RAJESHWARI versus PURAN INDORIA

Citation: [2005] SUPP. 2 S.C.R. 1016 · Decided: 25-08-2005 · Supreme Court of India · Bench: G.P. MATHUR · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
RAJESHWARI 
V. 
PURAN INDORIA 
AUGUST 25, 2005 
B 
[G.P. MATHUR AND P.K. BALASUBRAMANYAN, JJ.] 
Code of Civil Procedure, 1908 : 
Section 100-Second appeal arising out of suii for specific performance 
C of agreement for sale of immovable property-Summary dismissal of the same 
by High Court on grounds that it did not invol~e any substantial question of 
/aw-Propriety of-Held, improper-Questiqn whether a court could exercise 
discretion for decreeing specific performance, could be a question of law that 
substantially affects the rights of parties-Hence, High Court not justified in 
dismissing the second appeal by a non-speaking order-Matter remanded 
D back for fresh disposal-Specific Relief Act, 1963--Sections JO, 16 & 20. 
Sections 100 & 115-Jurisdiction of High Court to interfere in second 
appeal and in revision-Suggestion given to legislature to consider restoring 
Section 115 as it existed prior to its amendment by Act 2212002 and confer 
E a broader right of second appeal as it existed prior to introduction of the 
concept of "substantial question of law" into Section JOO by Act 10411976. 
Respondent filed suit for specific performance of agreement for sale 
of immovable property. Trial Court decreed the suit. The decision was 
upheld in appeal under Section 96 CPC. Appellant filed second appeal 
F before High Court under Section 100 CPC which summarily dismissed the 
same on grounds that the appeal did not involve any substantial question 
of law and lacked merit. Hence the present appeal. 
Allowing the appeal and remanding the matter back to High Court, 
G the Court 
HELD : 1. The High Court was not justified in dismissing the second 
appeal by a non-speaking order. 
2.1. The right to specific performance of an agreement for sale of 
H immovable property, when filed, raises questions of substantial importance 
1016 
RAJESHW ARI v. PURAN INDORIA 
1017 
between the parties as to whether the plaintiff has satisfied the requirements 
of Section 16 of the Specific Relief Act, whether it is a case in which specific 
performance of the contract is enforceable in terms of Section 10, whether 
in terms of Section 20 of the Act, the discretion to decree specific 
performance should be exercised by the court and in some cases, whether 
A 
the suit was barred by limitation and even if not, whether the plaintiff has B 
been guilty of negligence or latches disentitling him to a decree for specific 
performance. These questions, by and large, may not be questions of law 
of general importance. But they cannot also be considered to be pure 
questions of fact based on an appreciation of the evidence in the case. They 
are questions which have to be adjudicated upon, in the context of the 
relevant provisions of the Specific Relief Act and the Limitation Act (if C 
the question of limitation is involved). Though, an order in exercise of 
discretion may not involve a substantial question of law, the question 
whether a court could, in law, exercise a discretion at all for decreeing 
specific performance, could be a question of law that substantially affects 
the rights of parties in that suit. Therefore, in the case on hand, the High D 
/ C?urt was not justified in dismissing the second appeal in the manner in 
wliich it has done. [1022-H; 1023-A, B, C] 
Raghunath Prasad Singh v. Deputy Commissioner of Patabgarh, 54 
Indian Appeals 126 PC; DeputyCommissionerv. Rama Krishna. AIR(l953) 
SC 521 and Cfmni/al V. Mehta and Sons Ltd v. Century Spinning and E 
Manufacturing Co. Ltd, AIR (1962) SC 1314, referred to. 
2.2. The proper course to adopt is to set aside the judgment and 
decree of the High Court in· the second appeal and remand the second 
appeal to the High Court for a consideration of the question whether any F 
substantial question of law is involved in the case in the light of the 
pleadings and the facts established and if it arises, to decide whether any 
interference in second appeal under Section 100 CPC is warranted or 
justified. (1023-E, FJ 
3.1. The amendment brought to Section 100 of the Code with effect 
from 1.2.1977 by Act I 04 of 1976, has really not advanced the cause of 
justice. Earlier, interference could be had under Section 100 of the Code if 
the decision was contrary to law or some usage having the force of law; or 
G 
the decision had failed to determine some material issue of law or usage 
having the force of law; or suffered from a substantial error or defect in H 
• 
1018 
SUPREME COURT REPORT

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