Landmark Supreme Court Judgment on powers and duties of first appellate court while deciding first appeal

  The first appellate Court has, in a very cryptic manner, reversed the finding on question of possession and dispossession as alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. The task of an appellate Court affirming the findings of the trial Court is an easier one. The appellate Court agreeing with the view of the trial Court need not restate the effect of the evidence or reiterate the reasons given by the trial Court; expression of general agreement with reasons given by the Court, decision of which is under appeal, would ordinarily suffice (See Girijanandini Devi & Ors. Vs. Bijendra Narain Choudhary MANU/SC/0287/1966 : [1967]1SCR93 : [1967]1SCR93 ). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate Court for shirking the duty cast on it. While writing a judgment of reversal the appellate Court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial Court must weigh with the appellate Court, more so when the findings are based on oral evidence recorded by the same presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate Court is entitled to interfere with the finding of fact (SeeMadhusudan Das Vs. Smt. Narayani Bai & Ors. MANU/SC/0147/1982 : [1983]1SCR851 : [1983]1SCR851 ). The rule is -- and it is nothing more than a rule of practice -- that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the finding of the trial Judge on a question of fact.(See Sarju Pershad Ramdeo Sahu Vs. Jwaleshwari Pratap Narain Singh & Ors. MANU/SC/0002/1950 : [1950]1SCR781 : [1950]1SCR781 ). Secondly, while reversing a finding of fact the appellate Court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the first appellate Court had discharged the duty expected of it. We need only remind the first appellate Courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate Court continues, as before, to be a final Court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate Court is also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate Court even on questions of law unless such question of law be a substantial one.

IN THE SUPREME COURT OF INDIA

C.A. No. 1117 of 2001

Decided On: 08.02.2001

Santosh Hazari vs. Purushottam Tiwai (Dead) by L.Rs.

Coram:

Dr. A.S. Anand, C.J., R.C. Lahoti and Brijesh Kumar, JJ.

Citation:(2001) 3 SCC 179.

Read full Judgment here: Click here.

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Would Benami Prohibition Act hit the transaction if the sale deed was taken in the name of a few persons even though more persons contributed money?

 This takes me to consider the next question with regard to the benami transaction. The suit property was admittedly purchased by 11 persons by equally contributing towards consideration but sale deed was taken in the name of 5 persons only. It is therefore clear that those persons in whose favour the sale deed was executed had contributed towards consideration. It is not that plaintiffs alone paid the consideration but obtained the sale deed in defendants name. Essential ingredient of benami transaction is that the real owner must contribute the entire consideration. It was a simple case of obtaining the sale deed in the name of few though large members have contributed. Parties always intended that each one of the contributor would be joint owner to the equal extent. That is so evident from agreement Ex. 42. Further defendants had not raised a plea of benami at all in their pleadings. In the absence of such a plea being raised no issue in fact could arise. In a decision reported in Heirs of Vrajlal J. Ganatra v. Heirs of Parshottam S. Shah MANU/SC/1161/1996 : Judgment Today 1996 (4) S.C. 725, Supreme Court holds that the question whether sale is benami or not is a question of fact. If it is question of fact then such a question cannot be raised for the first time in Second Appeal. Further if the grounds of appeal before the District Court are seen it would be clear that in those grounds of appeal such a plea was not at all raised. Learned Judge of the First Appellate Court therefore had erred in holding the transaction to be a benami transaction and dismissing the suit. {Para 11}

 IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 448 of 1996

Decided On: 07.10.2009

Shrikant Gopalkrushna Tare and Ors.  Vs.  Vasant Nagorao Mahalley and Ors.

Hon'ble Judges/Coram:

C.L. Pangarkar, J.

Citation: MANU/MH/1151/2009,2010(1) ALLMR 114.

Read full Judgment here: Click here

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Whether the question of fact can be raised for the first time in second appeal?

 Further defendants had not raised a plea of benami at all in their pleadings. In the absence of such a plea being raised no issue in fact could arise. In a decision reported in Heirs of Vrajlal J. Ganatra v. Heirs of Parshottam S. Shah MANU/SC/1161/1996 : Judgment Today 1996 (4) S.C. 725, Supreme Court holds that the question whether sale is benami or not is a question of fact. If it is question of fact then such a question cannot be raised for the first time in Second Appeal. Further if the grounds of appeal before the District Court are seen it would be clear that in those grounds of appeal such a plea was not at all raised. Learned Judge of the First Appellate Court therefore had erred in holding the transaction to be a benami transaction and dismissing the suit.

{Para 11}

 IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 448 of 1996

Decided On: 07.10.2009

Shrikant Gopalkrushna Tare and Ors.  Vs.  Vasant Nagorao Mahalley and Ors.

Hon'ble Judges/Coram:

C.L. Pangarkar, J.

Citation: MANU/MH/1151/2009,2010(1) ALLMR 114.

Read full Judgment here: Click here

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Whether a party can raise the questions of fact and law in Municipal Appeal?

  We may also clarify that the proceedings before the Chief Judge are proceedings not of the original nature but are of appellate jurisdiction. The original proceedings are passed by the Assessing Officer. Against those original proceedings, an appeal in terms of Section 217 of the Act has been provided to the Chief Judge. This being an appellate proceedings, parties are at liberty to raise the questions of fact and law both before the Chief Judge. The Supreme Court in the case of Municipal Corporation of Brihanmumbai and another Vs. State Bank of India, (1999)1 SCC 123 : [1999(1) ALL MR 246 (S.C.)], has specifically stated that nature of proceedings under Section 217(1) are appellate proceedings.{Para 29}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

SWATANTER KUMAR AND D.Y. CHANDRACHUD, JJ.

Peninsula Land Ltd.Vs.Brihan Mumbai Mahanagarpalika & Ors.

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Whether offence of dishonour of cheque is made out even if drawer of cheque has changed date of cheque to revalidate it?

 In our view this reasoning is entirely fallacious. There is no provision in the Negotiable Instruments Act or in any other law which stipulates that a drawer of a negotiable instrument cannot re-validate it. It is always open to a drawer to voluntarily revalidate a negotiable instrument, including a cheque. The High Court has also placed reliance on Section 87 of the Negotiable Instruments Act, which reads as follows:

87. Effect of material alteration -- Any material alteration of a negotiable instrument renders the same void as against any one who is a party thereto at the time of making such alteration and does not consent thereto, unless it was made in order to carry out the common intention of the original parties;

Alteration by indorsee -- Any such alteration, if made by an indorsee, discharges his endorser from all liability to him in respect of the consideration thereof.

The provisions of this section are subject to those of Sections 20, 49, 86 and 125". The first paragraph of Section 87 makes it clear that the party who consents to the alteration as well as the party who made the alteration are disentitled to complain against such alteration, e.g. if the drawer of the cheque himself altered the cheque for validating or revalidating the same instrument he cannot take advantage of it later by saying that the cheque became void as there is material alteration thereto.Further, even if the payee or the holder of the cheque made the alteration with the consent of the drawer thereof, such alteration also cannot be used as a ground to resist the right of the payee or the holder thereof. It is always a question of fact whether the alteration was made by the drawer himself or whether it was made with the consent of the drawer. It requires evidence to prove the aforesaid question whenever it is disputed.

It is held by the High Court that a change of date is a material alteration which affected the interests of the Respondent. It is held that the Respondent not being a willing party to the said alteration, the cheques were void as contemplated by Section 87 of the Negotiable Instruments Act. At this stage there is no basis for arriving at such a conclusion. In the earlier part of the impugned Judgment it has been correctly held that this is a question of fact. This is a fact which will have to be established on evidence during trial. At this stage the High Court could not have quashed the complaint merely on the basis of an assertion in the reply.

IN THE SUPREME COURT OF INDIA

Crl. A. Nos. 1110-1111 of 2001

Decided On: 02.11.2001

Veera Exports  Vs.  T. Kalavathy

Hon'ble Judges/Coram: 

K.T. Thomas and S.N. Variava, JJ.

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Whether grand son can be legal heir of defendant if his sons are alive?

 As far as the necessity of appointing the guardian ad litem for minor defendants is concerned, as held in Ram Chandra Vs. Man Singh MANU/SC/0352/1967 : AIR 1968 SC 954, decree passed against a minor without appointment of guardian is nullity and void. But in the present case it is found that the minor heirs were not at all legal heirs of deceased Dhavji. The Sale Deed and agreement to sell were executed by Dhavji. On his death his class-I heirs would be legal heirs. He was survived by two sons Baban and Sabaji and one daughter Muktabai defendant Nos. 1 to 3. They are the respondents. Defendants 4,5,6,7,8 and 9 are grandsons of Dhavji and sons of either defendant No. 2-Baban Dhavji or defendant No. 3-Sabaji Dhavji. It cannot be disputed that when the sons are alive the grandsons cannot be the class one legal heirs of the deceased. It was a mistake to include defendant Nos. 4 to 9 in the suit and their presence was not at all essential and therefore, it is not relevant whether guardian ad-litem was appointed or not for defendant Nos. 8 and 9 who were minor. Hence, non appointment of guardian ad-litem will not affect the judgment and decree passed by first Appellate Court. 

IN THE HIGH COURT OF BOMBAY

Second Appeal Nos. 165, 152 of 2016, Civil Application Nos. 276 and 361 of 2016

Decided On: 24.08.2018

Sabaji Dhavji Dhore Vs. Baburao Raghuji Kare

Hon'ble Judges/Coram:

A.M. Dhavale, J.

Citation: 2019(1) MHLJ 183

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Whether court should permit parties to adduce evidence if there is allegation that mediation settlement was obtained by force?

 Learned counsel for respondents had submitted that although signatures of authorized representative of respondent on the mediated settlement are not denied but he had no instructions to agree to the terms of the settlement as reflected in the mediated settlement. It was also submitted on behalf of respondents that signatures of authorized representative of respondent were obtained forcibly and so aforesaid settlement is not binding upon the parties and the parties have been rightly referred to mediation again vide impugned order. Thus, it was submitted that there is no illegality in the impugned order and the decisions cited are distinguishable.

Since, question of fact are being raised regarding voluntariness of the mediated settlement, therefore, it would be appropriate that an opportunity is granted by trial court to respondents to lead evidence to show that the mediated settlement was not a voluntary one.

IN THE HIGH COURT OF DELHI

Crl. M.C. No. 2498/2014, 

Decided On: 09.02.2015

 Manoj Chandak Vs. Tour Lovers Tourism (India) Pvt. Ltd. and Ors.

Hon'ble Judges/Coram:

Sunil Gaur, J.

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How to ascertain dominant or primary use of tenanted premises in case of composite use?

At this stage the counsel on either side addressed me on the wording of the two relevant sub-clauses of Section 13(1). Section 13(1)(a) provides a ground for eviction when the tenant commits an act contrary to the provisions of Clause (o) of Section 108 of the Transfer of Property Act. Clause (o) of Section 108 of the Transfer of Property Act in so far as is relevant requires the lessee not to use or permit another to use the property for a purpose other than that for which it was leased. Turning toSection 13(1) of the Rent Act, it is evident that the tenant can be evicted when the premises have not been used for the purpose for which they were let. It is true that to a certain extent the two clauses over-lap each other. Both speak of change of use. Section 13(1) has a wider connotation and covers not only positive but also negative aspect. When it is a case of mere failure to use or change of use then the tenant cannot be evicted, if he pleads and, establishes that he had a reasonable cause for the failure to use or change of use. There may be cases where even under Section 13(1) the premises are used wholly for a purpose for which they were not let. In such a case the Court will not find any difficulty in passing a decree in ejectment. But in the present case the premises are put to an additional or a different use and they are still used for the purpose for which they were let. In other words, it is a case of composite use. Whether the case falls within the ambit of Section 13(1)(a) or under Section 13(1)the Court will have to consider the dominant or primary use to find out whether there is a change of use so as to attract the provisions of either of the two sub-clauses.

20. As stated above, the wording of the two clauses of the sub-section provide no guidelines. But the object of the Rent Act is to protect tenants against indiscriminate eviction by landlords. Whenever the landlord complains that the tenant has changed the use of the premises, then the Courts must find out in the first instance the original purpose for which the premises are let. If the tenant is found to use the premises for an additional purpose or a purpose different from the purpose for which the premises were let, then it must be found as a fact in every case as to what is the dominant or primary use of the premises vis-a-vis the purpose of letting. It will be a question of fact to be decided in each particular case having regard to all the circumstances. It is not possible to give a list of all the relevant factors but Courts must bear in mind that the Rent Act is enacted primarily for protecting tenants against indiscriminate eviction. The tenants have no such protection under the general law which applies to all leases. It may be that a landlord has rushed to the Court on flimsy or superficial grounds. Or it may be that a tenant in a given case is trying to exploit the situation. In all such cases the Courts have to record a finding about the dominant or primary use of the premises vis-a-vis the purpose of letting. Some times the extent or mode of use may be a relevant factor. But it is difficult to lay down any definite objective test in this behalf.

Bombay High Court

Babhutmal Raichand Oswal vs Laxmibai Raghunath Tarte on 19 November, 1971

Equivalent citations: (1972) 74 BOMLR 214,1972 MHLJ 382

Bench: Bhasme

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Whether lease deed signed by one party is valid?

A close reading of the third paragraph indicates that there is no stipulation that the instrument must be signed by both parties. The requirement is that when the lease is made by a registered instrument, "such instrument shall be executed by both the lessor and lessee." What is underlined in it is that the creation of a lease is not a unilateral exercise of one of the parties but a bilateral endeavour of both the lessor and the lessee.

11. The word "execute" is given the meaning in Black's Law Dictionary as "to complete; to make; to sign; to perform; to do; to follow out; to carry out according to its terms; to fulfil the command or purpose of." In "Words and Phrases" (Permanent Edition) the word "execute" is given the meaning as "to complete as a legal instrument; to perform what is required to give validity to." An instrument is usually executed through multifarious steps of different sequences. At the first instance, the parties might deliberate upon the terms and reach an agreement. Next the terms so agreed upon would be reduced to writing. Sometimes one party alone would affix the signature on it and deliver it to the other party. Sometimes both parties would affix their signature on the instrument. If the document is required by law to be registered, both parties can be involved in the process without perhaps obtaining the signatures of one of them. In all such instances the instrument can be said to have been executed by both parties thereto. If the instrument is signed by both parties it is presumptive of the fact that both of them have executed it, of course it is only rebuttable presumption. Similarly if an instrument is signed by only one party it does not mean that both parties have not executed it together. Whether both parties have executed the instrument will be a question of fact to be determined on evidence if such a determination is warranted from the pleadings of the particular suit. Merely because the document shows only the signature of one of the parties it is not enough to conclude that the non-signing party has not joined in the execution of the instrument.

IN THE SUPREME COURT OF INDIA

S.L.P. (C) No. 15042 of 1998

Decided On: 28.10.1998

 Rajendra Pratap Singh Vs.  Rameshwar Prasad

Hon'ble Judges/Coram:

Saiyed Saghir Ahmad and K.T. Thomas, JJ.

Citation:1998 (7) SCC 602

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Whether plea of blending can be considered at appellate stage without pleading?

The alternative submission of learned counsel for the appellant is that the plaintiff along with the parents and defendant were staying in the suit house. The plaintiff by his conduct had allowed blending of the property in question and thrown to the same joint family stock. The suit property became a joint family property of the parties. He cited decision in the case of Mallesappa Bandeppa Desai and another vs. Desai Mallappa alias Mallesappa and another, AIR 1961 SC 1268, Smt. Pushpa Devi vs. The Commissioner of Income-tax, New Delhi, AIR 1977 SC 2230, Anathula Sudhakar vs. P. Buchi Reddy (Dead) By L.Rs. and others, AIR 2008 SC 2033, Bancha Bhol and others vs. Saria Bewa and others, AIR 1973 Ori.18, Babaji Dehuri and others vs. Biranchi Ananta and others, 1996 (I) OLR-451.
The plea of doctrine of blending is essentially a question of fact. In the absence of factual foundation and evidence, the same cannot be gone into in second appellate stage.There is no foundational fact with regard to blending of the property by the plaintiff. Thus, the plea of doctrine of blending cannot be accepted at the second appellate stage.

Orissa High Court

Hadibandhu Patnaik vs Giridhari Patnaik Since Dead ... on 6 November, 2017

P R E S E N T:

 DR. JUSTICE A.K. RATH

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Whether concession by counsel on question of fact is binding on client?

It is also clear that the High Court has recorded in the impugned judgment dated 03.03.2009 that the counsel agreed with instructions from the plaintiff and reiterated this fact in its order dated 28.08.2009 in Misc. Civil No. 13474 of 2009 in the above-mentioned RFA while rejecting the plea of the counsel for the appellant herein that he did not give consent that he had no instructions from his clients A concession made by a counsel on a question of fact is binding on the client, but if it is on a question of law, it is not binding.
Reportable

Supreme Court of India

Vimleshwar Nagappa Shet vs Noor Ahmad Sheriff And Ors on 11 May, 2011

Bench: P. Sathasivam, H.L. Gokhale

Citation: (2011) 12 SCC 658

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How to ascertain substantial question of law?

It is settled principle of law that second appeal under Section 100 of the Code of

Civil Procedure, 1908, cannot be admitted unless there is substantial question of law

involved in it. As to what is substantial question of law, in Kondiba Dagadu Kadam v. Savitribai Sopan Gujarl, this Court has explained the position

of law as under: (SCC pp. 725-26, para 6)

“6. If the question of law termed as a substantial question stands already decided by

a larger Bench of the High Court concerned or by the Privy Council or by the Federal

Court or by the Supreme Court, its merely wrong application on the facts of the case

would not be termed to be a substantial question of law. Where a point of law has not

been pleaded or is found to be arising between the parties in the absence of any factual

format, a litigant should not be allowed to raise that question as a substantial question

of law in second appeal. The mere appreciation of the facts, the documentary evidence

or the meaning of entries and the contents of the document cannot be held to be

raising a substantial question of law. But where it is found that the first appellate court

has assumed jurisdiction which did not vest in it, the same can be adjudicated in the

second appeal, treating it as a substantial question of law. Where the first appellate

court is shown to have exercised its discretion in a judicial manner, it cannot be termed

to be an error either of law or of procedure requiring interference in second appeal."

12. In view of the above position of law, the question formulated by the High Court in

the present case, as quoted above, cannot be termed to be a question of law, much less a

substantial question of law. The above question formulated is nothing but a question of

fact. Merely for the reason that on appreciation of evidence another view could have been

taken, it cannot be said that the High Court can assume the jurisdiction by terming such a

question as a substantial question of law.
SUPREME COURT OF INDIA
(2015) 11 Supreme Court Cases 782:(2015) 3 SCR 737

(BEFORE DIPAK MISRA AND PRAFULLA C. PANT, JJ.)

LISAMMA ANTONY AND ANOTHER 

Versus

KARTHIYAYANI AND ANOTHER 

Civil Appeals Nos. 3066-67 of 20151, decided on March 20, 2015

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Whether issue of limitation can be decided while deciding application for rejection of plaint?

In the present case, the question is about the
knowledge and starting point of limitation, which as rightly held
by the learned Trial Court, would be a disputed question of fact,
which can be gone into only at the trial. Thus, in my considered
view, no exception can be taken to the finding that the suit cannot
be dismissed at the threshold as being barred by limitation. The
point is accordingly answered in the negative.
IN THE HIGH COURT OF BOMBAY AT GOA
CIVIL REVISION APPLICATION NOS.21 and 23 of 2015
CIVIL REVISION APPLICATION NO.21 of 2015

 M/s Boshan Developers Pvt. Ltd.,

V/s
 Communidade of Bordem,

CORAM :- C. V. BHADANG, J.

Pronounced on :- 16th September, 2015
Citation: AIR 2016(NOC)263 Bom

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Whether Judgments of supreme court on question of fact can be relied as precedent?

Learned counsel for the appellant cited before us a number of reported decisions of this Court bearing on the appreciation of circumstantial evidence. We need not refer to those authorities. It is enough to say that decisions even of the highest court on questions which are essentially questions of fact, cannot be cited as precedents governing the decision of other cases which must rest in the ultimate analysis upon their own particular facts. The general principles governing appreciation of circumstantial evidence are well-established and beyond doubt or controversy. The more difficult question is one of applying those principles to the facts and circumstances of a particular case coming before the Court. That question has to be determined by the Court as and when it arises with reference to the particular facts and circumstances of that individual case. It is no use, therefore, appealing to precedents in such matters. No case on facts can be on all fours with those of another. Therefore, it will serve no useful purpose to decide this case with reference to the decisions of this Court in previous cases. We have to determine whether on the facts and circumstances disclosed in the evidence which has been accepted by the courts below, the crime charged against the appellant has been made out. 

Supreme Court of India

Prakash Chandra Pathak vs State Of Uttar Pradesh on 10 July, 1957

Equivalent citations: AIR 1960 SC 195

Bench: B Sinha, S J Imam, J Kapur

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Whether concession made by counsel on question of fact is binding on client?

 It is also clear that the High Court has recorded in the impugned judgment dated 03.03.2009 that the counsel agreed with instructions from the plaintiff and reiterated this fact in its order dated 28.08.2009 in Misc. Civil No. 13474 of 2009 in the above-mentioned RFA while rejecting the plea of the counsel for the appellant herein that he did not give consent that he had no instructions from his clients A concession made by a counsel on a question of fact is binding on the client, but if it is on a question of law, it is not binding. [vide:

Nedunuri Kameswaramma vs Sampati Subba Rao & Anr.1

Supreme Court of India

Vimleshwar Nagappa Shet vs Noor Ahmad Sheriff And Ors on 11 May, 2011

Bench: P. Sathasivam, H.L. Gokhale

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Whether plea of limitation can be decided as per principle of law divorced from facts?

Mr. Nariman, learned senior counsel appearing for the
appellant put heavy reliance on the decision in the case of
Ramesh B. Desai vs. Bipin Vadilal Mehta, (2006) 5 SCC
638, for the proposition that a plea of limitation cannot be
decided as an abstract principle of law divorced from facts
as in every case the starting point of limitation has to be
ascertained which is entirely a question of fact.
A plea of
limitation is a mixed question of law and fact.
In our
considered opinion, in the aforesaid decision this Court was
considering the provision of Order XIV Rule 2, CPC.
While
interpreting the provision of Order XIV Rule 2, this Court was
of the view that the issue on limitation, being a mixed
question of law and fact is to be decided along with other

issues as contemplated under Order XIV, Rule 2, CPC.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 7732 of 2011
Foreshore Co-operative Housing Society Limited

versus
Praveen D.Desai (Dead) thr. Lrs. and others

Citation;2015(3) MHLJ 315 SC

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Whether foreign law is a question of fact?

 It is the pleaded case of the appellant that its legal
obligation as transporter ends on its delivering the goods
entrusted to it at Benapole Customs station. Unloading of
imported goods at any customs station in this country is also
regulated by the provisions of the Customs Act, 1962. We are

sure that it must be equally regulated by the law of
Bangladesh. What exactly the law of Bangladesh is in this
regard and how the factum of delivery of goods allegedly
carried and delivered by the appellant at Benapole is to be
proved are two distinct and different matters. It is a settled
principle of private international law that foreign law is always
a question of fact which is required to be pleaded and proved
by the party whose rights or obligations flow from such foreign
law. There is no pleading or proof in this regard in the instant
case.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1427 OF 2007
M/s Transport Corporation of India Ltd. 
V
M/s Ganesh Polytex Ltd. 
Citation;AIR2015SC 826
Read original judgment here; click here

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Whether question of constructive notice is a question of fact?

In Lala Nawal Kishore v. Municipal Board Agra, AIR 1943 All 115, a Full Bench of the Allahabad High Court observed:

"The question of constructive notice is a question of fact which falls to be determined on the evidence and circumstances of each case and is so far as this matter can rest upon any principle, the principle is this that intending purchasers of the property in municipal areas where the property is subject to a municipal tax which has been made a first charge on the property by statute have a constructive knowledge of the tax and of the possibility of some arrear being due and it, therefore, becomes their duty before acquiring the property to make enquiries as to the amount of tax which is due or which may be due and if they fail to make this enquiry, this failure amounts to a wilful abstention or gross negligence within the meaning of Section 3, T. P. Act, and notice must be imputed to them."

Patna High Court

Radha Rai And Anr. vs Ram Rekha Rai And Anr. on 7 February, 1963

Equivalent citations: AIR 1964 Pat 144

Coram: Ramratna Singh, J.

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Supreme Court: In exceptional circumstances second appeal can be entertained on pure question of fact

 A fact is a fact irrespective of evidence by which it is proved. The only time a question of law can arise in such a case is when it is alleged that there is no material on which the conclusion can be based or no sufficient material.

67. There is no prohibition to entertain a second appeal even on question of fact provided the Court is satisfied that the findings of the courts below were vitiated by non-consideration of relevant evidence or by showing erroneous approach to the matter and findings recorded in the court below are perverse.

Supreme Court of India

Rajasthan State Tpt Corpn. & Anr vs Bajrang Lal on 14 March, 2014

Bench: B.S. Chauhan, J. Chelameswar

REPORTABLE

Citation;2014(3) ALLMR 416 SC

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Whether execution or authorship of a document can be proved by circumstantial evidence?

Documents can be proved like any other fact by direct as well as circumstantial evidence although the circumstantial evidence must be of sufficient strength to carry conviction.

30. In - 'S. H. Jhabawala v. Emperor' AIR 1933 All 690 (D), Sulaiman C.J. at p. 704 says as follows:

...the execution or authorship of a 'document' is a question of fact and may be proved like 'any other fact. In such a case:

(a) A document may be 'proved' as defined in Section 3 when the Court considers its existence so probable that a prudent man ought, under the circumstances, to act upon the supposition that it was written by the person alleged to be its author even though no direct proof of his handwriting is given,

(b) thus a document may be proved both: (i) by the direct evidence, and (ii) by circumstantial evidence.

31. This question was considered earlier in - 'Barindra Kumar v. Emperor' 37 Cal 467 (E) where Carnduff J. held that execution and authorship of a document is a question of fact and can be proved like any other fact and that handwriting, in addition of usual methods of proof can be proved by circumstantial evidence under Section 67, Evidence Act which prescribes no particular kind of proof. Recently the aforesaid Calcutta case appears to have been followed in - 'Gover-dhan Das y. Ahmadi Begam' AIR 1953 Hyd 181 (F) by PalnitKar and Deshpande JJ. although the report mentions - 'Ashutosh v, Nalinakshya' AIR 1937 Cal 467 (G).

32. Section 3, Evidence Act gives the definition of the term 'proved' as follows:

A fact is said to be proved when, after considering the matters before it the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists." Section 67, Evidence Act lays down:

If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting.

33. Reading the two sections together it is clear that Section 67 does not lay down any specific mode of proof and circumstantial evidence, as a mode of proof of authorship or execution of documents, is not excluded.

Madhya Pradesh High Court

Krishnabiharilal vs State on 8 December, 1954

Equivalent citations: 1956 CriLJ 233

Bench: Nevaskar, Chaturvedi, A Khan

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