JUDGMENT
S.S. Nijjar, J.
1. I have heard the learned counsel for the appellant at length.
2. A perusal of the judgment of the lower appellate court, particularly paragraphs 17,20 and 24 clearly shows that the appeal filed by the appellant has been decided on the basis that the relevant material and documentary evidence has not been placed before the lower court. This finding of the lower appellate court is totally against the observations made by the lower appellate court in the order dated 25.10.1997. In the aforesaid order by which the application of the appellant for leading additional evidence was allowed, it has been observed that the documents placed on the record are copies of the official records and those have already been placed on the file of the lower court. Even
exhibit marks have been put on the documents. It is not understood as to why those were not admitted as part of the record. The application was, therefore, allowed subject to payment of Rs. 500/- as costs.
3. It is submitted by Mr. Kanwaljit Singh, Advocate that after this application was allowed, the respondent-state was permitted to lead evidence in rebuttal. Learned counsel submits that all the documents were available on the record and yet the appeal has been allowed on the basis that the appellant has failed to place on record the relevant material. In my view, the findings of fact recorded by the lower appellate court are based on mis-reading of the relevant evidence. In fact it appears that the lower appellate court while deciding the appeal did not care to even have a perfunctory glance at the record, which was available. In view of the above, the finding of fact recorded by the tower appellate court, would have to be held to be not based on any evidence. Had the lower appellate court considered the evidence on the record, a different conclusion would have been reached. When a finding of fact is recorded on the basis of no evidence the same would give rise to a substantial question of law as envisaged under Section 100 C.P.C. This view of mine finds support from the observations made by the Hon’ble Supreme Court in the case of Ishwar Dass Jain v. Sham Lal (dead) by LRS. JT 1999 (9) S.C. 305. On page, paragraph 11 of the judgment, it is observed as under: –
“There are two situations in which interference with findings of fact is permissible. The fact one is when material or relevant evidence is not considered which, if considered would have led to an opposite conclusion. This principle has been laid down in a series of judgments of this Court in relation to section 100 CPC after the 1976 amendment. In Dilbagrai Punjabi v. Sharad Chandra (JT 1988 (3) SC 308 =1988 Supple. SCC 710) while dealing with a Second Appeal of 1978 decided by the Madhya Pradesh High Court on 20.8.1981, L.M. Sharma, J. (as he then was) observed that.”
“The Court (the first appellate Court) is under a duty to examine the entire relevant evidence on record and if it refuses to consider important evidence having direct bearing on the disputed issue and the error which arises as of a magnitude that it gives birth to a substantial question of law, the High Court is fully authorised to set aside the finding. This is the situation in the present case.”
4. In view of the above, the appeal is allowed.
5. The judgment and decree recorded by the learned lower appellate court in C.A. No. 130-T/99 dated 8.6.1993 decided on 17.7.1999 is hereby set aside. The appeal is remanded back to the lower appellate court for decision of the appeal on merits after taking into consideration all the documentary evidence, which has been placed on record.
6. The parties are directed to appear before the lower appellate court on 2.4.2002. Records be sent back to the lower appellate court forthwith.