First Appellate Court is the last court of ‘facts’
Under Sec.96 of the Civil Procedure Code the first appellate court is the last court of ‘facts’.
Under Sec.100 of CPC, the High Court in second appeal, cannot interfere with the ‘findings of fact’ recorded by the first appellate court under Sec.96 of CPC.
No doubt the ‘finding 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.
In Gurvachan Kaur case the Supreme Court held that —
“It is settled law that in exercise of power under Sec.100 of CPC, 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.”
In Kulwant Kaur case the Supreme Court held that —
“Admittedly, Sec.100 of CPC 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 stated 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-a-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.”
Sec.103 of CPC which reads as follows:
“103: 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
(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 Sec.100.”
The requirements stated specified in Sec.103 and nothing short of it will bring it within the ambit of Sec.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.