HARDEEP KAUR Vs MALKIAT KAUR
Bench: R.M. LODHA,H.L. GOKHALE
Case number: C.A. No.-002870-002870 / 2012
Diary number: 16444 / 2011
Advocates: GAGAN GUPTA Vs
UGRA SHANKAR PRASAD
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2870 OF 2012 (Arising out of SLP (Civil) No. 15574 of 2011)
Hardeep Kaur …. Appellant
Vs.
Malkiat Kaur …. Respondent
JUDGMENT
R.M. Lodha, J.
Leave granted.
2. The defendant is in appeal aggrieved by the
judgment dated March 9, 2011 of the High Court of Punjab
and Haryana whereby the Single Judge of that Court allowed
the second appeal filed by the respondent – plaintiff; set
aside the judgment and decree dated January 5, 2001
passed by the District Judge, -
Sangrur and restored the judgment and decree dated April
21, 1997 passed by the Civil Judge, Junior Division, Dhuri.
3. The short question that arises for consideration in
this appeal by special leave is whether a second appeal lies
only on a substantial question of law and it is essential for the
High Court to formulate a substantial question of law before
interfering with the judgment and decree of the lower
appellate court. This question arises in this way. The
respondent (hereinafter referred to as `plaintiff’) filed a suit for
specific performance of the contract dated May 22, 1993.
According to the plaintiff, the appellant (hereinafter referred to
as `defendant’) being co-owner having 1/12th share in the
agricultural land admeasuring 183 bighas 19 biswas situate in
Ferozepur Kuthala, Tehsil Dhuri, by an agreement dated May
22, 1993, agreed to sell 15 bighas 4 biswas of land to the
plaintiff at the rate of Rs. 15000/- per bigha. The defendant
received Rs. 1,48,000/- as earnest money. The sale deed
was to be executed on or before March 10, 1994 and the
possession of the land was also to be delivered at the time of
registration of the sale deed on receipt of remaining
consideration of Rs. 80,000/-. The defendant got the time for
execution of sale deed extended upto May 10, -
1995 with the consent of the plaintiff. However, despite
repeated requests by the plaintiff, she did not execute the
sale deed. It is the plaintiff’s case that she had been always
ready and willing to perform her part of the contract, but since
the defendant failed to perform her part of the contract, the
suit for specific performance of the contract had to be filed.
4. The defendant contested the suit and denied the
execution of the agreement of sale dated May 22, 1993.
She also denied having received any earnest money. She
stated that she was illiterate lady and did not know how to
write and sign and the subject agreement was false and
fabricated document. On the pleadings of the parties, the
trial court framed the following issues:-
1. Whether the defendant executed an agreement to sell on 22.5.93 and executed
writing dated 10.3.94 on the back of the agreement and received Rs. 1,48,000/- as earnest money?
2. Whether plaintiff is entitled to specific performance of the agreement and for possession?
3. Whether the plaintiff has got no cause of action to file the present suit?
4. Whether the plaintiff is ready and willing and is still ready and willing to perform her part of contract?
5. Relief.
5. On recording the evidence and thereafter hearing
the parties, the trial court decided issue nos. 1 to 4 in favour
of the plaintiff and decreed the plaintiff’s suit on April 21, 1997
by directing the defendant to execute the sale deed by May
31, 1997, failing which it was declared that plaintiff would be
entitled to get the same executed through court on payment
of remaining consideration.
6. The defendant challenged the judgment and
decree of the trial court in appeal before the District Judge,
Sangrur. The District Judge, Sangrur, on hearing the parties,
although did not interfere with the finding of the trial court in
respect of the execution of agreement dated May 22, 1993,
but held that both the parties had contributed towards
frustration of the execution of the sale deed and, therefore,
the plaintiff was not entitled to specific performance of the
agreement. The District Judge, accordingly, modified the
decree of the trial court by directing refund of Rs. 1,48,000/-
along with interest at the bank rate from the date of the
agreement until realization.
-
7. Being not satisfied with the judgment and decree
dated January 5, 2001 passed by the District Judge, Sangrur,
the plaintiff preferred second appeal before the Punjab and
Haryana High Court. As noted above, the Single Judge
allowed the appeal; set aside the judgment and decree of the
first appellate court and restored the judgment and decree of
the trial court.
8. The perusal of the judgment of the High Court
shows that no substantial question of law has been framed
and yet second appeal was allowed.
9. Sections 100, 101 and 103 of the Code of Civil
Procedure, 1908 (for short, `CPC’) read as follows:-
“S.-100.- Second appeal.—(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. - (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question :
Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.”
“S.101.-Second appeal on no other grounds.- No second appeal shall lie except on the ground mentioned in section 100.”
“S.103.- Power of High Court to determine issues of fact. – In any second appeal, the High Court 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
(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 section 100.”
10. The jurisdiction of the High Court in hearing a
second appeal under Section 100 CPC has come up for
consideration before this Court on numerous occasion. In
long line of cases, this Court has reiterated that the High
Court has a duty to formulate -
the substantial question/s of law before hearing the second
appeal. As a matter of law, the High Court is required to
formulate substantial question of law involved in the second
appeal at the initial stage if it is satisfied that the matter
deserves to be admitted and the second appeal has to be
heard and decided on such substantial question of law. The
two decisions of this Court in this regard are: Kshitish
Chandra Purkait v. Santosh Kumar Purkait and Others1,
and Dnyanoba Bhaurao Shemade v. Maroti Bhaurao
Marnor2. It needs to be clarified immediately that in view
of sub-section (5) of Section 100, at the time of hearing of
second appeal, it is open to the High Court to re-formulate
substantial question/s of law or formulate fresh substantial
question/s of law or hold that no substantial question of law is
involved. This Court has repeatedly said that the judgment
rendered by the High Court under Section 100 CPC without
following the procedure contained therein cannot be
sustained. That the High Court cannot proceed to hear the
second appeal without formulating a substantial question
of law in light of the provisions contained in Section 100
CPC has been reiterated in -
1
(1997) 5 SCC 438
2
(1999) 2 SCC 471
Panchugopal Barua and Others v. Umesh Chandra
Goswami and Others;3, Sheel Chand v. Prakash Chand4;
Kanai Lal Garari and Others v. Murari Ganguly and
Others5; Ishwar Dass Jain (Dead) through L.Rs. v. Sohan
Lal (Dead) by L.Rs.6; Roop Singh (Dead) through L.Rs. v.
Ram Singh (Dead) through L.Rs.;7 Santosh Hazari v.
Purushottam Tiwari (Deceased) by L.Rs.8; Chadat Singh v.
Bahadur Ram and Others9; Sasikumar and Others v.
3
(1997) 4 SCC 713
4
(1998) 6 SCC 683
5
(1999) 6 SCC 35
6
(2000) 1 SCC 434
7
(2000) 3 SCC 708
8
(2001) 3 SCC 179
9
(2004) 6 SCC 359
Kunnath Chellappan Nair and Others10; C.A. Sulaiman
and Others v. State Bank of Travancore, Alwayee and
Others11; Bokka Subba Rao v. Kukkala Balakrishna and
Others12; Narayanan Rajendran and Another v.
Lekshmy Sarojini and Others13 and Municipal
Committee, Hoshiarpur v. Punjab State Electricity Board
and Others14.
11. Some of the above decisions and the provisions
contained in Sections 100, 101 and 103 CPC were
considered in a -
10
(2005) 12 SCC 588
11
(2006) 6 SCC 392
12
(2008) 3 SCC 99
13
(2009) 5 SCC 264
14
(2010) 13 SCC 216
recent decision of this Court in Umerkhan v. Bismillabi alias
Babulal Shaikh and Others.15. One of us (R.M. Lodha,J.)
speaking for the Bench in Umerkhan15 stated the legal
position with regard to the jurisdiction of the High Court in
hearing a second appeal in paragraphs 11 and 12 of the
Report (page 687) thus:
“11. In our view, the very jurisdiction of the High Court in hearing a second appeal is founded on the formulation of a substantial question of law. The judgment of the High Court is rendered patently illegal, if a second appeal is heard and judgment and decree appealed against is reversed without formulating a substantial question of law. The second appellate jurisdiction of the High Court under Section 100 is not akin to the appellate jurisdiction under Section 96 of the Code; it is restricted to such substantial question or questions of law that may arise from the judgment and decree appealed against. As a matter of law, a second appeal is entertainable by the High Court only upon its satisfaction that a substantial question of law is involved in the matter and its formulation thereof. Section 100 of the Code provides that the second appeal shall be heard on the question so formulated. It is, however, open to the High Court to reframe substantial question of law or frame substantial question of law afresh or hold that no substantial question of law is involved at the time of hearing the second appeal but reversal of the judgment
15
(2011) 9 SCC 684
and decree passed in appeal by a court subordinate to it in exercise of jurisdiction under Section 100 of the Code is impermissible without formulating substantial question of law and a decision on such question”.
(emphasis supplied)
-
12. This Court has been bringing to the notice of the High Courts the constraints of Section 100 of the Code and the mandate of the law contained in Section 101 that no second appeal shall lie except on the ground mentioned in Section 100, yet it appears that the fundamental legal position concerning jurisdiction of the High Court in second appeal is ignored and overlooked time and again. The present appeal is unfortunately one of such matters where the High Court interfered with the judgment and decree of the first appellate court in total disregard of the above legal position.”
The above principle of law concerning jurisdiction of the High
Court under Section 100 CPC laid down in Umerkhan15 has
been reiterated in a subsequent decision in Shiv Cotex v.
Tirgun Auto Plast Private Limited and Others. 16. This
16
(2011) 9 SCC 678
Court through one of us (R.M. Lodha,J.) observed in
paragraph 11 of the Report (page 681) as follows:-
“The judgment of the High Court is gravely flawed and cannot be sustained for more than one reason. In the first place, the High Court, while deciding the second appeal, failed to adhere to the necessary requirement of Section 100 CPC and interfered with the concurrent judgment and decree of the courts below without formulating any substantial question of law. The formulation of substantial question of law is a must before the second appeal is heard and finally disposed of by the High Court. This Court has reiterated and restated the legal position time out of number that formulation of substantial question of law is a condition -
precedent for entertaining and deciding a second appeal…...”.
12. The relevant discussion in the judgment by the
High Court reads as follows:
“After hearing learned counsel for the parties and going through the records of the case, this appeal deserves acceptance and the judgment and decree passed by the trial court deserves to be restored for the reasons to be given hereinafter.
In this case, the defendant-respondent could not produce any evidence on record to show that the said agreement to sell was forged or a fabricated document or it was the result of fraud or misrepresentation. The plaintiff- appellant proved on record that she had always been ready and willing to perform her
part of the agreement. In fact, filing of the suit by the plaintiff-appellant itself showed that she was ready and willing to perform her part of the agreement. The defendant-respondent had denied her signatures on the agreement to sell (Exhibit P.1) and the endorsement (Exhibit P.3) made on the back of the agreement, vide which the date of execution of the sale deed was extended from 10.3.1994 to 10.5.1995 by claiming that she did not know how to write and sign. However, there is evidence of Telu Ram (P.W.4), produced by the plaintiff. Telu Ram (P.W.4) had brought the original file No. 2110 concerning the defendant-respondent Hardeep Kaur whereby she had taken loan. On the application (Exhibit P.5) for taking loan, on the receipt of payment of loan amount (Exhibit P.6) and on the other documents pertaining to the sanction of loan (Exhibits P.7 to P.12), the defendant had put her signatures. It, thus, belied the stand of the defendant that she usually thumb marked the documents and had not signed the agreement to sell (Exhibit P.1) and the endorsement (Exhibit P.3). -
Both these documents i.e., Exhibit P.1 and P.3 prove in certain terms that the defendant had agreed to sell the land measuring 15 Bighas 4 Biswas to the plaintiff for Rs. 2,38,000/-. Major part of the sale consideration i.e., Rs. 1,48,000/- had already been paid at the time of execution of the agreement to sell (Exhibit P.1). The remaining amount of sale consideration of Rs. 80,000/- was deposited by the plaintiff in the trial court. It shows that the plaintiff has always been ready and willing to perform her part of the agreement. Under the circumstances, the lower appellate court was not justified in confining the relief of the plaintiff to the return of earnest money only.
Under the circumstances, this appeal succeeds. The same is, accordingly, allowed. The judgment and decree passed by the lower appellate court are set aside and those of the trial court are restored. However, there shall be no order as to costs.”
13. Apparently, the High Court has ignored and
overlooked the mandatory requirement of the second
appellate jurisdiction as provided in Section 100 CPC and
that vitiates its decision as no substantial question of law has
been framed and yet the judgment and decree of the first
appellate court has been reversed. However, Mr. Neeraj
Kumar Jain, learned senior counsel for the respondent,
submitted that though no substantial question of law has
been expressly framed by the High Court while accepting the
second appeal, but the above discussion by the High Court
clearly shows that the High Court considered the questions
whether the -
plaintiff was entitled to the grant of decree of specific
performance of the contract once execution of agreement has
been duly proved and the plaintiff was always ready and
willing to perform her part of the contract and whether the
first appellate court has correctly exercised the discretion in
terms of Section 20 of the Specific Relief Act, 1963 while
refusing the decree for specific performance of the contract
as was ordered by the trial court. In this regard, he relied
upon a decision of this Court in M.S.V. Raja and Another v.
Seeni Thevar and Others17.
14. In paragraph 18 (pages 659-660) of the Report in
M.S.V. Raja17 this Court observed as follows:
“We are unable to accept the argument of the learned Senior Counsel for the appellants that the impugned judgment cannot be sustained as no substantial question of law was formulated as required under Section 100 CPC. In para 22 of the judgment the High Court has dealt with substantial questions of law. Whether a finding recorded by both the courts below with no evidence to support it was itself considered as a substantial question of law by the High Court. It is further stated that the other questions considered and dealt with by the learned Judge were also substantial questions of law. Having regard to the questions that were considered and decided by the High Court, it cannot be said that substantial questions of law did not arise for consideration and they were not formulated. Maybe, substantial questions of law were -
17
(2001) 6 SCC 652
not specifically and separately formulated. In this view, we do not find any merit in the argument of the learned counsel in this regard.”
15. In M.S.V. Raja17 this Court found that the High
Court in paragraph 22 of the judgment under consideration
therein had dealt with substantial questions of law. The Court
further observed that the finding recorded by both the courts
below with no evidence to support it was itself considered as
a substantial question of law by the High Court. It was further
observed that the other questions considered and dealt with
by the learned Judge were substantial questions of law.
Having regard to the questions that were considered and
decided by the High Court, it was held by this Court that it
could not be said that the substantial questions of law did not
arise for consideration and they were not formulated. The
sentence `maybe substantial questions of law were not
specifically and separately formulated’ in M.S.V. Raja17 must
be understood in the above context and peculiarity of the
case under consideration. The law consistently stated by this
Court that formulation of substantial question of law is a sine
qua non for exercise of jurisdiction under Section 100 CPC
admits of no ambiguity and permits no departure.
-
16. In the present case, the High Court has allowed
the second appeal and set aside the judgment and decree of
the first appellate court without formulating any substantial
question of law, which is impermissible and that renders the
judgment of the High Court unsustainable.
17. Consequently, the appeal is allowed and the
impugned judgment of the High Court is set aside. The
second appeal (R.S.A. No. 1679 of 2001 – Malkiat Kaur vs.
Hardeep Kaur) is restored to the file of the High Court for
fresh consideration in accordance with law. No order as to
costs.
….……… ……………. J.
(R.M.
Lodha)
...………………… …..J.
(H. L. Gokhale)
NEW DELHI MARCH 16, 2012.