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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What are necessary conditions for deciding amendment of pleading application?

 Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 C.P.C. (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 C.P.C. postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil and Ors.MANU/SC/0002/1957 : [1957]1SCR595 which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. (Also see: Gajanan Jaikishan Joshi v. Prabhakar Mohanlal KalwarMANU/SC/0188/1989 : (1990)1SCC166. {Para 15}

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2785 of 2008 

Decided On: 11.04.2008

North Eastern Railway Administration, Gorakhpur Vs Bhagwan Das (D) by Lrs.

Hon'ble Judges/Coram:

S.B. Sinha and Devinder Kumar Jain, JJ.

Author: Devinder Kumar Jain, J.

Citation: AIR 2008 SC 2139,(2008) 8 SCC 511.

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Supreme Court: First appellate court must give reasons on all issues and contentions

It is a settled position of law that an appeal is a continuation of the proceedings of the original court. Ordinarily, the appellate jurisdiction involves a re-hearing on law as well as on fact and is invoked by an aggrieved person. The first appeal is a valuable right of the Appellant and therein all questions of fact and law decided by the trial court are open for re-consideration. Therefore, the first appellate court is required to address itself to all the issues and decide the case by giving reasons. The court of first appeal must record its findings only after dealing with all issues of law as well as fact and with the evidence, oral as well as documentary, led by the parties. The judgment of the first appellate court must display conscious application of mind and record findings supported by reasons on all issues and contentions.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1485 of 2020 

Decided On: 12.02.2020

 Malluru Mallappa  Vs.   Kuruvathappa and Ors.

Hon'ble Judges/Coram:

S. Abdul Nazeer and Sanjiv Khanna, JJ.

Author:S. Abdul Nazeer, J.

Citation: (2020) 4 SCC 313,MANU/SC/0166/2020

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Whether court should entertain objection of defective verification at the stage of second appeal?

 As regards questions pertaining to the defective nature of verification appended to the plaint and the affidavit in support of the plaint and affidavits in evidence not satisfying the requirements of the Code of Civil Procedure, it is clear from the record that objections in that regard were not raised on behalf of respondent No. 1 at any stage. In this context, learned Counsel appearing on behalf of the appellant is justified in submitting that at worst these were irregularities that could have been cured, if objection in that regard had been raised on behalf of respondent No. 1 at the earliest opportunity. It was correctly submitted that the parties having gone to trial and having led evidence to prove their respective stands, at the second appellate stage, such an objection pertaining to alleged defects in verification and affidavit ought not to be entertained.

36. Section 99 of the Code of Civil Procedure can be pressed into service in this situation, which provides that no decree should be reversed or modified for error or irregularity not affecting merits or jurisdiction. In the present case, at worst, the aforesaid alleged defective verification and affidavits can be said to be mere irregularities not affecting the merits and, therefore, only on the basis of such alleged irregularities, it cannot be said at this stage, that the suit filed by the original plaintiff or the evidence led on behalf of the original plaintiff and the appellant could not have been considered by the Courts below. Hence, the said questions are answered against respondent No. 1 and in favour of the appellant.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal (SA) No. 477 of 2015

Decided On: 05.05.2018

Anil Digambar Dhumal  Vs. Sunil and Ors.

Hon'ble Judges/Coram:

Manish Pitale, J.

Citation: 2019(2) MHLJ 292

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Whether second appeal is maintainable against order passed in application under O 21 R 97 of CPC?

When the application of Order 21 Rule 97 CPC is adjudicated, it is enveloped within the definition of decree and first appeal having been preferred, the provisions of CPC will come into play. When the proceeding of this character reach the District Court in a state of appeal, the procedure which is prevailing in ordinary Court of the country with regard to the proceeding, the ordinary Rule of CPC will apply.

7. In the case of R.M.A.R.A. Adaikappa Chettiar v. R. Chandrmekhara Thevar MANU/PR/0005/1947 : AIR 1948 PC 12, while considering a similar ratio of law Lord Simond observed:

"The true rule is that where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute the Courts are governed by the ordinary rules of procedures applicable thereto and an appeal lies, if authorized by such rules, notwithstanding that the legal right claimed arises under a special Statute which does not in terms confer a right of appeal."

8. In this case against the adjudication of decree first appeal was preferred by ordinary application of civil procedure code, therefore, if the first appeal is adjudicated by ordinary application of procedure of CPC, second appeal would lie.

IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR

W.P.(227) No. 249 of 2018

Decided On: 22.03.2018

 Sita Devi Sharma Vs. Mukta Ben

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Whether right to appeal is available if special statute under which right is claimed which does not confer right to appeal?

In the case of R.M.A.R.A. Adaikappa Chettiar v. R. Chandrmekhara Thevar MANU/PR/0005/1947 : AIR 1948 PC 12, while considering a similar ratio of law Lord Simond observed:

"The true rule is that where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute the Courts are governed by the ordinary rules of procedures applicable thereto and an appeal lies, if authorized by such rules, notwithstanding that the legal right claimed arises under a special Statute which does not in terms confer a right of appeal."

IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR

W.P.(227) No. 249 of 2018

Decided On: 22.03.2018

 Sita Devi Sharma Vs. Mukta Ben

Hon'ble Judges/Coram:

Goutam Bhaduri, J.

Citation: AIR 2018(NOC) 927 Chh

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Whether plea of readiness and willingness is finding of fact?

So far as the plea relating to readiness and willingness is concerned, it was again rightly held by the High Court to which we concur that this being a finding of fact, it could not be disturbed in second appeal and was binding on the High Court. It was more so when the first Appellate Court had recorded its finding by appreciating the entire evidence on record. We, therefore, find no ground to disagree with this finding of the High Court.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 6069 of 2008

Decided On: 05.12.2017

Balwant Vithal Kadam Vs. Sunil Baburaoi Kadam

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How to write judgment in second appeal/letter patent appeal?

 Time and again, this Court has emphasized on the Courts the need to pass reasoned order in every case which must contain the narration of the bare facts of the case of the parties to the lis, the issues arising the case, the submissions urged by the parties, the legal principles applicable to the issues involved and the reasons in support of the findings on all the issues in support of its conclusion. It is really unfortunate that the Division Bench failed to keep in mind this principle while disposing of the appeal and passed a cryptic and unreasoned order. Such order undoubtedly caused prejudice to the parties because it deprived them to know the reasons as to why one party has won and other has lost. We can never countenance the manner in which such order was passed by the High Court which has compelled us to remand the matter to the High Court for deciding the appeal afresh on merits.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2112 of 2018 (Arising out of SLP (C) No. 25814 of 2004)

Decided On: 15.02.2018

G. Saraswathi and Ors. Vs.  Rathinammal and Ors.

Hon'ble Judges/Coram:
R.K. Agrawal and Abhay Manohar Sapre, JJ.

Citation:  (2018) 3 SCC 340

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Whether court can grant relief in second appeal in absence of independent appeal or cross-Objection?

Having pronounced the judgment, the learned Single Judge of the High Court had again gone into the matter on the basis of a mention being made orally on behalf of the Respondent and while setting aside the permanent injunction granted in favour of the Respondent/Plaintiff, at Para 3, the learned Judge had stated that the windows in the Western wall of theDefendants, the prayer in the plaint was for removing those three windows, however, in the counter claim filed before the trial court, the Appellants/Defendants did not even make any prayer for retaining those three windows but granted the relief. The trial court dismissed the prayer of the Appellants/Defendants and the Respondent/Plaintiff but granted the relief on its own understanding and discretion. The first appellate court did not grant any relief relating to the windows. In the counter claim filed in the trial court, there is no prayer for retaining those windows by the Appellants/Defendants. The fact remains that as per the finding of the trial court, the suit came to be filed in the year 2002 and the windows had been in existence for nearly four years only anterior to the filing of the said suit and not for 20 years, so as to attract the acquisition by prescription as provided Under Section 15 of the Indian Easements Act, 1882, where for, the Respondent/Plaintiff was entitled to the relief of removal of those three windows in the Western wall of the Appellants/Defendants and for closure of that area occupied by those windows and the Defendants shall comply with the same by closing down the windows, the said decree is granted even though there is neither an appeal nor cross-objection filed by the Respondent/Plaintiff before the High Court contending the substantial question of law would arise in his appeal/cross objection in view of the fact that the said relief(s) was rejected by both the courts below.

5. Learned Counsel for the Appellants Mr. K.K. Mani submits that the grant of such relief by the High Court in exercise of its second appellate jurisdiction is contrary to law laid down by this Court in the case of Banarsi and Ors. v. Ram Phal, reported in MANU/SC/0147/2003 : (2003) 9 SCC 606. Paras 6, 7 and 15 read thus:

6. The appeals raise a short but interesting question of frequent recurrence as to the power of the Appellant court to interfere with and reverse or modify the decree appealed against by the Appellants in the absence of any cross-appeal or cross-objection by the Respondent under Order 41 Rule 22 Code of Civil Procedure and the scope of power conferred on the appellate court under Rule 33 of Order 41 Code of Civil Procedure.

7. The first question is whether without cross-objection by the Respondent, could the appellate court have set aside the decree passed by the trial court and instead granted straight away a decree for specific performance of contract. This would require reference to the principles underlying right to file an appeal and right to prefer cross-objection or when does it become necessary to prefer cross-objection without which decree under appeal cannot be altered or varied to the advantage of the Respondent and/or to the disadvantage of the Appellant. It has also been held by this Court in Samundra Devi v. Narendra Kaur SCC (para 21), that this power under Order 41 Rule 33 Code of Civil Procedure cannot be exercised ignoring a legal interdict.

15. Rule 4 seeks to achieve one of the several objects sought to be achieved by Rule 33, that is, avoiding a situation of conflicting decrees coming into existence in the same suit. The abovesaid provisions confer power of widest amplitude on the appellate court so as to do complete justice between the parties and such power is unfettered by consideration of facts like what is the subject matter of appeal, who has filed the appeal and whether the appeal is being dismissed, allowed or disposed of by modifying the judgment appealed against. While dismissing an appeal and though confirming the impugned decree, the appellate court may still direct passing of such decree or making of such order which ought to have been passed or made by the court below in accordance with the findings of fact and law arrived at by the court below and which it would have done had it been conscious of the error committed by it and noticed by the Appellate Court. While allowing the appeal or otherwise interfering with the decree or order appealed against, the appellate court may pass or make such further or other, decree or order, as the case would require being done, consistently with the findings arrived at by the appellate court. The object sought to be achieved by conferment of such power on the appellate court is to avoid inconsistency, inequity, inequality in reliefs granted to similarly placed parties and unworkable decree or order coming into existence. The overriding consideration is achieving the ends of justice. Wider the power, higher the need for caution and care while exercising the power. Usually the power under Rule 33 is exercised when the portion of the decree appealed against or the portion of the decree held liable to be set aside or interfered by the appellate court is so inseparably connected with the portion not appealed against or left untouched that for the reason of the latter portion being left untouched either injustice would result or inconsistent decrees would follow. The power is subject to at least three limitations: firstly, the power cannot be exercised to the prejudice or disadvantage of a person not a party before the Court; secondly, a claim given up or lost cannot be revived; and thirdly, such part of the decree which essentially ought to have been appealed against or objected to by a party and which that party has permitted to achieve a finality cannot be reversed to the advantage of such party. A case where there are two reliefs prayed for and one is refused while the other one is granted and the former is not inseparably connected with or necessarily depending on the other, in an appeal against the latter, the former relief cannot be granted in favour of the Respondent by the appellate court exercising power under Rule 33 of Order 41.

(emphasis supplied)

6. In support of the same proposition of law, learned Counsel for the Appellants placed reliance upon another judgment of this Court in the case of Pralhad and Ors. v. State of Maharashtra and Anr., reported in MANU/SC/0704/2010 : (2010) 10 SCC 458, wherein this Court after interpretation of Order 41 Rule 33 Code of Civil Procedure has clearly held that in the absence of an independent appeal or cross-objection being filed by the aggrieved party, the relief which was denied by the courts below cannot be granted in the second appeal filed by the Appellant.

7. In view of the law laid down by this Court on the same question of law as has been raised in this case, we are of the considered view that the principles laid down in the abovesaid cases are squarely applicable to the fact situation, therefore, we have to set aside the judgment and decree passed by the first appellate court, particularly the direction to the Appellants/Defendants to remove the windows in the Western wall of the Defendants and for closure of that area occupied by those windows. It is also needless to make an observation that the Respondent/Plaintiff had not even questioned the setting aside of the judgment and decree of permanent injunction granted by the first appellate court against the Appellants/Defendants regarding ingress and egress to the suit property etc. For the reasons stated supra, the appeals are allowed by setting aside that portion of the judgment which granted relief in favour of the Respondent/Plaintiff.

IN THE SUPREME COURT OF INDIA

C.A. Nos. 3224-3225 of 2016.

Decided On: 29.03.2016

Lakshmanan and Ors. Vs. G. Ayyasamy

Hon'ble Judges/Coram:

V. Gopala Gowda and Arun Mishra, JJ.

Citation:(2016) 13 SCC 165.

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Whether subsequent purchaser can be permitted to added as party in second appeal?

 Thus, pending disposal of the suit or the proceedings,
right to immovable property is directly and specifically in question;
the suit property cannot transferred or disposed of so as to affect
the   right   of   the   other   party   under   any   decree   or   order.     The
explanation   to   Section   52   of   the   Transfer   of   Property   Act   also
clarifies that  pendency of the suit  commences from  the date of
presentation of the plaint or the institution of the proceeding in a
Court of competent jurisdiction and to continue until the suit or

proceeding has been disposed of by a final decree or order and
complete satisfaction or discharge of such decree or order has been
obtained, or has become unobtainable by reason of the expiration of
any period of limitation prescribed for the execution thereof by any
law for the time being in force.
18.  In   my   view,   the   respondents­defendants   in   the   suit
cannot   be   allowed   to   create   a   situation   whereby   right   of   the
appellant­plaintiff   in   the   suit   is   defeated   due   to   transaction
between the alleged subsequent purchasers and the respondentsdefendants.
    The   subsequent   purchasers   claiming   under   the
respondents­defendants   may   have   their   remedy   as   against   the
respondents­defendants to claim damages for breach of agreement,
if   any,   with   the   respondents­defendants,   but   such   subsequent
purchasers   claiming   under   the   respondents­defendants   in   the
absence of privity of contract with the appellant­plaintiff are not
entitled   to   defeat   otherwise   sustainable   decree   by   seeking   to
intervene and participate at the hearing of the second appeal.  That
being so, Civil Application No.2848 of 2004 for grant of permission
to add the subsequent purchaser as respondent preferred by the

appellant must be rejected with costs. 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.218 OF 2000
Purushottam S/o Devidas Bhoyar,

             V
 Sau. Sheelabai W/o Kishor Shrungare,
    
CORAM : A. P. BHANGALE, J. 

DATED : September 10, 2015
Citation:2016(3) ALLMR105

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Procedure is to be followed by high court while deciding second appeal U/S 100 of CPC

 On perusal of the judgment it clearly shows that the High Court neither set out the case of the parties from their pleadings properly nor mentioned the findings recorded by the Trial Court and nor of the first appellate court. The High Court also did not examine the case in the context of legal provisions governing the issues and nor dealt with any submissions urged by the parties much less to record categorical finding on the questions framed.

17. On the contrary, we notice that the High Court in para 5 formulated another question as the only question arising in the case for decision which was not formulated as substantial question of law along with two questions already framed.

18. In our considered opinion, it was legally obligatory upon the High Court to properly set out the case of the parties, findings recorded by the Trial Court and the first Appellate Court, arguments of the parties on the questions of law framed and then answer the questions framed in the light of law applicable to the controversy involved by giving its reasoning. Order 20 Rule 4(2) and Rule 5 read with Order 41 Rule 31 provides for this requirement.

19. We may also consider apposite to mention that this Court had the occasion to examine the scope of Section 100 of the Code in Santosh Hazaro vs. Purushottam Tiwari (deceased) by LRs., [(2001) 3 SCC 179], wherein Justice R.C. Lahoti (as His Lordship then was and later became CJI) speaking for the three-judge Bench explained the scope and jurisdiction of the High Court while deciding the second appeal under Section 100 of the Code. The High Court, in our opinion, should have kept in consideration the law laid down in this case while deciding the second appeal.

Reportable

Supreme Court of India

Chintaman Namdev Patil (Dead) vs Sukhdev Namdev Patil & Anr on 28 September, 2015

Bench: J. Chelameswar, Abhay Manohar Sapre

Citation:(2016)1 SCC681

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When new plea of hardship can not be raised in second appeal?

 Ld. Senior Counsel argued that, point of hardship ought to
have been considered by the Courts. This point was never raised by
the defendant or his L.Rs. On this point, the ld. Counsel for the
plaintiff/present respondent placed reliance upon the decision of the
Apex Court in the case of Prakash Chandra Versus Narayan
reported in ( 2012) 5 SCC 403. In this case, the Apex Court has laid
down that there needs to be a specific contention about hardship and
issue also needs to be framed on that point. In view of this position of
law, this Court holds that, at this stage, such contention made by the

defendant cannot be considered.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
BENCH AT AURANGABAD.
SECOND APPEAL NO. 132 OF 2015
 Shakuntala W/o Yeshwant Bhujange,
VERSUS
 Chandrakant S/o Hiraman Bhujange,
 CORAM : T. V. NALAWADE, J.
 DATE : 30TH SEPTEMBER, 2015.
Citation; 2016(2) ALLMR342

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Whether second appeal by non-appealing party is maintainable?

 As noticed above, the short question falls

consideration is whether a second appeal challenging the

decision of the trial court as confirmed in appeal is maintainable

at the instance of a defendant who did not challenge the

decision of the trial court in appeal. It is now settled by a long

catena of decisions that only a person who is aggrieved by the

appellate decree is entitled to file a second appeal (See

Banarsi v. Ram Phal [(2003) 9 SCC 606]).
Rule 4 of Order 41 of the Code confers power on the appellate

court to reverse or vary the decision appealed against in favour

of a non-appealing party, if the appeal proceeds on a ground

common to all. The policy of this rule is to avoid contradictory

decisions on same questions. Rule 33 of Order 41 of the Code

confers power on the appellate court to pass any decree and

make any order which ought to have been passed or made or

make such further or other decree or order as the case may

require, notwithstanding that the appeal is as to part only of the


decree, in favour of all or any of the parties, although such

parties may not have filed any appeal or cross objection. The

policy of     this rule is to enable the appellate court to do

complete justice to the parties. The power of the court under

the aforesaid rules can be exercised by the court only as a

necessary consequence of the reliefs to be granted to the

appellant when the court finds that the appeal must succeed on

its merits and not independent of it. As such, merely for the

reason that the appellate court has power to interfere with the

decree passed by the trial court against a non-appealing party,

it cannot be said that the decree against the non-appealing

party is also the subject matter of the appeal. If the correctness

of the decree passed by the trial court against the fifth

defendant was not the subject matter of the appeal, it cannot

be said that there is any reason for the fifth defendant to feel

aggrieved by the decision of the appellate court.       If the fifth

defendant cannot be treated as a person aggrieved by the

decision of the appellate court,    it cannot be said that he is

entitled to challenge the decision of the appellate court in a


second appeal. If it is held that the fifth the defendant is

entitled to challenge the decree of the trial court as confirmed

by the appellate court in a second appeal, the said decision will

have the effect of conferring on the fifth defendant a right to

prefer a second appeal directly against the decision of the trial

court.  A similar view has been taken by the High Court of

Madras in Perumal v. Gurunathan and others (AIR 1996

Madras 415).      The learned Senior Counsel for the appellant,

relying on the decision of the Andhra Pradesh High Court in

P.Narasimham v. P.V.Narasimham               (AIR 1973 Andhra

Pradesh 162), contended that where a suit was decreed against

all the defendants on a common finding and if the common

finding is reversed in appeal by one of the defendants, the

other defendants can certainly challenge the decision of the

appellate court. The said decision cannot have any application

to the facts of the present case, for, the same was a case where

the appellate court allowed the appeal and varied the decision

of the trial court. As far the present case is concerned, the

appellate court has only confirmed the decision of the trial



court.      For the aforesaid reasons, I hold that this second

appeal    is not maintainable and the same is, accordingly,

dismissed.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                      PRESENT:

                      THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

       Dated:18TH DAY OF NOVEMBER 2015

                                            RSA.No. 726 of 2014 (C)
                                     
            THOMAS GEORGE, 
Vs
         A.T.JOSEPH, 

        Citation;AIR 2016(NOC)274 kerala

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When subsequent purchaser can not be permitted to be added as party in second appeal for specific performance of contract?

  In   my   view,   the   respondents ­defendants   in   the   suit
cannot   be   allowed   to   create   a   situation   whereby   right   of   the
appellant ­plaintiff   in   the   suit   is   defeated   due   to   transaction
between the alleged subsequent purchasers and the respondents defendants.
    The   subsequent   purchasers   claiming   under   the
respondents ­defendants   may   have   their   remedy   as   against   the
respondents ­defendants to claim damages for breach of agreement,
if   any,   with   the   respondents ­defendants,   but   such   subsequent
purchasers   claiming   under   the   respondents ­defendants   in   the
absence of privity of contract with the appellant ­plaintiff are not
entitled   to   defeat   otherwise   sustainable   decree   by   seeking   to
intervene and participate at the hearing of the second appeal.  That
being so, Civil Application No.2848 of 2004 for grant of permission
to add the subsequent purchaser as respondent preferred by the

appellant must be rejected with costs.  
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.218 OF 2000
Purushottam S/o Devidas Bhoyar,

           ::  VERSUS  ::
Sau. Sheelabai W/o Kishor Shrungare,
  
CORAM : A. P. BHANGALE, J. 

DATE OF PRONOUNCING JUDGMENT : September 10, 2015
Citation;2016(3) ALLMR 105

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When first appellate court is last court of facts?

 ‘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.
10. In Krishnan v. Backiam and another 
(2007) 12 SCC 190
, 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.(2010) 15 SCC 530, at paragraph-10, 
this principle has been
reiterated:
“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. 
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 231 OF 2015
DAMODAR LAL ... APPELLANT (S)
VERSUS
SOHAN DEVI AND OTHERS ... RESPONDENT (S)
Dated;January 5, 2016
KURIAN, J.:
Citation;(2016) 3 SCC 78

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Whether rejection of delay condonation application for filing first appeal amounts to dismissal of first appeal?

This Court in the case of Chandrakant Govind Sutar
.vs. M. K. Associates and another reported in 2003 (1) Mh.L.J.
1011 considered the duty of the Counsel towards his client as well
as duty towards the Court with reference to the Advocates Act as
well as the Civil Procedure Code. Regarding the order passed
below the application for condonation of delay, when such order is
passed at the stage of first appeal, it was specifically observed by
this Court that when application for condonation of delay is
allowed by the subordinate Court, in those cases revision under
Section 115 of the Code of Civil Procedure would be available. In
other words, when an order is passed dismissing the application
for condonation of delay in preferring the First Appeal, the
revision application against such order was held not tenable as the
consequence of dismissing the application for condonation of
delay in filing the appeal results in disposing the appeal as time
barred. Therefore, remedy by way of Second Appeal is available
in such cases.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, AT NAGPUR
SECOND APPEAL NO.128 OF 2013

 Smt.Shewantabai Kashinath Kumbhare Vs Purushottam s/o. Mahadeorao Ambatkar,

CORAM: A.P.BHANGALE, J.
DATED : 3rd February, 2014.
Citation;2015(7) ALLMR425

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Whether deft can raise issue of hardship in suit for specific performance of contract at the stage of second appeal?

Ld. Senior Counsel argued that, point of hardship ought to
have been considered by the Courts. This point was never raised by
the defendant or his L.Rs. On this point, the ld. Counsel for the
plaintiff/present respondent placed reliance upon the decision of the
Apex Court in the case of Prakash Chandra Versus Narayan
reported in ( 2012) 5 SCC 403. In this case, the Apex Court has laid
down that there needs to be a specific contention about hardship and
issue also needs to be framed on that point. In view of this position of
law, this Court holds that, at this stage, such contention made by the
defendant cannot be considered.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
BENCH AT AURANGABAD.
SECOND APPEAL NO. 132 OF 2015
 Shakuntala W/o Yeshwant Bhujange,

VERSUS
 Chandrakant S/o Hiraman Bhujange,

 CORAM : T. V. NALAWADE, J.
 DATE : 30TH SEPTEMBER, 2015.
Citation; 2016(2) ALLMR342

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Whether finding of fact can be interfered in second appeal?

Whether the
property was joint Hindu family property or it was self
acquired property of defendant No.1 is a question of fact
and the fact finding Court has given finding against the
appellants. In second appeal it is not possible to interfere
in this finding and it needs to be held all these properties

are the joint Hindu family properties.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Second Appeal No. 1132 of 2004
 Rajaram Mahadu Dahatonde
Versus
 Babu Mahadu Dahatonde,
 CORAM: T.V. NALAWADE, J.

 DATE : 29th OCTOBER 2015
Citation;2016(2)ALLMR 326

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Necessary pleadings to be made by party for claiming specific performance of contract of part of property

In this view of the matter, it is not necessary to consider whether the Courts below should have directed specific performance of the agreement in so far as it related to the share of the respondent in the suit field. In this connection it may be pertinent to note that Sub-section (3) of Section 12 of the Specific Relief Act, 1963 provides that where a party to a contract is unable to perform the whole or his part of it, he is not entitled to obtain a decree for specific performance if the part which must be left unperformed forms a considerable part of the whole, though admitting of compensation in money or if the part which must be left unperformed does not admit of compensation in money. However, at the suit of the other party, the Court may direct such a party in default to perform specifically so much of his part of the contract as he can perform if the party bringing the suit, that is the plaintiff, fulfills the conditions laid down in else (i) and (ii) of that Sub-section. These conditions are firstly that in the case in which the part which must be left unperformed forms a considerable part of the whole and admits of compensation in money, the plaintiff must pay the agreed consideration for the whole of the contract reduced by the consideration for the part which must be left unperformed, while in the case in which the unperformed part does not admit of compensation in money, the plaintiff must pay consideration for the whole of the contract without any abatement. The second condition is that in either of the above two cases, the plaintiff must relinquish all claims to the performance of the remaining part of the contract and all right to compensation, either for the deficiency or for the loss or damage sustained by him through the default of the defendant. It would be thus evident that a party to a contract which brings the suit under the provisions of Sub-section (3) of Section 12 of the Specific Relief Act, 1963, for specific performance of part of the contract, must frame its suit in the light of that Sub-section incorporating the required averments to bring its case within its four corners. In other words, the frame of a suit for specific performance of the whole contract is distinct from that for specific performance of part of it, as different considerations arise in the two suits. Moreover the defendant must have an opportunity by pleading and if necessary by adducing evidence, to show that the plaintiff is not entitled to specific performance of part of the contract. This he can do if there is a pleading on the part of the plaintiff bringing his case within the purview of the said Sub-section. It may be that the plaintiff can make an alternate claim for specific performance of the whole contract or only for a part of it. but if he intends to do so it must be clear from the plaint so as to give notice of it to the defendant He cannot bring the suit merely for specific performance of the whole contract and realising at the conclusion of the trial that that is not possible turn round and tell the Court that he may be granted decree for specific performance of that part only which is possible. This is what the appellants want to do in the matter and that too at the stage of second appeal. In my opinion, for the reasons stated above, the appellants could not press for the specific performance of the agreement in so far as it relates to the share of the respondent in the suit property.

Bombay High Court

Bhaurao Shamrao Bhalme And Ors. vs Mahadeo Raghu Yelekar on 16 August, 1978

Equivalent citations: AIR 1979 Bom 208, (1979) 81 BOMLR 323

Bench: Ginwala

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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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