Property tax rate duly applied as non-use or close condition of property was never in knowledge of Corporation

Ahmedabad Sunni Muslim Waqf Committee Vs Ahmedabad Municipal Corporation (Gujarat High Court)

Gujarat High Court held that factum of non-use and even handing over of tenancy and later resumption of possession was never in knowledge of Corporation. Further, valuation was undisputedly changed. Accordingly, the rate which was applicable at the relevant point of time is applied by the Corporation.

Facts- After getting actual possession of the property, Appellant Waqf Committee inquired details with regard to municipal tax about this property, but same was not responded and as such one another request in the form of application came to be made to consider assessment of property from the year 2000 as non-use tenanted premises in view of the decree and requested to consider reduction of tax amount.

However, Corporation on 4.7.20 15 was pleased to reject the application and since details have not been provided, appellant was constrained to prefer an application under Right to Information Act, 2005 and later on, information was provided on 3.8.2016 along with statement of assessment from the year 2001-2002 to 2016-2017. On receiving such information, appellant Committee came to know that yearly assessment which was fixed at Rs.4530/- for the year 2000-2001 is increased from 2001-2002 onwards at Rs.24,871/- and further increase was made from 2009-2010 to Rs.30,398/- which was later on further increased from the year 2013-2014 to Rs.38,688/-.

Conclusion- Held that since the property or portion of premises in question is not treated as a separate property for the purpose of assessment, we are of the opinion that there is no fault on the part of Corporation in arriving at any valuation. Additionally, it is a well established cannon of construction that Court should read the section as it is and cannot re-write it to suit its convenience in such a manner which may render the provision to some extent otiose.

Factum of non-use and even handing over of tenancy and later resumption of possession was never in knowledge of Corporation which fact is also not in dispute. Hence, the rate which was applicable at the relevant point of time is applied by the Corporation which aspect has been gone into by both the authorities, namely by learned Trial Judge as well as by competent authority of Corporation and as such, in the absence of any distinguishable material, we are unable to dislodge the conclusion which has been arrived at on the basis of very same material. Hence, we see no irregularity in the order passed by learned Trial Judge.

Further, it was stated that property was not used and closed since the year 2000. But, before the Corporation could be briefed, valuation was undisputedly changed. So, statutory lapse of the appellant cannot permit the Court to apply a different standard simply because it is a registered Charitable Trust and background of the case is such. Hence, from overall consideration of the material on record, we are of the view that appeal lacks merit.

FULL TEXT OF THE JUDGMENT/ORDER OF GUJARAT HIGH COURT

1. This group of First Appeals is arising out of a common question of law and challenging basically the action of respondent authority of charging valuation with respect to the properties belonging to the appellants. Since common question of law has arisen, learned advocates appearing for the respective sides have requested that hearing of all these appeals may be taken up together and hence for the sake of convenience, First Appeal No.3703 of 2017 is treated as a lead matter.

2. Brief background of the case is that property situated at Chankleshwar Mahadev Ward, Ahmedabad bearing Municipal Tenement No.0105-11-0551-0011-C, Survey No.1285 of Municipal Census No.864 is a Waqk property being managed by appellant, i.e. Ahmedabad Sunni Muslim Waqf Committee (hereinafter referred to as ‘Waqf’) was given on rent to one Maganbhai Sankalchand Gaur for business purposes at a monthly rent of Rs.86.62 and tenant was doing business in the property in the name of ‘Sharda Hindu Lodge’ and after death of said tenant Maganbhai S. Gaur, his legal heirs continued to be in possession and as per the terms, municipal tax and other taxes were required to be paid by said tenant, i.e. Maganbhai Sankalchand Gaur (original tenant).

3. It is the case of appellant that after earthquake in the year 2001, property became dilapidated, as a result of which under Section 133(D) of Code of Criminal Procedure, Senior Police Inspector, Khadia was pleased to issue notice on 18.6.2001 to pull down the premises as the same was in a dangerous condition. The property then remained un-utilized, as a result of which, appellant Waqk Committee instituted HRP Suit No.238 of 2012 before learned Small Causes Court for securing possession as premise in question was not used for more than a period of six months prior to filing of suit. On consideration of the material, suit came to be decreed in favour of appellant on 22.4.2014 and after execution of said decree, actual possession of property was received by appellant- Waqf Committee on 25.4.2015. Upon receipt of said possession, Appellant Waqf Committee inquired details with regard to municipal tax about this property, but same was not responded and as such one another request in the form of application came to be made to consider assessment of property from the year 2000 as non-use tenanted premises in view of the decree and requested to consider reduction of tax amount. However, Corporation on 4.7.20 15 was pleased to reject the application and since details have not been provided, appellant was constrained to prefer an application under Right to Information Act, 2005 and later on, information was provided on 3.8.20 16 along with statement of assessment from the year 2001-2002 to 2016-2017. On receiving such information, appellant Committee came to know that yearly assessment which was fixed at Rs.4530/- for the year 2000-2001 is increased from 2001-2002 onwards at Rs.24,871/- and further increase was made from 2009-2010 to Rs.30,398/- which was later on further increased from the year 2013-2014 to Rs.38,688/-.

4. It is the case of the appellant that this fact being noticed by appellant, feeling aggrieved by said valuation, Municipal Valuation Appeal No.6 of 2017 was filed before learned Small Causes Court challenging the assessment for the year 2016- 2017 in present lead appeal and simultaneously for other assessment years, separate valuation appeals were filed challenging the assessment of all these years right from 2001- 2002 to 2016-2017. These appeals were heard by learned Small Causes Court, Ahmedabad and by an identical order, learned Small Causes Court was pleased to dismiss the valuation appeals filed by the appellants on 18.7.2017, which order is made the subject matter of present First Appeal under Section 411 of the Gujarat Provincial Municipal Corporation Act, 1949 (hereinafter to be referred as ‘GPMC Act’).

5. Present lead appeal has been filed, as said earlier, for the assessment year 2016-2017, whereas other cognate appeals which are attached with this group are arising out of the very same controversy and no new facts are to be taken from those appeals except year of assessment and appeal numbers are different. Table showing First Appeals number, Municipal Valuation Appeal number and Assessment year is as under:-

6. Aforesaid cognate First Appeals have been filed with respect to separate assessment years as indicated above, but since common questions of law and facts have arisen, it appears that all these appeals were tagged and after February 2019, same have been placed as a group matters.

7. It is with this background, present First Appeals have come up for consideration before this Court in which appellants were represented by learned advocate Mr. MTM Hakim assisted by learned advocate Mr. Rizvan Shaikh, whereas for respondent authority, Ms. Jirga D. Jhaveri has represented and upon their request, matters have been taken up for hearing.

8. Learned advocate Mr. MTM Hakim appearing on behalf of the appellant has vehemently submitted that there is a clear error committed by the Court below in not accepting the valuation appeal since the facts are very peculiar in nature. It has been submitted that premises were given on rent to the respective tenants and premises were in dilapidated condition for which notices were given to vacate the premises and after the year 2001, premises were in such a state of affairs where it was not possible even for a tenant to reside there which had constrained the appellant to bring the suit for seeking possession back on the ground of non-use of the property for more than six months prior to filing of the suit and upon realizing the situation, even decree came to be passed and executed and possession came to be handed over back to the appellant. So, undisputedly, for almost a period of 20 years and more, premises remained unutilized and therefore, these properties cannot be even assessed in a regular form. It has been submitted that there was a report produced by the authority itself at Exh. 10 which also indicates clearly that premises have not been in use for a pretty long period and there appears to be even seal of Ahmedabad Municipal Corporation. So, when premises were not in use, authorities ought to have applied relaxed criteria for applying valuation instead of regular assessment. It was contended that prior to the year 2000-2001, assessment yearly was Rs.4530/-. Whereas after the said period, as indicated above, regular assessment has been increased and as such, if increased valuation is applied to a property which is practically not possible to be used, same would result into not only hardship to the appellant but would also result into injustice to the appellant as well and as such, request is made that without appreciating these aspects which are not in dispute, order passed by learned Trial Judge deserves to be corrected.

9. Learned advocate Mr. Hakim has further submitted that fact regarding non-use since number of years is not at all in dispute which has been even surfaced in the report prepared by the officials. Learned Trial Judge ought to have given due weightage to said aspect as well.

10. Learned advocate Mr. Hakim has further submitted that decree of HRP suit was already brought to the notice, but same has not been considered in the right spirit. Simply because a specific attention has not been drawn of the respondent Corporation in writing about non-use, without examining further, Corporation cannot apply new formula and saddle with heavy financial responsibility on the basis of valuation fixed at a later point of time. It was not in dispute that suit was filed in the year 2012, on the basis of non-use of the tenanted premises and pursuant to execution, possession was entrusted to the appellant only on 25.4.2015 and as such, suit proceedings ought to have been considered. Having not done so, an error which has been committed deserves to be corrected.

11. Learned advocate Mr. Hakim has submitted that apart from that appellant is a Waqf Committee and is set up for betterment of community at large and such financial burden ought not to have been shifted by arriving at a unilateral Mr. Hakim has submitted that lenient view in this peculiar background ought to have been taken.

12. However, candidly Mr. Hakim has submitted that appellant could not inform in writing that tenant was not using the premises, which lapse has occurred on the part of appellant and also it has been candidly submitted that before possession could be entrusted, new formula of valuation has already been However, be that as it may, since respondent authorities were quite aware about the fact of non-use since more than 20 years, valuation existed prior to change ought to have been applied and as such error which has been crept in deserves to be corrected by setting aside impugned order. No other submissions have been made.

13. As against this, learned advocate Ms. Jirga D. Jhaveri appearing on behalf of respondent Corporation has submitted that there is no merit in appeal, especially when undisputedly possession prior to its handing over to the appellant was standing in the name of tenant and undisputedly said intimation was never given to the Corporation and as such by virtue of Section 56 and 57 of the GPMC Act, appellant cannot shirk its responsibility which has already accrued. Further, Ms. Jhaveri has submitted that possession was handed over to the appellant by virtue of decree in the year 2015, by that time, a new formula of valuation was already in existence and as such when appellant has failed to perform its obligation by virtue of aforesaid provision, there is hardly any case made out by appellant to call for any interference since order of learned Trial Judge is a well-reasoned order.

14. Learned advocate Ms. Jhaveri has further submitted that Section 140 of GPMC Act is clearly stipulating liability upon occupier for payment of property tax and as such Statute has sufficiently couched the Corporation with power to assess tax and when tenant occupied the premises, premises cannot be assessed on the basis of its non-use or close condition. Further, it has been submitted that by virtue of Section 454 of the Act, Corporation is empowered even to frame Rules either prospectively or retrospectively for the purpose of levy of property tax. Hence, it is well within the competence of Corporation to fix valuation and submit bill accordingly. It has been submitted that competence of Corporation agitated throughout the proceedings by the appellant. Ms. Jhaveri has further submitted that perusal of the detailed order if undertaken would clearly indicate that while passing order, learned Trial Judge has not considered at length the situation which is prevailing, applicability of proper valuation and the fact of litigation between tenant and occupier has been considered and as such in no circumstance, it can be said that any perversity or irregularity has taken place in exercising the discretion. Hence, in absence of any other substantive material, detailed conclusion which has been arrived at may not be disturbed since view taken by learned Trial Judge is a possible view.

15. It has further been submitted that undisputedly, as per new formula, for the subsequent years, tax at a new valuation has been paid. So, if appellant has committed default in performing its obligation by not informing the Corporation, it was not fault of the Corporation and statutory effect of the provisions is justifiably maintained by the Corporation, hence no case is made out by the appellant. Accordingly, the appeal deserves to be dismissed.

16. Having heard learned advocates appearing for the parties and having gone through the material on record, first of all, before examining the submissions made by learned counsel for appellant, perusal of the order would clearly indicate that submissions which have been made before learned Trial Judge have been considered and on the basis of material, conclusion is arrived at and as such it cannot be said to be perverse or irregular in any form and we are conscious about the proposition of law that while sitting in an appeal, on the basis of same material, view may not be substituted if there appears to be a possible view arrived at after proper application of mind. We hereunder deem it proper to quote the conclusion arrived at by the Court below as contained in paragraph 8 of the judgment, which indicates proper application of mind while exercising the jurisdiction:

“8. I have gone through the above documentary evidence and argument canvassed by the both the Ld. Advocates for the parties. On perusal of pleading and documentary evidence on record and lengthy argument advance one thing is become undisputed facts that appellant is owner of the assessed premises and let out the same earlier and obtained the possession of the assessed premises on the bases of decree passed in the favour of the appellant. Further it is also admitted facts that the respondent is the Corporation and as per the law is bound to asses the valuation of property in the interest of large public interest. The authority has no means to see the ownership or status of the owner as well the surrounding residential. Further the authority has power to recover the taxes etc. upon the property situated within their jurisdiction. That there are guidelines to assess the valuation. New formula is as it is and not set-aside by higher authority from the aforesaid factual aspect to be considered the maintainable of appeal. Further admittedly. new formula has come in April 2001. The function of the authority is bound to follow the new formula. Further while considering the reply as well as the affidavit it reveals that the bill in dispute be prepared as per the new formula and according to the said formula subject property tax was assessed by the opponent authority. Further the new rules came into operation by virtue of amendment under the provision of Sec.454 of The B.P.M.C. Act. came into force from 01.04.2001. So, it presumed that the official work done by the authority as per power given by the law. Further as per the appellant, appellant was/is not given any benefit of non- used of the assessed premises but there is no documentary evidence adduced by the appellant on record that appellant had ever been informed respondent regarding non-used condition in writing, even from the averments of the HRP suit filed by the appellant against the tenant from that also it appears that the appellant original plaintiff of that suit pleaded that for last 29 months the tenant is not using the demise premises means assessed premises and that suit was filed in the month of February, 2012, therefore, even from the pleading of the appellant itself it becomes clear that though the respondent at the relevant time issued notice for demolish of the assessed premises but the appellant have not taken care to execute the same. Further while considering the assessment of tax as levied by the respondent from that is appears that tax assessed on the bases of periodically change in the property tax slab it means by applying the new formula and it appears that tax of property which was assessed in the year 2000-2001 was assessed on the bases of the old formula which was revised and new assessment of property tax formula comes into force and by application of new assessment of tax formula, it appears respondent demanded disputed tax bill amount from the appellant. Further regarding the new formula and method used for levy the tax it appears that appellant have not challenged the said formula but pray to fix the assessed tax prior to 2000-200 1 but in the support of claim made, no iota of evidence adduced by the appellant, how’s appellant is entitled for old calculation of property tax. Therefore, I come to the conclusion that the appellant is not entitled to fix the GRV at Rs.4.530/- instead of Rs.38.688/- for the year 2016-17 and assessment fixed by the respondent at Rs.38,688/- is quite just and proper and required no interference because even there is no documentary evidence adduced by the appellant on record that appellant have informed respondent regarding non-used condition in writing at any point of time. Therefore, even from the pleading of the appellant it self it becomes clear that though the respondent at the relevant time issued notice for demolish of the assessed premises but the appellant have not taken care to execute the same. Therefore, considering the above facts and circumstance I decide point No.1 in negative and for point No.2 1 pass the final order accordingly. I pass the following order.

ORDER

1. The Municipal Valuation Appeal is hereby dismissed.

2. Assessment fixed by the respondent at Rs.38,668/- for the year 20 16-17 for the appeal premises is hereby confirmed.

3. No order as to costs.

Signed and pronounced in the open court today 18th July, 2017.”

17. In the light of the aforesaid conclusion and satisfaction which has been arrived at on the basis of the material, we may revert back to the relevant provisions contained in GPMC Act centering around the controversy.

18. Appellant in past has let out the premises to a tenant which is not in dispute, fact of filing of suit is also not in dispute and fact that possession of premises was received by appellant on 25.4.12015 and prior thereto same was stated to be with tenant but was not in use is also not in dispute. It has also not been in dispute that appellant has not fulfilled the obligation of its part about intimation to the Corporation about aforesaid factum of tenancy. It is only after receipt of possession back from tenant, realizing tax liability, a request was made to the Corporation to reduce tax. So, when law requires a particular things to be done in a particular manner, same has to be done in that manner only which aspect if to be looked into in the context of present facts on hand, then it appears that appellant has failed to perform its part of obligation. A reference deserves to be made of Sections 56, 57 and 59 of the GPMC Act hereunder which necessitate the appellant to inform the Corporation which is undisputedly not informed:

56. Refund of property taxes on account of vacancies.-(1) When any building or land or any portion of any premises which has been treated as a separate property for the purpose of assessment under any provision of this Act, has been vacant for not less than thirty consecutive days the Commissioner shall, subject to the provisions hereinafter contained, refund the amount of the water tax and conservancy tax, if any. paid for the number of days that such vacancy lasted.

(2) When any building or land or any portion of any premises which has been treated as a separate property for the purpose of assessment under any provision of this Act, has been vacant for not less than sixty consecutive days the Commissioner shall, subject to the provisions hereinafter contained, refund two-thirds of the amount of the general tax, if any, paid for the number of days that such vacancy lasted:

Provided that no refund of general tax shall be claimable in any case in which the Commissioner has sanctioned a drawback under the provisions of rule 11.

Explanation-For the purpose of this rule-

(a) premises shall be deemed to be vacant only if they were unoccupied and unproductive of rent;

(b) premises shall be deemed to be productive of rent if let to a tenant having a continuing right of occupation thereof, whether they are actually occupied by such tenant or not;

(c) premises furnished or reserved by the owner for his own occupation whenever required shall be deemed to be occupied, whether they are actually occupied by the owner or not;

(d) premises used or intended to be used for the purpose of any industry which is seasonal in character shall not be deemed to be vacant merely on account of their being unoccupied and unproductive of rent during such period or periods of the year in which seasonal operations are normally suspended;

(e) a vacancy which has continued during the whole of the month of February shall be deemed to have continued for not less than thirty consecutive days.

57. Refund not claimable unless notice of vacancy is given to Commissioner.-

(1) No refund of any property tax shall be claimed from the Commissioner as aforesaid, unless notice in writing of the vacancy shall have been given by the person liable for the tax, or his agent, to the Commissioner.

(2) No refund shall be paid by the Commissioner for any period previous to the day of the delivery of such notice unless the notice is given within seven days of the occurrence of the vacancy, in which case refund shall be paid as from the date of the occurrence of the vacancy.

(3) When a vacancy continues from one period in respect of which property taxes, or any instalment thereof, are recoverable into the next following period, no refund of any property tax shall be claimable from the Commissioner as aforesaid on account of such continued vacancy, unless notice thereof shall be given to the Commissioner as aforesaid within thirty days from the commencement of the said next following period and such notice of vacancy shall be required notwithstanding that notice of vacancy required to be given under sub-rule (1) was not given until after the expiry of the period in which the vacancy occurred.

59. Applications for refund when and how to be made.-It shall be in the discretion of the Commissioner to disallow any claim for refund of any property tax unless application therefor is made to him in writing within thirty days after the expiry of the period to which the claim relates, accompanied by the bill served on the applicant for the amount of the tax from which the refund is claimed.

19. So, from bare reading of aforesaid provisions, vis-a-vis candid submission of learned advocate Mr. Hakim for the appellant, it seems that since the property or portion of premises in question is not treated as a separate property for the purpose of assessment, we are of the opinion that there is no fault on the part of Corporation in arriving at any valuation. Additionally, it is a well established cannon of construction that Court should read the section as it is and cannot re-write it to suit its convenience in such a manner which may render the provision to some extent otiose. This proposition is laid down in a decision reported in AIR 1984 SC 718.

20. Further, when language of Statute is free from any ambiguity, no duty is cast upon the Court to do anything more than to give effect to the word or words used in that provision and any fiscal provision must be given a literal construction and also strictly to be construed. So, keeping in mind the golden rule of construction that when words of the Statute are clear, plain and unambiguous, that is they are reasonably susceptible to only one meaning, the Courts are bound to give effect to that meaning irrespective of the consequences and duty of a Judge is to expound and not to legislate is a fundamental rule and mere hardship to a litigant is not a circumstance by virtue of which language of statute to be moulded. Hence, keeping in view the said sound proposition of Rule of interpretation, when appellant has undisputedly failed to observe the statutory rules, simply because it is a charitable trust, it is not open for the Court to mould the language of rule to the benefit of appellant. Hence, we are unable to accept the stand taken by learned counsel for the appellant to take a sympathetic view. Hence, no merit appears in these appeals.

21. Yet, another aspect which cannot be unnoticed is that valuation which was existing prior to 2001 has undergone a change. Prior to 2000-2001, assessment was fixed at Rs.4530/- which was increased from the year 2001-2002 at Rs.38,688/- and then later on, same has further been exceeded and hence, it is not open for appellant to claim a prior valuation of 2000-200 1. Factum of non-use and even handing over of tenancy and later resumption of possession was never in knowledge of Corporation which fact is also not in dispute. Hence, the rate which was applicable at the relevant point of time is applied by the Corporation which aspect has been gone into by both the authorities, namely by learned Trial Judge as well as by competent authority of Corporation and as such, in the absence of any distinguishable material, we are unable to dislodge the conclusion which has been arrived at on the basis of very same material. Hence, we see no irregularity in the order passed by learned Trial Judge.

22. Learned advocate Mr. Hakim has made a request in the alternative form that since appellant is the Waqf Committee, some lenient view may be taken. But, then simply because it is a Waqf Committee, we cannot apply a different standard when every tax payer is made applicable with this formula which is statutorily prescribed and this is more so when undisputedly, appellant Waqf Committee has failed to discharge its obligation. Hence, in the absence of any proper justification, we are unable to accept the stand of appellant and we see no error in the order

23. Further, it was stated that property was not used and closed since the year 2000. But, before the Corporation could be briefed, valuation was undisputedly changed. So, statutory lapse of the appellant cannot permit the Court to apply a different standard simply because it is a registered Charitable Trust and background of the case is such. Hence, from overall consideration of the material on record, we are of the view that appeal lacks merit.

24. So far as the submission about non-use reflecting from report at Exh. 10, notices have been issued by authorities, but all these materials have been gone into and satisfaction is arrived at and as such, there appears to be no perversity. View taken by learned Trial Judge is a possible view, hence in the absence of any distinguishable material, we are not inclined to disturb the findings. At this stage, we may make a reference to a decision delivered by the Hon’ble Apex Court on the issue of exercise of appellate jurisdiction and scope contained therein. No-doubt, Appellate Court has got wide power to dislodge the findings, provided findings reflect perversity, material irregularity or non-dealing of any material which circumstances are absent in the present proceedings. Hence, following observations would not permit us to set aside the findings which has been arrived.

25. Scope of appeal enlisted by the Hon’ble Apex Court is quite clear. We deem it fit to quote relevant observations from the decisions of recent past:-

(1) Paragraph 20 of the decision in the case of Venkatesh Construction Company v. Karnataka Vidyut Karkhane Limited reported in (2016) 4 SCC 119, reads as under:

20. The Appellate Court may not interfere with the finding of the trial court unless the finding recorded by the trial court is erroneous or the trial court ignored the evidence on record. The High Court reversed the decree passed by the trial court without discussing oral and documentary evidence and several grounds raised before the trial court. The High Court veered away from the main issue and went on to elaborate on the law of arbitration and the mode of setting aside the arbitral award under Section 34 of the Arbitration Act, which in our view, was not warranted. Without considering the oral and documentary evidence, the High Court erred in interfering with the factual findings recorded by the trial court and the impugned judgment is liable to be set aside.

(2) Paragraph 22 of the decision in the name of V. Prabhakara Basavaraj K. (Dead) By Legal Representatives and Another reported in (2022) 1 SCC 115 reads as under:-

22. The first appellate court while exercising power under Section 96 can re-do the exercise of the trial court. However, such a power is expected to be exercised with caution. The reason being, the trial court alone has the pleasure of seeing the demeanor of the witness. Therefore, it has got its own advantage in assessing the statement of the witnesses which may not be available to the appellate court. In exercising such a power, the appellate court has to keep in mind the views of the trial court. If it finds that the trial court is wrong, its decision should be on the reasoning given. A mere substitution of views, without discussing the findings of the trial court, by the appellate court is not permissible. If two views are possible, it would only be appropriate to go with the view expressed by the trial court. While adopting reasoning in support of its findings, the appellate court is not expected to go on moral grounds alone.

23. The aforesaid views expressed by us are nothing but a reiteration of the settled principle of law as could be seen through the following paragraphs of the decision rendered by this Court in the case of Jagdish Singh v. Madhuri Devi, (2008) 10 SCC 497:

“27. It is no doubt true that the High Court was exercising power as first appellate court and hence it was open to the Court to enter into not only questions of law but questions of fact as well. It is settled law that an appeal is a continuation of suit. An appeal thus is a re-hearing of the main matter and the appellate court can re-appraise, re- appreciate and review the entire evidence – oral as well as documentary and can come to its own conclusion.

28. At the same time, however, the appellate court is expected, nay bound, to bear in mind a finding recorded by the trial court on oral evidence. It should not forget that the trial court had an advantage and opportunity of seeing the demeanor of witnesses and, hence, the trial court’s conclusions should not normally be No doubt, the appellate court possesses the same powers as that of the original court, but they have to be exercised with proper care, caution and circumspection. When a finding of fact has been recorded by the trial court mainly on appreciation of oral evidence, it should not be lightly disturbed unless the approach of the trial court in appraisal of evidence is erroneous, contrary to well- established principles of law or unreasonable.

29. Before more than a century, in Coghlan v. Cumberland [(1898) 1 Ch 704 (CA)] Lindley, M.R. pronounced the principle thus;

“Even where the appeal turns on a question of fact, the Court of Appeal has to bear in mind that its duty is to rehear the case, and the Court must reconsider the materials before the Judge with such other materials as it may have decided to admit. The Court must then make up its own mind, not disregarding the judgment appealed from, but carefully weighing and considering it; and not shrinking from overruling it if on full consideration the Court comes to the conclusion that the judgment is wrong. When, as often happens, much turns on the relative credibility of witnesses who have been examined and cross-examined before the Judge, the Court is sensible of the great advantage he has had in seeing and hearing them. It is often very difficult to estimate correctly the relative credibility of witnesses from written depositions and when the question arises which witness is to be believed rather than another; and that question turns on manner and demeanour, the Court of Appeal always is, and must be, guided by the impression made on the Judge who saw the witnesses. But there may obviously be other circumstances, quite apart from manner and demeanour, which may shew whether a statement is credible or not; and these circumstances may warrant the Court in differing from the Judge, even on a question of fact turning on the credibility of witnesses whom the Court has not seen.”

(See also observations of Lord Thankerton in Watt v. Thomas, [1947 AC 484])

30. In Sara Veeraswami v. Talluri Narayya [AIR 1949 PC 32] the Judicial Committee of the Privy Council, after referring to relevant decisions on the point, stated :

“…but if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at the trial, and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a Judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given.”

31. This Court also, before more than half a century in Sarju Pershad v. Jwaleshwari, Pratap Narain Singh [SCC p. 717 para 8)

“8. The question for our consideration is undoubtedly one of fact, the decision of which depends upon the appreciation of oral evidence adduced in the case. In such cases, the appellate court has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in court. 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. 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 the 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.

32. Referring to several cases on the point, the Court concluded: (Sarju Pershad case, SCC p. 720, para 18):

“18. …The duty of the appellate court in such cases is to see whether the evidence taken as a whole can reasonably justify the conclusion which the trial court arrived at or whether there is an element of improbability arising from proved circumstances which, in the opinion of the court, outweighs such finding.”

(emphasis supplied)

33. After about a decade, in Radha Prasad v. Gajadhar Singh [this Court reiterated: (AIR p. 118, para 14)

“14. The position in law, in our opinion, is that when an appeal lies on facts it is the right and the duty of the appeal court to consider what its decision on the question of facts should be; but in coming to its own decision it should bear in mind that it is looking at the printed record and has not the opportunity of seeing the witnesses and that it should not lightly reject the trial Judge’s conclusion that the evidence of a particular witness should be believed or should not be believed particularly when such conclusion is based on the observation of the demeanor of the witness in court. But this does not mean that merely because an appeal court has not heard or seen the witness it will in no case reverse the findings of a trial Judge even on the question of credibility, if such question depends on a fair consideration of matters on record. When it appears to the appeal court that important considerations bearing on the question of credibility have not been taken into account or properly weighed by the trial Judge and such considerations including the question of probability of the story given by the witnesses clearly indicate that the view taken by the trial Judge is wrong, the appeal court should have no hesitation in reversing the findings of the trial Judge on such questions. Where the question is not of credibility based entirely on the demeanor of witnesses observed in court but a question of inference of one fact from proved primary facts the court of appeal is in as good a position as the trial Judge and is free to reverse the findings if it thinks that the inference made by the trial Judge is not justified.”

34. In T.D. Gopalan v. Commissioner of Hindu Religious & Charitable Endowments [(1972) 2 SCC 329], this Court said: (SCC p. 333, para 9):

“9. The High Court next proceeded to reproduce a summary of the statement of each of the witnesses produced by the defendants. No attempt whatsoever was made to discuss the reasons which the learned District Judge had given for not accepting their evidence except for a general observation here and there that nothing had been suggested in the cross-examination of a particular witness as to why he should have made a false statement. We apprehend that the uniform practice in the matter of appreciation of evidence has been that if the trial court has given cogent and detailed reasons for not accepting the testimony of a witness the appellate court in all fairness to it ought to deal with those reasons before proceeding to form a contrary opinion about accepting the testimony which has been rejected by the trial court. We are, therefore, not in a position to know on what grounds the High Court disagreed with the reasons which prevailed with the learned District Judge for not relying on the evidence of the witnesses produced by the defendants.”

35. Yet in another decision in Madhusudan Das v. Narayanibai [(1983) 1 SCC 35], this Court said:(SCC pp. 39-40, para 8):

“8. …At this stage, it would be right to refer to the general principle that, in an appeal against a trial court decree, when the appellate court considers an issue turning on oral evidence it must bear in mind that it does not enjoy the advantage which the trial court had in having the witnesses before it and of observing the manner in which they gave their testimony. When there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the appellate court should permit the findings of fact rendered by the trial court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial court or there is a sufficient balance of improbability to displace its opinion as to where the credibility lies. . . .The principle is one of practice and governs the weight to be given to a finding of fact by the trial court. There is, of course, no doubt that 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 a misreading of the evidence or on conjectures and surmises the appellate court is entitled to interfere with the finding of fact.”

(emphasis supplied)

36. Three requisites should normally be present before an appellate court reverses a finding of the trial court:

(i) it applies its mind to reasons given by the trial court;

(ii) it has no advantage of seeing and hearing the witnesses; and

(iii) it records cogent and convincing reasons for disagreeing with the trial court.

37.If the above principles are kept in mind, in our judgment, the decision of the High Court falls short of the grounds which would allow the first appellate court to reverse a finding of fact recorded by the trial court. As already adverted earlier, the High Court has ‘virtually’ reached a conclusion without recording reasons in support of such conclusion. When the court of original jurisdiction has considered oral evidence and recorded findings after seeing the demeanour of witnesses and having applied its mind, the appellate court is enjoined to keep that fact in mind. It has to deal with the reasons recorded and conclusions arrived at by the trial court. Thereafter, it is certainly open to the appellate court to come to its own conclusion if it finds that the reasons which weighed with the trial court or conclusions arrived at were not in consonance with law.”

26. From the overall consideration and material placed before us, even independent look in respect of such material, we are not in as position to take a different view in the aforesaid background of facts and as such while dealing with the material, we have noticed that appellant has failed to discharge its obligation which prevent us from disturbing the findings of learned Trial Court.

27. From the aforesaid discussion and keeping in view the proposition laid down by Hon’ble the Apex Court and examining  he material placed before us, we are of the view that this is not a fit case in which we may exercise our appellate jurisdiction since we see no irregularity, illegality nor perversity in any form. Hence, we are not inclined to disturb the possible view of the Trial Court. Accordingly, the appeal being merit-less, deserves to be dismissed. Hence, lead matter, being First Appeal No.3703 of 2017, stands DISMISSED and order of learned Trial Court stands confirmed. No order as to costs. Ad-interim relief, if any, stands vacated forthwith. Pending Civil Application also stands disposed of.

28. In view of the aforesaid discussion, other cognate First Appeals are also governed by the very same reasoning. Accordingly, cognate first appeals being First Appeal Nos.3704 of 2017 to 3718 of 2017 are also DISMISSED hereby. Pending Civil Applications stand DISPOSED OF.