RANDHIR KAUR Vs PRITHVI PAL SINGH .
Bench: HON'BLE MR. JUSTICE L. NAGESWARA RAO, HON'BLE MR. JUSTICE HEMANT GUPTA
Judgment by: HON'BLE MR. JUSTICE L. NAGESWARA RAO
Case number: C.A. No.-005822-005822 / 2019
Diary number: 29169 / 2015
Advocates: A. VENAYAGAM BALAN Vs
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5822 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 32979 OF 2016)
RANDHIR KAUR
.....APPELLANT(S)
VERSUS
PRITHVI PAL SINGH & ORS. .....RESPONDENT(S)
J U D G M E N T
HEMANT GUPTA, J.
Leave granted.
2) The appellant is plaintiff who has sought specific performance of
agreement to sell dated November 5, 2004 in respect of land
measuring 193 kanals 18 marlas at the rate of Rs.1,27,000/- per
acre. A sum of 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. The date of registration of sale deed was
fixed as January 30, 2005. The suit for specific performance was
filed on April 3, 2006.
3) The learned trial court vide judgment and decree dated April 13,
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2010 decreed the suit. The appeal against said judgment and
decree remained unsuccessful when such appeal was dismissed on
August 11, 2012. However, in the second appeal, the decree for
specific performance of the agreement was declined but instead
decree for recovery of Rs.13,50,000/- paid by the appellant along
with interest at the rate of 12% was granted. The High Court held
that plaintiff was ready and willing to perform the agreement and
that Dhanwant Singh was not the attorney to act on behalf of the
appellant.
4) Learned counsel for the appellant-plaintiff argued that in view of
the judgment of this Court in Pankajakshi (D) through LRs &
Ors. v. Chandrika & Ors.1, substantial question of law may not
be required to be framed but in second appeal, the finding of fact
recorded cannot be interfered with even in terms of Section 41 of
the Punjab Courts Act, 19182.
5) It is argued that the High Court has not recorded any finding which
satisfies the tests laid down in Section 41 of the Punjab Act. It is
further argued that though the first power of attorney dated
September 29, 1999 was not in respect of land in question but in
the subsequent power of attorney dated September 14, 2005, the
appellant has ratified all the acts of the Attorney Dhanwant Singh
including the purchase of movable and immovable property
1 (2016) 6 SCC 157 2 for short, ‘Punjab Act’
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anywhere in her name. It is argued that the agreement dated
November 5, 2004 was entered into by the appellant through her
son Dhanwant Singh in whose favour registered power of attorney
was executed on September 14, 2005. It is the said Dhanwant
Singh who has paid the amount to the defendants. The plea of the
defendants that Dhanwant Singh was not authorised to act on
behalf of his mother is wholly untenable as the defendants having
received the amount from Dhanwant Singh. The finding that sum
of Rs.13,50,000/- was paid by the appellant through Dhanwant
Singh has been accepted by the High Court when the Court
recorded the following findings:
“17. Adverting to the facts of the case in hand, agreement of
sale dated November 05, 2004 (Ex.P-1) was executed by
appellants/defendants No. 1 and 2 on their behalf as well as on
behalf of defendants No. 3 and 4, on receipt of a sum of `13.5
lacs as earnest money. Though, amount of earnest money has
been disputed by learned counsel for appellants-defendants No.
1 and 2 but there is no cogent and convincing evidence in this
regard. So, it cannot be safely concluded that agreement of sale
(Ex.P-1) was executed by defendants No.1 and 2 on receipt of a
sum of Rs.13.5 lacs as an earnest money. Execution of
document has also not been otherwise disputed by appellants-
defendants and respondent-plaintiff. Otherwise also, no amount
of oral evidence can be taken into consideration and pales into
insignificance, in view of a recital contained in document.”
6) In view of the findings recorded, it is argued that the High Court
committed material illegality in declining the relief of specific
performance on the ground that Dhanwant Singh was not
authorised to act on behalf of the appellant and, that the appellant
has not appeared as a witness herself.
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7) It is also argued that defendants have not raised any plea in the
written statement that Dhanwant Singh was not the authorised
representative of the plaintiff to enter into agreement on her
behalf.
8) On the other hand, Mr. Neeraj Kumar Jain, learned senior counsel
appearing for the defendants, submitted that first power of
attorney dated September 29, 1999 registered on January 18,
2000 does not relate to land in question nor it empowers
Dhanwant Singh to purchase any other land. The power of attorney
executed in favour of Dhanwant Singh on September 14, 2005
empowering him to purchase movable or immovable property but
such power of attorney relates to purchase in future and not in
respect of the agreement already executed. It is argued that
plaintiff has never intimated the defendants about Dhanwant
Singh, as being the attorney of the plaintiff. The High Court was
justified in interfering in the second appeal as the decision of the
courts below was contrary to law as the findings recorded by the
trial court and the appellate court is not based upon facts on
record.
9) This Court in Kirodi (since deceased) through his LR v. Ram
Parkash & Ors.3 has held that judgments in Chand Kaur(D)
3 2019 SCC OnLine SC 759
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through LRs. v. Mehar Kaur(D) through LRs4 and Surat
Singh(D) v. Siri Bhagwan & Ors.5, are contrary to the
Constitution Bench judgment in Pankajakshi case, therefore, not
correct law. It, thus, transpires that in terms of the Constitution
Bench judgment, substantial questions of law are not required to
be framed in second appeal but, the jurisdiction of the High Court
is not to reverse the finding of facts in terms of Section 41 of the
Punjab Act. The jurisdiction of the High Court in second appeal is
circumscribed by the provisions of Section 41 of the Punjab Act.
The first ground is that decision being contrary to law or to some
custom or usage having the force of law. The argument of Mr. Jain
is that decision of the first appellate court is contrary to law as the
plaintiff has failed to prove readiness and willingness to perform
the agreement. The readiness and willingness to perform a
contract is a finding of fact on the basis of oral and documentary
evidence led by the parties. The first appellate court has recorded
the following findings on the question of readiness and willingness
of the plaintiff:
“19. … Now what is to be seen if both the parties
appeared to be at fault because when the agreement to
sell has been provide and the defendant Nos. 1 and 2
have also shown that they are entering into an
agreement on behalf of defendant Nos. 3 and 4 being
their power of attorney but till date the defendant Nos. 1
and 2 failed to produce any power of attorney in their
favour on behalf of defendant Nos. 3 and 4 and
defendant Nos. 3 and 4 had contested the bonafide of
4 2019 SCC OnLine SC 426 5 (2018) 4 SCC 562
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defendant Nos. 1 and 2 to enter into an agreement to
sell on their behalf when there is no general power of
attorney in favour of defendant Nos. 1 and 2. It appears
that both the parties were playing hide and seek. Thus,
the defendants now cannot take the plea that they had
no knowledge that plaintiff Randhir Kaur had executed
any power of attorney in favour of Dhanwant Singh. The
plaintiff approached the Advocate, purchased the stamp
for filing the suit and filed the suit for specific
performance and there is no counter claim on behalf of
the defendants and the plaintiffs were entitled either to a
money decree or forfeiture of their earnest money as per
agreement because there was no readiness and
willingness on the part of the plaintiff. Therefore, it has
to be held that the plaintiff was ready and willing to
perform her part of contract.”
10) The first and the foremost question arises in respect of scope of
interference in second appeal in Punjab and Haryana is governed
by Section 41 of the Punjab Act. 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. Section 41
of the Punjab Act and Section 76 of CPC as it existed prior to April
1, 1977 reads as under:
Section 41 of Punjab Act Section 76 of CPC
Second appeals—(1) An appeal
shall lie to the High Court from every decree passed in appeal by any Court subordinate to the
High Court on any of the following grounds, namely :
(a) the decision being contrary to law or to some custom or usage having the force of law;
(b) the decision having failed to determine some material issue of
100 (1). Save where 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 a High Court on any of the following grounds, namely:
(a) the decision being contrary to law or to some usage having the
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law or custom or usage having
the force of law; (c) a substantial error or defect in the procedure provided by the
Code of Civil Procedure 1908 [V of 1908], or by any other law for
the time being in force which may possibly have produced error or defect in the decision of
the case upon the merits;
(2) An appeal may lie under this
section from an appellate decree passed ex parte.
force of law;
(b) the decision having failed to determine some material issue of law or usage having the force of
law; (c) a substantial error or defect in
the procedure provided by this Code or by any other law for the time being in force, which may possibly
have produced error or defect in the decision of the case upon the
merits. (2) An appeal may lie under this
Section from an appellate decree passed ex parte.
11) The effect of the Constitution Bench judgment in Pankajakshi 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 Section 100 of the CPC are pari
materia.
12) Some of the judgments of this Court dealing with the scope of the
old Section 100 are required to be discussed. In a judgment
reported in Deity Pattabhiramaswamy v. S. Hanymayya &
Ors.6 – Three Judges, while examining the scope of Section 100 of
CPC, held as under:
“15. The finding on the title was arrived at by the learned
District Judge not on the basis of any document of title
but on a consideration of relevant documentary and oral
evidence adduced by the parties. The learned Judge,
therefore, in our opinion, clearly exceeded his jurisdiction
in setting aside the said finding. The provisions of Section
6 AIR 1959 SC 57
Page 8 of 14
100 are clear and unambiguous. As early as 1891, the
Judicial Committee in Durga Chowdhrani v. Jawahir
Singh [17 IA 122] stated thus:
“There is no jurisdiction to entertain a second
appeal on the ground of erroneous finding of fact,
however gross the error may seem to be”. The
principle laid down in this decision has been
followed in innumerable cases by the Privy Council
as well as by different High Courts in this country.
Again the Judicial Committee in Midnapur Zamindari
Co. v. Uma Charan [29 CWN 131] further elucidated
the principle by pointing out:
“If the question to be decided is one of fact it does
not involve an Issue of law merely because
documents which are not instruments of title or
otherwise the direct foundation of rights but are
merely historical documents, have to be construed.”
16. Nor does the fact that the finding of the first
appellate court is based upon some documentary evidence
make it any the less a finding of fact (See Wali
Mohammad v. Mohammad Baksh, 11 Lahore 199). But,
notwithstanding such clear and authoritative
pronouncements on the scope of the provisions of Section
100 of the CPC, some learned Judges of the High Courts
are disposing of second appeals as if they were first
appeals. This introduces, apart from the fact that the High
Court assumes and exercises a jurisdiction which it does
not possess, a gambling element in the litigation and
confusion in the mind of the litigant public. This case
affords a typical illustration of such interference by a
Judge of the High Court in excess of his jurisdiction under
Section 100 of the CPC. We have, therefore, no alternative
but to set aside the decree of the High Court on the
simple ground that the learned Judge of the High Court
had no jurisdiction to interfere in second appeal with the
findings of fact given by the first appellate Court based
upon an appreciation of the relevant evidence. In the
result, the decree of the High Court is set aside and the
appeal is allowed with costs throughout.”
13) Later, in a judgment, reported in Kshitish Chandra Bose v.
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Commissioner of Ranchi7 - three Judges, of this Court held that
the High Court has no jurisdiction to entertain second appeal on
findings of fact even if it was erroneous. The Court held as
follows:-
“11. On a perusal of the first judgment of the High Court
we are satisfied that the High Court clearly exceeded its
jurisdiction under Section 100 in reversing pure
concurrent findings of fact given by the trial court and the
then appellate court both on the question of title and that
of adverse possession. In the case of Kharbuja
Kuer v. Jangbahadur Rai [AIR 1963 SC 1203 : (1963) 1
SCR 456] this Court held that the High Court had no
jurisdiction to entertain second appeal on findings of fact
even if it was erroneous. In this connection this Court
observed as follows:
“It is settled law that the High Court has no
jurisdiction to entertain a second appeal on the
ground of erroneous finding of fact.
As the two courts approached the evidence from
a correct perspective and gave a concurrent
finding of fact, the High Court had no jurisdiction
to interfere with the said finding.”
To the same effect is another decision of this Court in the
case of R. Ramachandran Ayyar v. Ramalingam
Chettiar [AIR 1963 SC 302 : (1963) 3 SCR 604] where
the Court observed as follows:
“But the High Court cannot interfere with the
conclusions of fact recorded by the lower appellate
court, however erroneous the said conclusions may
appear to be to the High Court, because, as the Privy
Council observed, however, gross or inexcusable the
error may seem to be there is no jurisdiction under
Section 100 to correct that error.”
14) In another judgment reported in Gurdev Kaur & Ors. v. Kaki &
7 (1981) 2 SCC 103
Page 10 of 14
Ors.8, the rationale behind permitting second appeal on question
of law after the amendment was considered. It was held that after
the 1976 amendment, the scope of Section 100 has been
drastically curtailed and narrowed down. The Court held as under:
“71. The fact that, in a series of cases, this Court
was compelled to interfere was because the true
legislative intendment and scope of Section 100 CPC
have neither been appreciated nor applied. A class of
judges while administering law honestly believe that,
if they are satisfied that, in any second appeal
brought before them evidence has been grossly
misappreciated either by the lower appellate court or
by both the courts below, it is their duty to interfere,
because they seem to feel that a decree following
upon a gross misappreciation of evidence involves
injustice and it is the duty of the High Court to
redress such injustice. We would like to reiterate that
the justice has to be administered in accordance with
law.
xx xx xx
73. The Judicial Committee of the Privy Council
as early as in 1890 stated that there is no jurisdiction
to entertain a second appeal on the ground of an
erroneous finding of fact, however gross or
inexcusable the error may seem to be, and they
added a note of warning that no court in India has
power to add to, or enlarge, the grounds specified in
Section 100.”
15) The Division Bench of Punjab and Haryana High Court in a
judgment reported in Sadhu v. Mst. Kishni9 set aside the
judgment of the learned Single Bench in an intra court appeal in
terms of the provisions of law as it existed prior to 1976, and held
as under:
8 (2007) 1 SCC 546 9 1980 AIR (Punjab) 85
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“12. The scope of second appeal as envisaged by
section 100 of the Civil Procedure Code and section
41 of the Punjab Courts Act has been a matter of
judicial scrutiny a number of times by this court as
well as by the final court, that is, the Suprems Court
of India. The learned counsel for the appellant has
actually made a reference in this regard to Detty
Paitabhiramaswami v. S. Hanymayya [AIR 1959 SC
57.], Madamanchi Ramappa v. Muthaluru Bojjappa
[AIR 1962 SC 1933.], Bithal Dass Khanna v. Hafiz
Abdul Hai [1969 S.C. Notes 481.] and Afsar
Shaikh v. Soleman Bibi [(1976) 2 SCC 142 : AIR
1976 SC 163.] . These pronouncements; in a
nutshell, lay down that there is no jurisdiction to
entertain a second appeal on the ground of a
erroneous finding of fact, however gross or
inexecusable the error may seem to be. Nor does the
fact that the finding of the first appellate Court is
upon some documentary evidence make it any the
less a finding of fact. A Judge of the High Court has,
therefore, no jurisdiction to interfere in second
appeal with the findings of fact given by the first
appellate court based upon an appreciation of the
relevant evidence. Their Lordships have further
observed that the only ground on which such an
appeal can be said to be competent is where there is
an error in law or procedure and not merely on an
error on a question of fact.
xx xx xx
14. In view of the above discussion, we are
clearly of the view that the learned Single Judge
exceeded his jurisdiction in setting aside the findings
of the fact on issue No. 2. The provisions of section
100 being clear and unambiguous, there was no
scope for interference with those findings. We thus
allow the appeal and set aside the judgment of the
learned Single Judge and affirm the judgment and
decree passed by the District Judge. The parties are,
however left to bear their own costs.”
16) A perusal of the aforesaid judgments would show that the
jurisdiction in second appeal is not to interfere with the findings of
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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.
17) In view of the above, we find that 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. The learned first appellate court has
considered the absence of clause in the first power of attorney to
purchase land on behalf of the Plaintiff; the fact that the plaintiff
has not appeared as witness.
18) A perusal of the findings recorded show that the learned first
appellate court has 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 Dhanwant Singh 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.
19) Learned counsel for the respondents have not raised any argument
that the first appellate court has failed to determine some material
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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 Dhanwant Singh.
20) The agreement to purchase the land was entered into by the
plaintiff through her son Dhanwant Singh 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 Dhanwant Singh but they
disputed the authority of Dhanwant Singh to enter into agreement
to purchase on behalf of his mother. Dhanwant Singh 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,
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Dhanwant Singh appeared with balance sale consideration and
marked himself present.
21) In respect of financial capacity, it has come on record that the sale
deeds (Exh. P-15 and Exh. P-16) were executed by Randhir Kaur
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, Dhanwant Singh.
22) 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.
23) The appeal is allowed. No costs.
.............................................J. (L. NAGESWARA RAO)
.............................................J.
(HEMANT GUPTA) NEW DELHI;
JULY 24, 2019.