In any second appeal, the High
may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,
(a) Which has not been determined by the lower appellate Court or both by the Court of first instance and the lower appellate Court; or
ADVERTISEMENTS:
(b) Which has been wrongly determined by such Court or Courts by reason of a decision on such question of law as is referred to in S. 100.
The old section has been replaced by the new section which incorporates the consequential changes made in S. 100, C.P.C., which permits a second appeal only on a substantial question of law. The Joint Committee of both Houses of Parliament felt that as the second appeal would be confined to a substantial question of law, the words “of fact” found in the old provision were not necessary.
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The High Court has the power to dispose of a second appeal on a necessary issue if the evidence on the record is sufficient for the disposal of the appeal, and the issue has not been determined by the first appellate court or both by the court of first instance and the lower appellate court, or it has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in S. 100, viz.,. a substantial question of law.
ADVERTISEMENTS:
Section 103 of the Code of Civil Procedure confers powers on the High Court to decide questions of facts in second appeal even in cases where the facts have not been decided by the lower appellate court.
Thus, in an eviction petition on the ground that the tenant has acquired vacant possession of residence within the meaning of S. 14 (1) (h) of the Rent Act, although the Tribunal has not expressed its opinion on the question of fact, whether the tenant has or has not acquired vacant possession of residence, the High Court in second appeal has power to decide such question, when the evidence on record is sufficient for the decision of that question.
Interference in findings is not warranted where no material evidence having direct impact on the merits of the decision of case has been ignored.