M/S. SHIVALI ENTERPRISES versus SMT. GODAWARI (DECEASED) THR. LRS. AND OTHERS

Citation: [2022] 11 S.C.R. 273 · Decided: 13-09-2022 · Supreme Court of India · Bench: BHUSHAN RAMKRISHNA GAVAI · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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M/S. SHIVALI ENTERPRISES
v.
SMT. GODAWARI (DECEASED) THR. LRS. AND OTHERS
(Civil Appeal Nos. 8904-8907 of 2010)
SEPTEMBER 13, 2022
[B. R. GAVAI AND C. T. RAVIKUMAR, JJ.]
Punjab Courts Act, 1918: s. 41 – Second Appeals –
Jurisdiction of the High Court under – Held: Second appeal is not
a forum where the court is to re-examine or re-appreciate the question
of fact settled by the trial court or the appellate court – Though in
view of s.41, it is not necessary to frame a substantial question of
law, the jurisdiction of the High Court under second appeal cannot
be exercised for re-appreciation of evidence – Jurisdiction u/s. 41
would be available only when there is a substantial error or defect
in the procedure provided by the CPC or by any other law for the
time being in force – On facts, agreement to sell land between the
parties, for Rs. 1,65,000/- out of which Rs. 1,50,000/- duly received
by the respondents and the remaining was to be paid at the time of
execution of sale deed – Possession delivered to the appellant –
Respondents were required to obtain Income Tax Clearance
Certificate and to also get the revenue records mutated in the name
of the appellant, however, the appellants came to know that the
respondents were trying to create third party rights – Appellant then
filed a suit for specific performance, which was decreed in favor of
the appellant by the trial court and the appellate court, however,
set aside by the High Court in second appeal – On facts, trial court
as well as the appellate court had specifically found on the basis of
the evidence that, though as per the terms and conditions of the
agreement to sell, the sale deed was to be executed only after the
respondents obtained the ITC Certificate and got the revenue records
corrected, the appellant was compelled to file the suit since the
respondents were trying to alienate the suit property – Concurrent
findings of the trial court and the appellate court that the appellant
was justified in filing the suit could not have been faulted with –
Judgment of the High Court quashed and set aside.
[2022] 11 S.C.R. 273
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SUPREME COURT REPORTS
[2022] 11 S.C.R.
Allowing the appeals, the Court
HELD: 1. Even when a court exercises jurisdiction under
Section 41 of the Punjab Act, it cannot interfere with the findings
of fact in second appeal on the ground that the said findings are
erroneous, howsoever gross or inexcusable the error may seem
to be. The findings of fact would also include the findings on the
basis of documentary evidence. The jurisdiction under Section
41 of the Punjab Act would be available only when there is a
substantial error or defect in the procedure provided by the CPC
or by any other law for the time being in force. Though it is not
necessary to formulate a substantial question of law, the
jurisdiction under Section 41 of the Punjab Act would permit only
such decisions to be considered in second appeal which are
contrary to law or to some custom or usage having the force of
law, or when the courts below have failed to determine some
material issue of law or custom or usage having the force of law.
Second appeal is not a forum where the court is to re-examine or
re-appreciate the question of fact settled by the trial court or the
Appellate Court. Though in view of Section 41 of the Punjab Act,
it is not necessary to frame a substantial question of law, the
jurisdiction of the High Court under second appeal cannot be
exercised for re-appreciation of evidence. [Paras 15, 17][282-D-
F; 284-C-D]
2.1 In the written statement, the respondents stated that
they had executed the Power of Attorney and one Mukhtar, an
agent of the appellant, was required to take all the requisite steps
to get the revenue records corrected. A perusal of the written
statement would reveal that the respondents had denied that the
appellant-plaintiff was in possession of the suit property. The
respondents-defendants further asserted their right to alienate
the suit property, if they so desired. [Paras 20-21][285-H; 286-
A-B, D]
2.2 The trial court, after perusal of the evidence, came to a
finding that the execution of the agreement(s) to sell was admitted
by the respondents-defendants. The trial court further came to a
specific finding of fact that the appellant-plaintiff was always ready
and willing to perform his part of contract. It found that, upon the
respondents-defendants complying with the conditions as
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