& Anr Vs. Vishwanath Singh & Ors  Insc 379 (1 August 2005)
Pasayat & H.K. Sema
out of SLP( C) No. 1371/2005) ARIJIT PASAYAT, J.
in this appeal is to the judgment rendered by learned Single Judge of the Allahabad
High Court, Lucknow Bench in a Second Appeal under Section 100 of the Code of
Civil Procedure, 1908 (in short 'CPC'). The plaintiffs- respondents herein had
filed a suit for specific performance of contract dated 30.7.1977 as well as
for cancellation of sale deed dated 14.5.1980. According to the plaintiffs a
sum of Rs.2,500/- had been paid as advance money and the consideration for sale
was fixed at Rs.10,000/-. Thus the balance amount of Rs.7,500/- was to be paid
at the time of execution of sale-deed. The suit was contested by the present
appellant-defendant No.3. The present appellant along with defendant No.1
(respondent No.4) contended that the permission to sell the land had been
obtained from the Settlement Officer (consolidation) during the year 1980.
the plaintiffs were requested to purchase the land, they did not agree to get
the sale deed executed.
defendant No.1-Jogendra Singh executed the sale deed in favour of the present
appellant and respondent No.5.
court decreed the suit and directed for specific compliance of the agreement to
sale, in dispute, dated 30.7.1977 and cancellation of sale deed dated 14.5.1980
along with other reliefs. The matter was carried in appeal before the learned
Additional District Judge, Gonda who allowed the appeal and set aside the
judgment of the trial court and directed dismissal of the relevant suit.
to be noted that the trial court had held that the plaintiffs had proved that
they were ready and willing to perform their part of the contract. Before the
first Appellate Court, two stands were taken by the defendants.
it was submitted that there was change in the area and description of the land
in question and though the agreement was purportedly for 1 acre 99 decimals,
after completion of the consolidation proceedings the area had become 2 acres
and 2 decimals. The area of some chaks had decreased and some had increased. It
was further submitted that materials on record did not justify the stand of the
plaintiffs that they were ready and willing to perform their part of the
contract. After analyzing the evidence the first Appellate Court recorded two
findings. Firstly, it was observed that the description of the properties had
completely changed and therefore the suit for specific performance was liable
to be dismissed. Reliance was placed on a decision of this court in Piarey Lal
vs. Hori Lal (1977 (2) SCC 221) for adopting such view. It was also concluded
that the materials on record did not justify the conclusion that the plaintiffs
were ready and willing to perform their part of the contract. As noted above,
the appeal was allowed and the suit was dismissed. The plaintiffs carried the
matter in second appeal before the High Court. The following question was
formulated for adjudication:- "Whether in respect of land regarding which
the agreement to sell had taken place, was a bit increased or decreased in
consolidation proceeding, amounts to change in property and hence the said
agreement can be enforced by suit for specific performance of contract?"
High Court held that there was a minor variation in the area. Referring to a
decision of this Court in Smt. Baikunthi Devi and Ors. v. Mahendra Nath and Anr.
(AIR 1977 SC 1514) it was held that the variation was minor and that too on
account of allotment of a new chak. There was no bar to a decree being granted.
It appears that the High Court recorded the findings on the appreciation of
evidence as done by the first Appellate Court. It observed that the first Appellate
Court is under a duty to examine evidence on record and when it refuses to
consider important evidence having direct bearing on the disputed issue and the
error which arises is of a magnitude, it gives rise to a substantial question
of law. With reference to various judgment of this Court, it was noted that
where the findings of lower courts are vitiated by non-consideration of
relevant evidence or by an essentially erroneous approach to the matter, the
High Court is not precluded from recording proper findings. Therefore, the
erroneous findings if recorded by the Court below can be set aside by the High
Court in second appeal.
counsel for the appellant submitted that the first Appellate Court had recorded
positive findings to the effect that the plaintiffs had failed to establish
that they were ready and willing to perform their part of the contract. No
question of law was formulated in this regard.
contrary the only question which was formulated related to the effect of minor
variation in the area or description of the property. Entire discussions made
by the High Court appear to be in relation to that question.
without formulating the question regarding the readiness and willingness of the
plaintiffs to perform their part of the contract, the High Court could not have
allowed the second appeal.
response, learned counsel for the respondents submitted that the High Court had
considered the question as regards effect of court of facts not considering
relevant evidence or adopting essentially erroneous approach of the matter. The
conclusions were actually in relation to the findings recorded by the first
Appellate Court regarding the readiness and willingness aspect. Merely because
the question has not been formulated, that should not stand in the way of
affirming the decision of the High Court. It was submitted that the present
appellant did not take any plea in this regard before the High Court and
therefore should not be permitted to make any grievance.
the amendment of CPC, Section 100(5) reads as follows:
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.
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." As a bare perusal of the provision shows,
nothing in sub-section (5) takes away or abridges power of the High Court to
hear for reasons to be recorded, the appeal on any other substantial question,
not formulated earlier, if it is satisfied that the case involves such
instant case, the only question that was formulated has been quoted above.
Undisputedly, there was no other question formulated regarding the findings of
the Appellate Court on the readiness and willingness aspect. In terms of sub-section
(5), the High Court could have heard the appeal on a question not formulated if
for reasons to be recorded (emphasis supplied) if it was of the view that the
case involves such question. In the instant case no such reason has been
recorded. The memorandum of appeal filed before the High Court also does not
indicate that any specific question was formulated in that regard.
Lal's case (supra) relied upon the first Appellate Court was clearly
distinguishable on the facts and the High Court has rightly observed that the
decision in Smt. Baikunthi Devi's case (supra) was applicable on the facts of
the case. We, therefore, find no substance in the plea raised by learned
counsel for the appellant that the High Court was not justified in answering
the question formulated in favour of the respondents. But in view of the fact
that no question was formulated regarding the findings recorded by the first
Appellate Court on the other aspect, the High Court could not have set aside
the judgment of the first Appellate Court in its entirety. On that ground
alone, the present appeal succeeds and the judgment of the High Court in second
appeal is set aside. This piquant situation has arisen because the appellant
before the High Court was not vigilant. It was not for the defendants who were
respondents before the High Court to invite any finding against them by
agitating an issue which was decided in their favour by the first Appellate
Court. As the findings recorded by the first Appellate Court were essentially
factual, the High Court was required even otherwise to show as to how those
were erroneous and which relevant material had been left out of consideration
and/or which irrelevant material was taken into consideration. It has not been
done. The High Court only referred to the principles on law, about which there
is no dispute, without specifically pointing out which conclusions of the first
Appellate Court suffered from deficiencies and in what way. That being so, the
High Court's judgment, even if we accept that appropriate question could have
been formulated would not have altered the situation. The appeal is allowed,
with no order as to costs.