2019 INSC 0596 Page 1 of 14 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO . 5822 O F 2019 (A RISING OUT OF S LP (C IVIL ) N O. 32 979 OF 201 6) RANDHIR KAUR .....APPELLANT(S) VERSUS PRITHVI PAL SINGH & ORS. .....RESPONDENT(S) J U D G M E N T HEMANT GU PTA , J. Leave granted. 2) The appellant is plaintiff who has sought specific performance of agreement to se ll dated November 5, 2004 in respect of land measuring 19 3 kanals 18 marla s at the ra te of Rs.1,27,000/ - per acre . A s um of Rs.12,5 0,000/ - and Rs.1,00,000/ - was paid to defendant Nos. 1 and 2 as earnest money at the time of exec ution of agreement to sale. The date of registration of sale deed was fixed as January 30 , 2005. The s uit for spec ific performance was filed on Apr il 3, 2006 . 3) Th e learned trial court vide judgment and decree dated April 13, Page 2 of 14 2010 decreed the suit. The appeal against said judgment and decree remained un successful when such appeal was dismissed on August 11 , 2012. However, in the second appeal , th e d ecree for specifi c performance of the ag reement was declined but instead decree for recovery of Rs.13,50,000/ - paid by the appellant along with interest at th e rate of 12% was granted . The High Court held that plaintiff was ready a nd w illi ng to perform th e agre emen t and that Dhanwant Singh was not the at torney 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) th rough LRs & Ors. v. Cha ndrik a & Or s.1, su bst antial que stion of law may not be required to be framed but in second appeal, the f inding of fact recorded cannot be inter fered with even in terms of Section 41 of the Punjab Courts A ct, 1918 2. 5) It is argued that th e High Court has not reco rded any fin din g which sa tisfi es the test s 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 i n respect of land in question but in the subsequen t power of attorney date d Se ptember 14, 20 05, the appe llant 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 ’ Page 3 of 14 anywhere in her name. It is arg ued that the agreement dated November 5, 2004 was e ntered into by the appe llan t throug h h er son Dha nwant Singh in whose favour registere d power of atto rney was executed on September 14, 2005. It is the said Dh anwant Singh who has paid the amount to the de fendants . The pl ea of the defendants that D hanwant Sin gh was not author ised to act on be half of hi s mother is wh olly untenable as the defendants having received the amount from Dhanwant Singh . The finding that s um of Rs.13,50 ,000/ - was paid by the appellant through Dhanw ant Singh has been acc epted by the High Court when t he C ourt recorded th e f ollo win g finding s: “17. Adverting to the facts of th e case in hand, agreeme nt of sale dated November 05, 2004 (Ex.P -1) was executed by appellants /defendants No. 1 and 2 on their beh alf as well as on behalf of defendants No. 3 and 4, on r eceipt of a sum of `13. 5 lacs as earnest money. Though, amount of earnes t money has been disput ed by learned counsel for appellants -defendants No. 1 and 2 but there is no cogent and convincing evidenc e in this regard. So, it cannot be safely concluded that agreement o f s ale (Ex. P-1) was executed by defendants No.1 and 2 on rec eipt of a sum of Rs. 13.5 lacs as an earnest money. Execution of document has also not been otherwise disputed by appellants - defe ndants and respondent -plaintiff. Otherwise also, no amou nt of oral e vid ence can be taken into consideration and pales into insig nificance, in view of a r ecital contained in document. ” 6) In view of the findings recorded , it is argued that the High Court comm itted material illegality in declinin g the relief of spe cific perfor man ce o n th e gr ound that Dhanwant Singh was not authori sed to act on behal f of the appellant and, that the appellant has not appeared as a witness herself. Page 4 of 14 7) It is also argued that defendants have not ra ised any plea in the written statemen t that Dhanwant S ing h w as not the authori sed representative of the plaintiff to enter into agreement on her behalf . 8) On the other hand, Mr. Neeraj Kumar Jain, lea rned senior c ounsel appearing fo r the defendants, submitted that first power of attorney dat ed September 29, 199 9 regis ter ed on January 18, 2000 does not relate to land in qu estion nor it e mpowers Dhan want Singh to p urchase any other land. The power of attorney executed in favour of Dhanwant Singh on September 14, 200 5 emp ow eri ng him to purchase movable or immova ble pr ope rty but such power of attor ney relate s to purchase in future and no t in respect of the agreement already executed. It is argued that plaintiff has never intimated the defendants about Dhanwant Singh , as being the attorne y of the plaintiff. The H igh Co urt was justified in interfering in the seco nd appeal as the decision of the cou rts below was contrary to law as the finding s recorded by the trial court and the appellate court is not based up on facts on record. 9) This Court in Kir odi ( since deceas ed) th roug h his LR v. Ram Parkash & Ors. 3 ha s held th at judgment s in Chand Kaur (D) 3 2019 SCC On Line SC 759 Page 5 of 14 through L Rs. v. Mehar Kaur (D) through LRs 4 and Surat Singh (D) v. Siri Bhagwan & Ors. 5, are contrary to the Constitution B ench judgment in Pankajakshi case , therefore, not corre ct law. It, thus, transpires that i n terms of the Consti tu tion Ben ch judgment, substantial question s of law are not required to be framed in second appeal but , the juris diction of the High Court is not to reverse the finding of fact s in terms of Section 41 of the Punjab Act . The jurisdicti on of the High Court in sec on d app eal is circumscribed by the pro visio ns of Section 41 of the Punja b Act. The f irst ground is that decisi on being contrary to law or to some custom or usage having t he force of law. The a rgument of Mr. Jain is that decisio n of the first appell at e co ur t is contrary to law as the plain tiff has f ailed to prove readiness an d willingness to perform the agreement. The readiness and willingness to perform a contract is a finding of fact on the b asis of oral and documentar y eviden ce led by the parties . The first appellate court has recorded the fol lowing findings on the questi on of readiness and willingness of the plain tiff: “19. … Now what is to be seen if both the parties appeared to be at fau lt because when the agreemen t to se ll has been provide and the defend ant Nos. 1 and 2 have also shown that they are entering into an ag reement on behalf of defendant N os. 3 a nd 4 being their power of attorney but till date the defendant Nos. 1 and 2 failed to produce any power of att orney i n their favour on beh alf of defend ant Nos. 3 and 4 and defendant Nos. 3 and 4 had contested the bona fide of 4 2019 SCC OnLine SC 426 5 (2018) 4 SCC 562 Page 6 of 14 defendant Nos. 1 and 2 to enter into an agreement to se ll on their behalf when there is no general power of attor ney in favour of defe ndant N os. 1 a nd 2. It appears tha t both the pa rties were playing hid e and seek. Thus, the defendants now cannot take the plea that th ey had no knowled ge that plaintiff Randhir Kaur had executed any power of attorney in favour of Dha nwant Singh. The plaintiff approac hed the Advocate, pur ch ased the s tamp for filing the suit and filed the suit for specific performanc e an d there is no counter claim on beha lf of the defendants and the plaintiffs were entitled either to a money decree or forfeiture of their earnest money a s per agreement becau se the re was no readiness and willingness on the part of the plaintiff. The ref ore, it has to be held that the plainti ff was ready and willing to perform her part of contract. ” 10) The first and the for emost question arises in respect of scope of interference in se cond ap peal in Punjab and Haryana is governed by Section 41 of the Punjab Act. Prior to amendm ent in the Code of Civil Pro cedure vide CPC (Amendment) A ct, 19 76 w.e.f. February 1, 1977, the scop e of interference in second appeal un der the Punjab Act as well as u nder the Code of Civil Procedure as it existed before the amendment was on similar grounds. Section 41 of the Pu njab Act and Section 76 of CPC as it existed prior to April 1, 1977 reads a s under: Section 41 of Punjab Act Se ction 76 of C PC Seco nd appeals — (1) An appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court o n any of the following grounds, namely : (a) the decision being c ontrary to law or to some custom or u sage having the fo rce of law ; (b) the decision having failed to determine some material issue of 100 (1). Save where otherwi se expressly provi ded in the bo dy 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 subordin ate to a High Court on any of th e following grounds, namely: (a) t he decision being con trary to law or to some usage having the Page 7 of 14 law or custom or usage having the force of law ; (c) a s ubstantial 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 hav ing 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 f orce, which may possibly hav e produced error or defect in the decision of th e case upon the merits. (2) An appeal may lie under this Section from an appella te decree passed ex p arte . 11) Th e effect of the Constit utio n Bench judgment i n Pankajakshi is that in second appeal, the scope of interference within the Punjab and Haryana High Court wou ld be the same as C ode of Civil Procedure existed prior to 1976 amendment . The provisions of Section 41 of the Punjab Act and of Section 100 of the C PC are pa ri materia . 12) Some of t he judgments of this Court dealing with the scope of the ol d Section 100 are requi red to be discussed. In a judgment reported in Deity Pattabhiramaswamy v. S. Hanymay ya & O rs. 6 – Three Judges , while examinin g the s co pe o f Sec tion 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 lear ned Judge , therefore, in our opinion, clearly e xceeded his jurisdiction in setting aside the said finding. The provisions of Section 6 AIR 1959 SC 57 Page 8 of 14 100 are clear and unambiguous. As early as 1891, the Judicial Committee i n Durga Chowdhrani v. Jawahir Singh [17 I A 122] st ated thus : “There is n o jurisdiction to enterta in 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 follo wed in innumerable cases by the Privy Cou ncil as w ell as by different Hi gh 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 d ecided is one of fact it does not involve an Issue of law m erely because documents which are not i nstruments 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 f inding of the first appellate court is ba sed upon some docu m entary evide nce make it any the less a finding of fact (See Wali Mohamma d v. Mohammad Baks h, 11 Lahore 199). But, notwithstanding such clear and authoritative pronouncements on the scope of the pr ovisions of Section 100 of the CPC, some learned J udge s of the High Cour ts 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 posses s, a gambling element in the litigation a nd confus ion in th e mind of the litigant public. This cas e 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, theref ore, no alternative but to set aside the decree of the High Court on the simple ground that the le arned 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 app reciation of the relevant evidence. In th e result, the decr ee of the Hig h Court is set aside and t he appeal is allowed with costs throughout .” 13) Later, in a judgment , reported in Kshitish Chandra Bose v. Page 9 of 14 Commissioner of Ranchi 7 - three Judge s, of this Cou rt held that the High Court has no jurisdict ion to entert ai n se cond appeal on findings of fact even if it was e rroneous. 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 ex ceeded its jurisdiction under Section 100 in rever sing pu re concurrent findings of fact given by the tria l court and the then appellate court both on the qu estion 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 th e High Court had no jurisdiction to entertain se cond appeal on findings of fact even if it was erro neous. In this connection this Court observed as follows: “It is settled law that the High Court has no jurisdiction to entertain a second appea l on t he grou nd of erroneous finding of fact. As the two cou rts approached the evidence from a correct perspecti ve and gave a concurrent finding of fact, the High Court had no jurisdiction to interfere with the said finding.” To the same effect is anothe r deci sion of this Court in the case of R. Ramachandran Ayyar v. Ramalingam Chettiar [AIR 1963 SC 302 : (1963) 3 S CR 604] where the Court observed as follows: “But the High Court cannot interfere with the conclus ions of fact recorded by the lower appellate court , howev er erroneous the said conclusions may appear to be to the High Court, because, as the Privy Council o bserved, however, gross or inexcusable the error may seem to be there is no jurisdiction under Sec tion 100 to correct that error.” 14) In anothe r judg ment re po rted in Gurdev Kaur & Ors. v. Kaki & 7 (1981 ) 2 SCC 103 Page 10 of 14 Ors. 8, th e rationale behind permitting second ap peal on question of law after the amendment was considered. It was held that after the 1976 amendment , the scop e of Section 100 has been drastically curtai led an d narro we d down. The Court h eld as under: “71. The fac t 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 neit her been appreciated nor applied. A class of judge s 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 interf ere, because th ey 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 accorda nce wi th law . xx xx xx 73. The Judicial Committee of the P rivy Council as early as in 1890 stated that there is no jurisdiction to entertain a second appeal on the ground of an erroneous fi nding of fact, howe ver gross or inexcusable the error may seem to be, and th ey 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. Kishni 9 set aside the judgme nt of the lea rn ed Single Bench in an intra court appeal in ter ms of the provisions of law as it existed prior to 1976, and held as under: 8 (2007) 1 SCC 546 9 19 80 A IR (Punjab) 85 Page 11 of 14 “12 . The scope of second appeal as envisaged by section 100 of the Civil P rocedure Code and section 41 of the Punjab C ourts 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 I ndia. The learned counsel for the appellant has actually made a refer ence in this regard to Detty Paitabhiramasw ami v. S. H an ymayya [AIR 1959 SC 57.] , Madamanchi Ramappa v. Mut haluru Bojjappa [AIR 1962 SC 1933.] , Bithal Dass Khanna v. Hafiz Abdul Hai [19 69 S.C. Notes 481.] and Afsar Shaikh v. Soleman Bibi [(1976) 2 SCC 142 : AIR 1976 SC 163.] . These pronouncemen ts; in a nuts he ll, lay down that there is no jurisdiction to enter tain 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 s ome doc um entary evidence make it any the less a finding of f act. A Judge of the High Court has, therefore, no jurisdiction to interfere in s econd appeal with the findings of fact given by the first appellat e court based upon an appreciation of the re levant eviden ce . Their Lordships have further observed that the on ly 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 quest ion of fact. xx xx xx 14. In view o f the a bo ve discussion, we are clearly of the view that the learned Single Judge exceeded his jurisdiction in setting aside the findings of the fa ct on issue No. 2. The provisions of section 100 being clear and unambiguous, there was no scope for int erfere nce wit h those findings. We thus allow the appeal and set as ide the judgment of the learned Single Judge and affirm the judgment and decree passed by the District Judge. The parties are, however left to bea r their own costs .” 16) A per usal of the afor esaid judgment s would show that the jurisdiction in second appeal is not to interfere with the findings of Page 12 of 14 fact on the ground that findings are errone ous, however, gross or inexcusable the error ma y s eem to be . The f inding s of fact will also inc lude the findi ngs 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 vie w of the abov e, we find that th e High Co urt cou ld not inter fere wi th the findings of fact recorded a fter appreciation of evidence merely because the High Court though t that another view wo uld be a better view. The learned first app ellate court has con sider ed the absenc e of clause in the first po wer of at torne y to purchase land on behalf of the Plaintiff ; the fact that the plaintiff has not appeared as witness . 18) A per usal of the finding s reco rded show that the learn ed first appellate court has retur ned a fin ding that the pl aintiff was ready and wi lling to perf orm the contract and that the defendants cannot take pl ea that they were no t aware that Dhanwant Singh was power of attorney holder . Therefo re, the finding s recorded by the first appellate cour t ca nnot be said to be co ntr ary to law which may con fer j uri sd iction on the High Court to interfere with the finding s of fact recorded by the first appellate court. 19) Learned cou nsel for the responden ts have not rai sed any argument that the first appellate cou rt has f ailed to dete rmi ne some material Page 13 of 14 issue of law whic h may c onfer jurisdiction on the High Court to interfere with the findings of f act nor there is any substantial error or defect in the pro cedure provided by the Code of Civil Procedure or by any oth er law for the time b ein g in force which may pos sibly have produc ed error or defect in the decision on merits. Therefore, the High Court was not within its jurisdiction to interfere with the find ing s of fact only for the reason that plaintiff has fail ed t o prove power of atto rne y in favour of Dhanwant Sin gh . 20) The agreement to p urchase the land was entered into b y the plain tiff through her son Dhanwant Singh when a sum of Rs.13,50,000/ - was paid to the defendants. T he defendants could accept a sum o f Rs .13,50,0 00/ - from Dha nwa nt Singh but they disput ed th e a ut hority of Dhanwant Singh to enter i nto agr eement to purchase on behalf of his mother . Dhanwa nt Singh had appeared in the office of the Sub Registrar for execution of the sale deed on Jan uary 31 , 20 05 with the plea that he has b rought the balance sale cons ideration but the defe ndants have not turned up . In fact , the defendants relied upon their p resence before the Sub Registrar on January 28, 2005 i.e. even before Jan uary 30, 2005 , i.e. th e date on which th e exe cution o f s ale deed was fixed. Jan uary 30, 2005 was Sunday . Therefore, in terms of prov isions of Section 10 of the General Clauses Act, 1897, it will be the next working day i.e. January 31, 20 05 which will be deemed to be the date for p er fo rma nce o f the agreeme nt and on the said date, Page 14 of 14 Dh anwan t Sin gh appeared with balance sale con sideration and ma rked himself present. 21) In respect of fina ncial capacity, it has come o n record that the sale deed s (Exh. P -15 and Exh. P -16) were ex ecuted by Ran dhir Kaur prior to Ja nuary 30, 20 05 for m akin g pa yment to t he d efendants to execute the s ale deed as per terms and condition s of the agre ement. Therefore, the High Court was not within its jurisdiction to interfere in se cond appeal only for t he reason tha t on the date of a gre ement, the re was no spec ific powe r of attorney in favour of son of t he plaintiff , Dhanwant Singh. 22) In vi ew of the above, the judgment of the High Court is set aside and the decree passed by the lower appellate court is res tored. Th e ap pell ant is grante d t wo m onths ’ time to pay b alan ce sa le co nside ration to defendant Nos. 1 and 2 and upon receiving the amount, the defendants shall execute the sale deed in favour of th e plaintiff. If the defendants fail to receive the amount , the pla inti ff will be at lib ert y to deposit the amount w ith the exec uting court and seek execution of the decree in accordance with law. 23) The appeal is allowed. No costs. ..................... ............... .........J. (L. NAGESW ARA RAO ) .................. .... ................ .... ...J . (HEMANT GUPTA ) NEW DE LHI; JUL Y 24 , 201 9.