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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

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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

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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.