date of decision: 28.11, 2017.
Sh. Vinod Kumar & Anr.
..…..Plaintiffs/Petitioners.
Versus Sh. Naveen Kumar ……Defendant/Respondent.
Coram The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1 No. For the Petitioners : Mr. Janesh Gupta, Advocate. For the Respondent : Mr. Ajay Vaidya, Advocate.
Tarlok Singh Chauhan, Judge (Oral).
This order will dispose of the petition filed by the plaintiffs-petitioners under Article 227 of the Constitution of India assailing therein the order dated 21.12.2016, passed by the learned Additional District Judge (II), Mandi, whereby he affirmed the order passed by the learned Civil Judge (Sr. Division), Mandi, thereby dismissing the application for injunction filed by the plaintiffs/petitioners.
Whether the reporters of the local papers may be allowed to see the Judgment?yes.
2
measuring 0-8-6 bighas situate in muhal Sanyarad, Tehsil Sadar, District Mandi.
I have heard learned counsel for the parties and have gone through the materials placed on record.
Hon’ble Supreme Court held as under:
3
“Unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High Court under Articles 226 and 227 of the Constitution to interfere.”
7. In Waryam Singh and another v. Amarnath and
another 1954 AIR (SC) 215 , a Constitution Bench of the Hon’ble Supreme Court has examined the scope of Article 227 of the Constitution and observed as under:-
“This power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J. in Dalmia Jain Airways Ltd. V. Sukumar Mukherjee, 1951 AIR (Cal) 193 to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors.”
8. In Mohd. Yunus v. Mohd. Mustaquim and others, 1984
AIR (SC) 38 , the Hon’ble Supreme Court held that the High Court has very limited scope under Article 227 of the Constitution and even errors of law cannot be corrected in exercise of power of judicial review while exercising such power. The powers can be used sparingly when it comes to the conclusion that the Authority/Tribunal has exceeded its jurisdiction or proceeded under erroneous presumption of jurisdiction. It was further held that High Court cannot assume unlimited prerogative to correct all species of hardship or wrong decision. For interference, there must
4
be a case of flagrant abuse of fundamental principles of law or
where order of Tribunal etc. has resulted in grave injustice.
9. In Nibaran Chandra Bag v. Mahendra Nath Chughu
1963 AIR (SC) 1895 , the Hon’ble Supreme Court held that interference under Article 227 of the Constitution, finding of facts recorded by Authority should have found to be perverse or patently erroneous and de hors factual and legal position on record.
5
power of appellate authority enabling re-appreciation of evidence. It should not alter conclusion reached by Competent Statutory Authority merely on the ground of insufficiency of evidence.
13. In Ajaib Singh v. Sirhind Co-operative Marketing cum
Processing Service Society Ltd., 1999 (6) SCC 82 , the Hon’ble Supreme Court held that there is no justification for High Court to substitute its view for the opinion of Authorities/Courts below as the same is not permissible in proceedings under Articles 226/227 of the Constitution.
14. In Mohan Amba Prasad Agnihotiri v. Bhaskar Balwant
Aheer, 2000 AIR (SC) 931 , the Hon’ble Supreme Court held that the jurisdiction of High Court under Article 227 of the Constitution is not appellate but supervisory. It cannot interfere with the finding of facts recorded by Courts below unless there is no evidence to support findings or findings are totally perverse.
the Hon’ble Supreme Court held that High Court in exercise of its extraordinary powers under Article 227 of the Constitution, cannot re-appreciate evidence nor it can substitute its subjective opinion in place of findings of Authorities below.
Maharashtra v. Milind and others 2001 (1) SCC 4; Extrella Rubber v.
6
Dass Estate (P) Ltd. (2001) 8 SCC 97’ and Omeph Mathai and others v. M Abdul Khader, (2002) 1 SCC 319 .
(52) ALL LR 707 , the Hon’ble Supreme Court held that in exercise of supervisory power under Article 227, High Court can correct errors of jurisdiction committed by Subordinate Courts. It also held that when the Subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or jurisdiction though available is being exercised in a manner not permitted by law and failure of justice or grave injustice has occasioned, Court may step into to exercise its supervisory jurisdiction. However, it was also observed that a writ of certiorari or exercise of supervisory jurisdiction is not available to correct mere errors of fact or law unless error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or disregard of provisions of law; or, a grave injustice or gross failure of justice has occasioned thereby.
Shankar Patil, 2010 (8) SCC 329 , the Hon’ble Supreme Court observed that powers of interference under Article 227 is to be kept to the minimum to ensure that wheel of justice does not come to a halt and fountain of justice remains pure and
7
unpolluted in order to maintain public confidence in functioning of Tribunals and Courts subordinate to High Court.
Poondacha and others v. K.D. Ganapathi and another, 2011 AIR (SC) 1353 , and Bandaru Satyanarayana v. Imandi Anasuya, 2011 (12) SCC 650 .
others , 2015 (3) Scale 88 , the Hon’ble Supreme Court reiterated that scope of Article 227 is different from Article 226 and the contrary view in Surya Dev Rai’s case (supra) was over-ruled.
8
(i) The error is manifest and apparent on the face of the proceedings such as when it is based on ignorance or utter disregard to the provisions of law, and to grave injustice or gross failure of justice has occasioned thereby.
(ii) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscious of the High Court dictates which too act lest gross failure of justice or grave injustice has occasioned.
9
would be noticed that learned Courts below have denied the relief of injunction primarily on the ground that the petitioners/plaintiffs had failed to prove their possession on the suit land.
State Represented by the Public Prosecutor and another (2009) 10
SCC 206 wherein it was held as under:-
“ 26. In M. S. Narayanagouda v. Girijamma & Another AIR 1977 Kar. 58, the Court observed that any order made in conscious violation of pleading and law is a perverse order. In Moffett v. Gough, (1878) 1 LR 1r 331 the Court observed that a perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. In Godfrey v. Godfrey 106 NW 814, the Court defined `perverse' as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct etc.
27. The expression "perverse" has been defined by various dictionaries in the following manner:
1. Oxford Advanced Learner's Dictionary of Current English Sixth Edition
10
PERVERSE:- Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable.
2. Longman Dictionary of Contemporary English - International Edition
PERVERSE: Deliberately departing from what is normal and reasonable.
3. The New Oxford Dictionary of English - 1998 Edition
PERVERSE: Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law.
4. New Webster's Dictionary of the English Language (Deluxe Encyclopedic Edition)
PERVERSE: Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant.
5. Stroud's Judicial Dictionary of Words & Phrases, Fourth Edition
PERVERSE: A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence.
28. In Shailendra Pratap & Another v. State of U.P. (2003) 1 SCC 761, the Court observed thus: (SCC p.766, para 8
"8…We are of the opinion that the trial court was quite justified in acquitting the appellants of the charges as the view taken by it was reasonable one and the order of acquittal cannot be said to be perverse. It is well settled that appellate court would not be justified in interfering with the order of acquittal unless the same is found to be perverse. In the present case, the High Court has
11
committed an error in interfering with the order of acquittal of the appellants recorded by the trial court as the same did not suffer from the vice of perversity."
29. In Kuldeep Singh v. The Commissioner of Police & Others (1999) 2 SCC 10, the Court while dealing with the scope of Articles 32 and 226 of the Constitution observed as under: (SCC p.14, paras 9-10)
"9. Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of "guilt" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny.
10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with."
30. The meaning of `perverse' has been examined in H. B. Gandhi, Excise and Taxation Officer-cum- Assessing Authority, Karnal & Others v. Gopi Nath & Sons & Others 1992 Supp (2) SCC 312, this Court observed as under: (SCC pp. 316-17, para 7)
"7. In the present case, the stage at and the points on which the challenge to the assessment in judicial review was raised and entertained was not appropriate. In our opinion, the High Court was in error in constituting itself into a court of appeal against the assessment. While it was open to the respondent to have raised and for the High Court to have considered whether the denial of relief under the proviso to Section 39(5) was proper or not, it was not open to the High Court re-appreciate the
12
primary or perceptive facts which were otherwise within the domain of the fact-finding authority under the statute. The question whether the transactions were or were not sales exigible to sales tax constituted an exercise in recording secondary or inferential facts based on primary facts found by the statutory authorities. But what was assailed in review was, in substance, the correctness - as distinguished from the legal permissibility - of the primary or perceptive facts themselves. It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law."
Court in RSA No.436 of 2000 , titled ‘Rubi Sood and another vs.
Major (Retd.) Vijay Kumar Sud and others , decided on 28.05.2015 in the following manner:-
“25….. A finding of fact recorded by the learned Courts below can only be said to be perverse, which has been arrived at without consideration of material evidence or such finding is based on no evidence or misreading of evidence or is grossly erroneous that, if allowed to stand, it would result in miscarriage of justice, is open to correction, because it is not treated as a finding according to law.
26. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or even the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law.
27. If the findings of the Court are based on no evidence or evidence, which is thoroughly unreliable or evidence that suffers from vice of procedural irregularity or the findings are such that no reasonable persons would have arrived at those findings, then the findings may be said to be perverse.
13
28. Further if the findings are either ipse dixit of the Court or based on conjectures and surmises, the judgment suffers from the additional infirmity of non application of mind and thus, stands vitiated.”
consideration before the Hon’ble Supreme Court in Damodar Lal
vs. Sohan Devi and others (2016) 3 SCC 78 wherein it was held as
under:-
“8. “Perversity” has been the subject matter of umpteen number of decisions of this Court. It has also been settled by several decisions of this Court that the first appellate court, under Section 96 of The Civil Procedure Code, 1908, is the last court of facts unless the findings are based on evidence or are perverse.
9. In Krishnan v. Backiam (2007) 12 SCC 190, it has been held at paragraph-11 that: (SCC pp. 192-93)
“11. It may be mentioned that the first appellate court under Section 96 CPC is the last court of facts. The High Court in second appeal under Section 100 CPC cannot interfere with the findings of fact recorded by the first appellate court under Section 96 CPC. No doubt the findings of fact of the first appellate court can be challenged in second appeal on the ground that the said findings are based on no evidence or are perverse, but even in that case a question of law has to be formulated and framed by the High Court to that effect.”
10. In Gurvachan Kaur v. Salikram (2010) 15 SCC 530, at para 10, this principle has been reiterated: (SCC p. 532)
“10. It is settled law that in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse. This being the position, it must be held that the High Court was not justified in reversing the finding of fact recorded by the first appellate court on the issues of existence of landlord-
14
tenant relationship between the plaintiff and the defendant and default committed by the latter in payment of rent.”
11. In the case before us, there is clear and cogent evidence on the side of the plaintiff/appellant that there has been structural alteration in the premises rented out to the respondents without his consent. Attempt by the respondent-defendants to establish otherwise has been found to be totally non-acceptable to the trial court as well as the first appellate court. Material alteration of a property is not a fact confined to the exclusive/and personal knowledge of the owner. It is a matter of evidence, be it from the owner himself or any other witness speaking on behalf of the plaintiff who is conversant with the facts and the situation. PW-1 is the vendor of the plaintiff, who is also his power of attorney. He has stated in unmistakable terms that there was structural alteration in violation of the rent agreement. PW-2 has also supported the case of the plaintiff. Even the witnesses on behalf of the defendant, partially admitted that the defendants had effected some structural changes.
12. Be that as it may, the question whether there is a structural alteration in a tenanted premises is not a fact limited to the personal knowledge of the owner. It can be proved by any admissible and reliable evidence. That burden has been successfully discharged by the plaintiff by examining PWs-1 and 2. The defendants could not shake that evidence. In fact, that fact is proved partially from the evidence of the defendants themselves, as an admitted fact. Hence, only the trial court came to the definite finding on structural alteration. That finding has been endorsed by the first appellate court on reappreciation of the evidence, and therefore, the High Court in second appeal was not justified in upsetting the finding which is a pure question of fact. We have no hesitation to note that both the questions of law framed by the High Court are not substantial questions of law. Even if the finding of fact is wrong, that by itself will not constitute a question of law. The wrong finding should stem out on a complete misreading of evidence
15
or it should be based only on conjectures and surmises. Safest approach on perversity is the classic approach on the reasonable man’s inference on the facts. To him, if the conclusion on the facts in evidence made by the court below is possible, there is no perversity. If not, the finding is perverse. Inadequacy of evidence or a different reading of evidence is not perversity.
13. In Kulwant Kaur v. Gurdial Singh Mann (2001) 4 SCC 262, this Court has dealt with the limited leeway available to the High Court in second appeal. To quote para 34: (SCC pp.278-79)
“34. Admittedly, Section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure (Amendment) Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-à-vis the concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication — what is required is a categorical finding on the part of the High Court as to perversity. In this context reference be had to Section 103 of the Code which reads as below:
‘103 . Power of High Court to determine issues of fact.- In
any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,—
(a) which has not been determined by the lower appellate court or by both the court of first instance and the lower appellate court, or
16
(b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in Section 100.”
The requirements stand specified in Section 103 and nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial question of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law. We reiterate however, that there must be a definite finding to that effect in the judgment of the High Court so as to make it evident that Section 100 of the Code stands complied with.”
14. In S.R. Tiwari v. Union of India (2013) 6 SCC 602, after referring to the decisions of this Court, starting with Rajinder Kumar Kindra v. Delhi Administration, (1984) 4 SCC 635, it was held at para 30: (S.R.Tewari case6, SCC p. 615)
“30. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is “against the weight of evidence”, or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. (Vide Rajinder Kumar Kindra v. Delhi Admn. [(1984) 4 SCC 635 : 1985 SCC (L&S) 131 : AIR 1984 SC 1805] , Kuldeep Singh v. Commr. of Police [(1999) 2 SCC 10 : 1999 SCC (L&S) 429 : AIR 1999 SC 677] , Gamini Bala Koteswara Rao v. State of A.P. [(2009) 10 SCC 636 : (2010) 1 SCC (Cri) 372 : AIR 2010 SC 589] and Babu v. State of Kerala[(2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179] .)”
This Court has also dealt with other aspects of perversity.
15. We do not propose to discuss other judgments, though there is plethora of settled case law on this issue. Suffice to say that the approach made by the High Court has been wholly wrong, if not, perverse. It should not have interfered with concurrent findings of the trial court and first appellate court on a pure question of fact. Their inference on facts is certainly reasonable.
17
The strained effort made by the High Court in second appeal to arrive at a different finding is wholly unwarranted apart from being impermissible under law. Therefore, we have no hesitation to allow the appeal and set aside the impugned judgment of the High Court and restore that of the trial court as confirmed by the appellate court.”
can be said to be perverse if the conclusions arrived at by the learned Courts below are contrary in evidence on record, or if the Court’s entire approach with respect to dealing with the evidence or the pleadings is found to be patently illegal, leading to the miscarriage of justice, or if its judgment is unreasonable and is based on erroneous understanding of law and of the facts of the case. A perverse finding is one which is based on no evidence or one that no reasonable person would have arrived at. Therefore, unless it is found that some relevant evidence has not been considered or that certain inadmissible material has been taken into consideration, the findings cannot be said to be perverse.
18
consideration of ` 40,000/- had delivered the possession, which prima facie establishes the possession of the respondent over the suit land.
19
established on record that pursuant to agreement to sell dated 21.04.2002 they are out of possession which stands delivered to the respondent.
matter or any other proceeding.
November 28, 2017 (Tarlok Singh Chauhan) (Sanjeev) Judge
3 issues framed by the court
Whether the High Court can interfere under Article 227 to set aside the concurrent findings of facts denying injunction on the ground that petitioners are out of possession.
Whether the finding that the respondent is in possession based on an agreement to sell constitutes a perverse finding requiring judicial intervention.
Whether an agreement to sell alone is sufficient to deny injunction relief when the seller is out of possession.
Sh. Vinod Kumar & Anr.
Sh. Naveen Kumar
Tarlok Singh Chauhan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
