F.A. No. 249 of 1967

6th March, 1969.

Petitioner Counsel: H.D. Banaji, Vatcha & Co.
Respondent Counsel: S.D. Vimadalal, C.N. Daji, Little & Co.

Cases Cited:
AIR 1968 SC 466 at p. 470.

JUDGMENT

JUDGMENT:- K.K. DESAI, J.-[After setting the facts and dealing with points not material to this report the judgment proceeds.] Mr. Banaji has submitted that under section 47 of the Parsi Marriage and Divorce Act, we have jurisdiction to substitute our own findings to the above effect in the place of the findings of the Delegates. That section runs as follows:

"Section 47. An appeal shall lie to the High Court from- (a) the decision of any Court established under this Act, whether a Chief Matrimonial Court or District Matrimonial Court, on the ground of the decision being contrary to some law or usage having the force of law, or of a substantial error or defect in the procedure or investigation of the case which may have produced error or defect in the decision of the case upon the merits, and on no other ground; and..".

The submission of Mr. Banaji was that the finding about constructive desertion is always an inference of law from facts. The finding of the Delegates on the above facts related to the finding that the defendant was guilty of constructive desertion. Therefore, the decision of the Delegates was contrary to law. The further submission of Mr. Banaji was that the finding of the Delegates was contrary to overwhelming evidence and was such as no reasonable body of Delegates could arrive at having regard to the evidence. The finding was, therefore, arrived at by defective procedure and investigation of the case, which had produced an error and defect in the decision of the case upon the merits. Now, in connection with this submission it first requires to be noticed that the Parsi Marriage and Divorce Act is special law and enacts special procedure for decision of matrimonial disputes, including the question of divorce amongst the Parsis. Admittedly the Act clearly provides by section 46 that in suits under this Act all questions of law and procedure shall be determined by the presiding Judge; but the decision on the facts shall be the decision of the majority of the Delegates before whom the case is tried. Even as regards appeals to the High Court jurisdiction has been circumscribed by the phrase "on no other ground" in the last part of sub-section (a) of section 47. The word "law" appears in both the above sections. Now, it is true that it is well settled that the findings of facts arrived at without any evidence at all on record may in law be treated as "erroneous". In a particular exceptional case, it may be proved in an appeal before the High Court that the findings of the Delegates had resulted from misconduct. Towards proving misconduct, reliance may be placed on the fact that she finding was impossible having regard to overwhelming evidence in favour of the party alleging misconduct. On such an argument being made, the question of misconduct may be decided by this Court and consequently a conclusion may be arrived at that the findings of the Delegates were incorrect.

2. However, on the plain language of sections 46 and 47, it is clear that all questions of facts are liable to be generally disposed of by the decision of the majority of the Delegates. In this connection, it is relevant to remember that in respect of such decision there will be nothing on the record at any time by way of reasoning on the basis whereof the same is arrived at. The High Court, therefore, in an appeal before it, will not be in possession of any material on an analysis whereof it could make a finding that the reasoning for the decision was incorrect. The scheme of the Act, which does not require the Delegates to record the reasoning for their decision, indicates that the Legislature never desired that the Court of appeal should substitute its own findings on questions of fact. The above scheme of sections 46 and 47, we apprehend, is enacted by the Legislature at the behest of the Parsi community. This scheme is emphasised by the phrase "on no other ground" as contained in the last part of subclause (a) of section 47.

3. In this connection Mr. Banaji relied upon the fact that the provisions in section 100 of the Code of Civil Procedure regarding second appeals are in language similar to the language in section 47. He also relied upon the decision of the Supreme Court in the case of Sonawati v. Sri Ram1. The argument for the appellant in that case was that the finding of the first appellate Court that one Pritam Singh was in cultivatory possession in 1359 Fasli was binding upon the High Court in second appeal. The Supreme Court negatived that contention on the ground that the appellate Judge had in arriving at his conclusion ignored very important evidence on record and on that account the conclusion was not binding on the High Court. The effect of the above observations of the Supreme Court is that where the first appellate Court ignores important evidence on record in arriving at certain conclusions, its findings on questions of fact may not be binding on the High Court. In making the above proposition the Supreme Court appears to have relied upon its finding that "possession of a person in wrongful occupation cannot be deemed cultivatory possession". In the aforesaid manner the Supreme Court considered the question as question of law and then made the above observations. It has been observed for a number of years in diverse reports of cases as regards the true construction and effect of section 100 that a second appeal does not lie on the ground of an erroneous finding of fact. A second appeal would lie if it could be shown that the first appellate Court misdirected itself on a point of law in dealing with the evidence, or when it refused altogether to consider the material evidence on the erroneous ground that it was immaterial. Having regard to the phrase "on no other ground" as contained in section 47 of the Act, it is difficult to hold that the decision of the Delegates on the questions of fact is liable to be set aside by the High Court in an appeal. It is difficult to hold that it could be proved in an appeal before the High Court that in arriving at their decision the Delegates had failed to consider the material evidence on record. The law having not required the Delegates to record the reasoning of their decision, it would be impossible for the High Court to make such a finding. For the same reason it would be impossible for the High Court to set aside any decision of the Delegates on questions of fact on the ground of the same being perverse, or as being unreasonable. As already stated, unless a finding is made that the Delegates misconducted themselves in arriving at their decision in respect of questions of fact, the High Court will not be justified in interfering with such decision.

4. This being the true effect and construction of the scheme of sections 46 and 47, we are unable to accept Mr. Banaji's submission as regards each of the three contentions made by him.

[The rest of the judgment is not material to this report.]

Appeal dismissed.