Sunday, 21 February 2016

When appreciation of evidence will be perverse?

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
Citation;AIR2016 SC 262

1. The facts unfold the plight of a poor landlord languishing
in courts for over fourty years. The case gets sadder when we
note that appellant had been successful both in the trial court
and the first appellate court and the saddest part is that the
High Court in second appeal, went against him on a pure
question of fact!
2. Issue number-3 framed in Civil Regular Suit No. 191 of
1974 for eviction on the ground of unauthorised
construction/material alteration, decided on 21.12.1989 in the
Court of Munsiff, Bhilwara, Rajasthan, reads as follows:

“Whether the tenant has carried out permanent
construction on the plot thereby causing a
permanent change in the identity of the plot against
the terms of the rent agreement?”
3. Having analysed and appreciated the evidence of PWs-1
and 2 and also DWs- 1 to 4, the trial court came to the following
finding on the issue:
“Thus all the witnesses of both sides have stated that
when the plot was taken on rent, at that time, the
plot was empty. The disputed plot was taken on rent.
Later walls were constructed; sheets were put and
were taken into use as shop and godown. Even today
the plot is being used as shop and godown.”
4. Dissatisfied, the tenants took up the matter in appeal
before the Court of the Additional District Judge-I, Bhilwara,
Rajasthan in Civil Appeal No. 20 of 1999 (originally presented
before the District Judge, Bhilwara, Rajasthan on 19.01.1990
and since transferred to the Additional District Judge). In the
judgment dated 22.09.2000, the first appellate court, after reappreciating
the whole evidence, came to the conclusion that:
“... In my opinion the evidence that had been
presented before the subordinate court, the
subordinate court has not made any mistake in
coming to the conclusion that the tenant has made
structural changes in the rented accommodation. The
appellant tenant has not been able to present any
2Page 3
evidence to show that the consent of the land lord
had been taken before making structural
changes. ...”
5. On such findings, the appeal was dismissed. Thus, there
are two findings of fact against the tenants/respondents.
6. The tenants pursued the matter in Second Appeal No. 109
of 2000 before the High Court of Rajasthan which was allowed
by the impugned judgment dated 27.09.2012. The following
were the substantial questions of law framed in the second
“ (1) Whether on the facts and in the
circumstances of this case, the learned courts
below have erred in granting a decree for
eviction on the ground of material alteration
while ignoring the relevant considerations
and proceeding on irrelevant considerations.
(2) Whether on the facts of this case, the learned
courts below have erred in not drawing
adverse inference for non-appearance of the
plaintiff Damodar Lal in the witness box?”

7. The High Court, in the second appeal, came to the
conclusion that the concurrent finding on structural change, in
the absence of the statement of the plaintiff before the court,
cannot be treated to be trustworthy. The High Court went
further and held that adverse inference should have been
3Page 4
drawn for the non-appearance of the plaintiff in the witness
box, and in such circumstances, the finding on material
alteration is totally perverse. We feel it necessary to quote the
relevant portion from the impugned judgment:
“... In the considered opinion of this Court, such
finding in the statement of the plaintiff cannot be
treated to be trustworthy or in consonance with
law. The trial court was under obligation to draw
adverse inference for the non-appearance of the
plaintiff in the witness-box. On the contrary, it has
relied upon the statement of P.W.-1 Rameshwar
Lal who was the previous owner of the property
from whom the plaintiff purchased the said
Therefore, the finding arrived at by the trial
court on the issue of material alteration is totally
perverse and not based upon sound and
trustworthy evidence. The trial court has
committed gross error while not drawing adverse
inference for non-appearance of the plaintiff
Damodar Lal because he was the only witness to
prove the fact of material alteration by way of
producing documentary evidence which is the
registered sale-deed executed by Rameswhwar Lal
in favour, so also, his oral statement.”

8. And thus, the High Court allowed the second appeal and
the suit for eviction was dismissed. Aggrieved, the landlord is
before us in the civil appeal.
9. ‘Perversity’ has been the subject matter of umpteen
number of decisions of this Court. It has also been settled by
4Page 5
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
10. In Krishnan v. Backiam and another1
, it has been held
at paragraph-11 that:
“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. …”
11. In Gurvachan Kaur and others v. Salikram (Dead)
Through Lrs.2
, at paragraph-10, this principle has been
“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
(2007) 12 SCC 190
(2010) 15 SCC 530
5Page 6
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-tenant relationship between the plaintiff
and the defendant and default committed by the
latter in payment of rent.”
12. 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
defendants/respondents 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.
13. 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
re-appreciation 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
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
14. In Kulwant Kaur and others v. Gurdial Singh Mann
(Dead) by Lrs.3
, this Court has dealt with the limited leeway
available to the High Court in second appeal. To quote
“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
(2001) 4 SCC 262
8Page 9
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. 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 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.”
9Page 10
15. In S.R. Tiwari v. Union of India4
, after referring to the
decisions of this Court, starting with Rajinder Kumar Kindra
v. Delhi Administration, Through Secretary (Labour)
and others5
, it was held at paragraph-30:
“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] .)”
(2013) 6 SCC 602
(1984) 4 SCC 635
1Page 11
This Court has also dealt with other aspects of
16. 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. 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.
17. At this juncture, learned Counsel appearing for the
respondents, praying for some reasonable time to vacate,
submitted that in the nature of the timber and furniture
business carried on at the premises, they require some time to
find out alternate location/accommodation. Having regard to
the entire facts and circumstances of the case, we are of the
view that the respondents be given time up to 31st March, 2017
1Page 12
which is agreeable to the appellant as well, though reluctantly.
The respondents are directed to file the usual undertaking in
this Court and also continue to pay the use and occupation
charges at the rate of Rs.10,000/- per month. In the event of
any default or violation of the terms of undertaking, the decree
shall be executable forthwith, in addition to the liability for
contempt of court.
18. The appeal is allowed as above with costs quantified at
 (T. S. Thakur)
 (Kurian Joseph)
New Delhi;
January 5, 2016

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