RANDHIR KAUR versus PRITHVI PAL SINGH & ORS.

Citation: [2019] 9 S.C.R. 776 · Decided: 24-07-2019 · Supreme Court of India · Bench: L. NAGESWARA RAO · Disposal: Appeal(s) allowed

Cited by 6 judgment(s) · cites 3 · see the full citation network in Lexace

Judgment (excerpt)

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SUPREME COURT REPORTS
[2019] 9 S.C.R.
RANDHIR KAUR
v.
PRITHVI PAL SINGH & ORS.
(Civil Appeal No. 5822 of 2019)
JULY 24, 2019
[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]
Punjab Courts Act, 1918 – s.41 – Second appeals – Scope of
interference – Appellant-plaintiff sought specific performance of
agreement to sell dtd. Nov. 5, 2004 in respect of land measuring
193 kanals 18 marlas @ Rs.1,27,000/- per acre – 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 – Suit decreed –
Appeal thereagainst – Dismissed – In the second appeal, the decree
for specific performance of the agreement was declined inter alia
holding that ‘DS’, son of the appellant was not the attorney to act
on behalf of the appellant – Held: In second appeal, the scope of
interference within the Punjab and Haryana High Court would be
the same as CPC existed prior to 1976 amendment – Provisions of
s.41 of the 1918 Act and of s.100, CPC are pari materia – Jurisdiction
in second appeal is not to interfere with the findings of fact on the
ground that findings are erroneous, however gross or inexcusable
the error may seem to be – Findings of fact will also include the
findings on the basis of documentary evidence – 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 – 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 – Readiness and willingness
to perform contract is a finding of fact on the basis of oral and
documentary evidence led by the parties – First appellate court
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 ‘DS’ was the power of attorney holder – 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
   [2019] 9 S.C.R. 776
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with the findings of fact recorded by the first appellate court – High
Court was not within its jurisdiction to interfere with the findings of
fact only for the reason that plaintiff failed to prove power of
attorney in favour of ‘DS’ – Judgment of the High Court set aside –
Decree passed by the lower appellate court restored – Code of Civil
Procedure, 1908 – s.100 – Code of Civil Procedure (Amendment)
Act, 1976 – General Clauses Act, 1897 – s.10.
Allowing the appeal, the Court
HELD : 1.1 The jurisdiction of the High Court in second
appeal is circumscribed by the provisions of Section 41 of the
Punjab Courts Act, 1918. 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.
[Para 10] [783-C-D]
1.2 The effect of the Constitution Bench judgment in
Pankajakshi case 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 unamended
Section 100 of the CPC were pari materia. The jurisdiction in
second appeal is not to interfere with the findings of 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. In view of the above, 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. A perusal of the findings recorded
show that the first appellate court 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
‘DS’  was power of attorney holder. Therefore, the findings
recorded by the first appellate court cannot be said to be contrary
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