Punjab Courts Act, 1918 – s.41 – Second appeals – Scope of interference – Appellant-plaintiff sought specific performance of agreement to sell dtd. Nov. 5, 2004 in respect of land measuring
193 kanals 18 marlas @ Rs.1,27,000/- per acre – Rs.12,50,000/and Rs.1,00,000/- was paid to defendant Nos.1 and 2 as earnest money at the time of execution of agreement to sale – Suit decreed – Appeal thereagainst – Dismissed – In the second appeal, the decree for specific performance of the agreement was declined inter alia holding that ‘DS’, son of the appellant was not the attorney to act on behalf of the appellant – Held: In second appeal, the scope of interference within the Punjab and Haryana High Court would be the same as CPC existed prior to 1976 amendment – Provisions of s.41 of the 1918 Act and of s.100, CPC are pari materia – Jurisdiction in second appeal is not to interfere with the findings of fact on the ground that findings are erroneous, however gross or inexcusable the error may seem to be – Findings of fact will also include the findings on the basis of documentary evidence – Jurisdiction to interfere in the second appeal is only where there is an error in law or procedure and not merely an error on a question of fact – High Court could not interfere with the findings of fact recorded after appreciation of evidence merely because the High Court thought that another view would be a better view – Readiness and willingness to perform contract is a finding of fact on the basis of oral and documentary evidence led by the parties – First appellate court returned a finding that the plaintiff was ready and willing to perform the contract and that the defendants cannot take plea that they were not aware that ‘DS’ was the power of attorney holder – Findings recorded by the first appellate court cannot be said to be contrary to law which may confer jurisdiction on the High Court to interfere with the findings of fact recorded by the first appellate court – High Court was not within its jurisdiction to interfere with the findings of fact only for the reason that plaintiff failed to prove power of attorney in favour of ‘DS’ – Judgment of the High Court set aside – Decree passed by the lower appellate court restored – Code of Civil Procedure, 1908 – s.100 – Code of Civil Procedure (Amendment) Act, 1976 – General Clauses Act, 1897 – s.10.
Allowing the appeal, the Court
HELD : 1.1 The jurisdiction of the High Court in second appeal is circumscribed by the provisions of Section 41 of the Punjab Courts Act, 1918. Prior to amendment in the Code of Civil Procedure vide CPC (Amendment) Act, 1976 w.e.f. February 1, 1977, the scope of interference in second appeal under the Punjab Act as well as under the Code of Civil Procedure as it existed before the amendment was on similar grounds. [Para 10] [783-C-D]
1.2 The effect of the Constitution Bench judgment in Pankajakshi case is that in second appeal, the scope of interference within the Punjab and Haryana High Court would be the same as Code of Civil Procedure existed prior to 1976 amendment. The provisions of Section 41 of the Punjab Act and of unamended Section 100 of the CPC were pari materia. The jurisdiction in second appeal is not to interfere with the findings of fact on the ground that findings are erroneous, however, gross or inexcusable the error may seem to be. The findings of fact will also include the findings on the basis of documentary evidence. The jurisdiction to interfere in the second appeal is only where there is an error in law or procedure and not merely an error on a question of fact. In view of the above, the High Court could not interfere with the findings of fact recorded after appreciation of evidence merely because the High Court thought that another view would be a better view. A perusal of the findings recorded show that the first appellate court returned a finding that the plaintiff was ready and willing to perform the contract and that the defendants cannot take plea that they were not aware that ‘DS’ was power of attorney holder. Therefore, the findings recorded by the first appellate court cannot be said to be contrary to law which may confer jurisdiction on the High Court to interfere with the findings of fact recorded by the first appellate court. The respondents have not raised any argument that the first appellate court has failed to determine some material issue of law which may confer jurisdiction on the High Court to interfere with the findings of fact nor there is any substantial error or defect in the procedure provided by the Code of Civil Procedure or by any other law for the time being in force which may possibly have produced error or defect in the decision on merits. Therefore, the High Court was not within its jurisdiction to interfere with the findings of fact only for the reason that plaintiff has failed to prove power of attorney in favour of ‘DS’. [Paras 11, 16-19] [783-C-D; 787-G-H; 788-A-E]
1.4 The agreement to purchase the land was entered into by the plaintiff through her son ‘DS’ when a sum of Rs.13,50,000/- was paid to the defendants. The defendants could accept a sum of Rs.13,50,000/- from ‘DS’ but they disputed the authority of ‘DS’ to enter into agreement to purchase on behalf of his mother. ‘DS’ had appeared in the office of the Sub Registrar for execution of the sale deed on January 31, 2005 with the plea that he has brought the balance sale consideration but the defendants have not turned up. In fact, the defendants relied upon their presence before the Sub Registrar on January 28, 2005 i.e. even before January 30, 2005, i.e. the date on which the execution of sale deed was fixed. January 30, 2005 was Sunday. Therefore, in terms of provisions of Section 10 of the General Clauses Act, 1897, it will be the next working day i.e. January 31, 2005 which will be deemed to be the date for performance of the agreement and on the said date, ‘DS’ appeared with balance sale consideration and marked himself present. In respect of financial capacity, it has come on record that the sale deeds (Exh. P-15 and Exh. P16) were executed by ‘RK’ prior to January 30, 2005 for making payment to the defendants to execute the sale deed as per terms and conditions of the agreement. Therefore, the High Court was not within its jurisdiction to interfere in second appeal only for the reason that on the date of agreement, there was no specific power of attorney in favour of son of the plaintiff, ‘DS’. In view of the above, the judgment of the High Court is set aside and the decree passed by the lower appellate court is restored. The appellant is granted two months’ time to pay balance sale consideration to defendant Nos. 1 and 2 and upon receiving the amount, the defendants shall execute the sale deed in favour of the plaintiff. If the defendants fail to receive the amount, the plaintiff will be at liberty to deposit the amount with the executing court and seek execution of the decree in accordance with law. [Paras 20-22] [788-F-H; 789-A-D]
Pankajakshi (D) through LRs. & Ors. v. Chandrika & Ors. (2016) 6 SCC 157 : [2016] 3 SCR 1018 – followed. Deity Pattabhiramaswamy v. S. Hanymayya & Ors. AIR 1959 SC 57 ; Kshitish Chandra Bose v. Commissioner of Ranchi (1981) 2 SCC 103 : [1981] 2 SCR 764 ; Gurdev Kaur & Ors. v. Kaki & Ors. (2007) 1 SCC
546 : [2006] 1 Suppl. SCR 27 – relied on.
Kirodi (since deceased) through his LR v. Ram Parkash & Ors. 2019 SCC OnLine SC 759 ; Chand Kaur(D)
through LRs. v. Mehar Kaur (D) through LRs 2019 SCC OnLine SC 426 ; Surat Singh(D) v. Siri Bhagwan & Ors. (2018) 4 SCC 562 : [2018] 1 SCR 1063 ; Sadhu v. Mst. Kishni 1980 AIR (Punjab) 85 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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