Mool Raj vs Mohinder Paul

The sole point that was urged on behalf of the appellant before me was that the courts below have failed to consider the quetion whether the

land lord had the desire and means to reconstruct the shop.

In order to appreciate the argument, it will be necessary to briefly refer to the observations made by the court below on this question. The trial

court has touched this aspect in these words :

The plaintiff is a man of substance. He has the means and for that pupose he has already obtained the necessary sanction from the Notified Are?

Committee for constuction of the two shops with rooms above.

The lower appellate court has observed :

Let us see whether the plaintiff has the bonafide urge to rebuild the shop. On this point the plaintiff has produced an approved plan by the Town

Area Committee Rajouri, which is on record. In addition to that, the evidence on record is that the plaintiff has a sound financial position and he can raise the construction because this fact has not been rebutted or proved that the plaintiff has no source to build which could have dislodged the

plaintiff's claim.

The argument of the learned counsel for the appellant is that the courts below have neither discussed the evidence nor even indicated the

considerations which have entered into their minds in order to come to the conclusion that the piaintiff was a man of sufficient means capable of undertaking the proposed reconstruction. He urged these bald observations be treated as a finding and that the case is really one in which there is no finding on the question whether the plaintiff has the desire and means to undertake the proposed reconstruction. He also urged the desire and the means are sine quo non for determining Jthe bonafides of the requirement of reconstruction and that in the absence of any finding on the question that the plaintiff had the necessary desire and means to undertake the reconstruction, the conclusion that he required the shop for reconstruction was vitiated and unsustainable in law. In reply, learned counsel for the respondent conceded that the desire and means to build is an important consideration for determining the reasonableness of the requirement for reconstruction. He, however, contended that there is a concurrent finding of fact that the plaintiff had the requisite desire and capability and that in the second appeal the High Court cannot interfere with such finding even if it is erroneous.

There can be hardly any dispute with the proposition of law that in second appeal the High Court would not go into a question of fact, however

erroneous the finding of fact recorded by the courts below may be. But this principle would be applicable if there is a finding in the legal sense or, if

I may say so, a judicial finding. A judicial finding postulates objective consideration. Such consideration implies the application of mind to the available material. There can be no application of mind unless a court refers to the available material, weighs it, records its conclusions based upon such material and gives reasons for drawing such conclusions. All these aspects are missing in the so called finding recorded by the courts below that the plaintiff is possessed of the necessary desire and means to undertake the proposed reconstruction None of the two courts below has spelt out the considerations which, in its opinion, governed, the adjudication regarding the plaintiff's desire and means to undertake the proposed

construction, muchless, indicated how those requirements were fulfilled by the evidence available in the present case. The observations made by either are as bald as they could be. In the circumstances I am inclined to agree with the contention of the learned counsel for the appellant that there is no finding on the question as to whether the plaintiff had the necessary desire and means to undertake the proposed reconstruction and that the absence of such finding vitiates the judgment.

In the view expressed above, the lower courts have omitted to determine the question of fact whether the plaintiff had the necessary desire and

means to undertake the proposed reconstruction. This question had a vital bearing on the right decision of the suit on merits. In order to avoid miscarriage of justice resulting from such an omission, the Legislature has made two distinct provisions. By virtue of section 103 of the Code of

Civil Procedure the High Court is invested with power to determine any issue of fact necessary for the disposal of the appeal but not determined by the lower court provided the evidence on the record is sufficient. By rule 25 order 41 C. P. C. it has further provided :

Where the Court from whose decree the appeal is preferrea has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer t'ie same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required ; and such Court shall proceed to try such issues, and shall return the the evidence to the Appellate Court together with its findings thereon and the reasons therefor.

Thus this court has power of determining the issue left undetermined by the lower appellate court on the evidence on record or of remitting the case to the lower court for a finding on the issue with liberty to the parties to adduce additional evidence if they so choose. In the present case the evidence on record is not, however, sufficient to enabie this court to determine this issue. It has no where, been indicated as to what is the gross income of the plaintiff and how much is he able to save and what are his accumulated savings. On this point and related matters the evidence is

wanting. In the circumstances the better course for me would be to task the lower Appellate Court to give a finding after giving the parties oppprtunity to adduce additional evidence if they so desire. Accordingly I remit the cise to the lower Appellate court with the direction that the court will return a finding on the following question after giving the parties an opportunity to produce the additional evidence ;

Whether the plaintiff has the necessary desire and means to undertake the proposed reconstruction ?

The Court shall submit its finding within a period of three months The case will come up for further hearing after the finding is received. The

parties are directed to appear before the lower Appellate Court on 30 April, 1980.