Case Note & Summary
The appellants, original plaintiffs, filed two second appeals against the judgment and decree of the lower appellate court in a suit for specific performance of an agreement for sale dated 28th November 1980. The suit property was a plot of land admeasuring 2 Hectares and 53 Ares out of Gat No.778. The trial court had decreed the suit granting specific performance and also an injunction restraining the appellants from obstructing the respondents' possession until execution of conveyance. Both parties appealed: the appellants were aggrieved by the injunction granted against them, and the respondents were aggrieved by the decree for specific performance. The second appeals were admitted on 29th April 1996 but without framing any substantial questions of law. The appellants' counsel sought to frame substantial questions of law on grounds 7, 8, 10, 13, 15, 16 and 17 by invoking the proviso to Section 100(5) CPC. However, the High Court, after hearing both sides, found that the appeals did not involve any substantial question of law. The court noted that the findings of fact recorded by the lower appellate court were not shown to be perverse or based on no evidence. Consequently, the court dismissed both second appeals, confirming the decree of the lower appellate court.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 CPC - The court held that no substantial question of law arose for consideration as the appellants failed to demonstrate any perversity in the findings of fact recorded by the lower appellate court. The court declined to frame substantial questions of law under the proviso to Section 100(5) CPC. (Paras 2-3)
Issue of Consideration
Whether the second appeals involve any substantial question of law warranting interference under Section 100 of the Code of Civil Procedure, 1908.
Final Decision
Both second appeals are dismissed. No order as to costs.
Law Points
- Second appeal
- substantial question of law
- Section 100 CPC
- specific performance
- findings of fact
- perversity
Case Details
2005 LawText (BOM) (02) 314
Second Appeal No. 266 of 1986 and Second Appeal No. 265 of 1986
Shri D.S. Sawant for Appellants, Shri P.K. Dhakephalkar for Respondent nos.1 to 3
Budha Mahadu Bachhav and Sampat Mahadu Bachhav
Shri Vilas Kisanrao Deshmukh, Smt. Vatslabai Kisanrao Deshmukh, Ravindra Kisanrao Deshmukh, and Malanbai K. Deshmukh (since deceased by her legal heirs)
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Nature of Litigation
Second appeals against decree in suit for specific performance of agreement for sale.
Remedy Sought
Appellants sought to set aside the decree of the lower appellate court and restore the trial court's decree without the injunction, or alternatively, to frame substantial questions of law.
Filing Reason
Appellants were aggrieved by the grant of injunction against them by the trial court and the dismissal of their appeal by the lower appellate court.
Previous Decisions
Trial court decreed the suit for specific performance and granted injunction; lower appellate court modified the decree; both parties appealed.
Issues
Whether the second appeals involve any substantial question of law under Section 100 CPC.
Submissions/Arguments
Appellants' counsel submitted that substantial questions of law should be framed on grounds 7, 8, 10, 13, 15, 16 and 17 under proviso to Section 100(5) CPC.
Respondents opposed the framing of substantial questions of law.
Ratio Decidendi
In a second appeal under Section 100 CPC, the High Court can interfere only if a substantial question of law arises. Findings of fact recorded by the lower appellate court, unless shown to be perverse or based on no evidence, do not give rise to a substantial question of law. The court declined to frame substantial questions of law as the appellants failed to demonstrate any such question.
Judgment Excerpts
After having heard the Advocates appearing for the parties from the facts which are on record I am satisfied that such exercise is not warranted.
The second appeals are filed by the original plaintiffs. The suit is for specific performance of agreement for sale dated 28th November 1980 executed by the Respondents in favour of the Appellants.
Procedural History
The trial court decreed the suit for specific performance and granted injunction. Both parties appealed to the lower appellate court. The lower appellate court modified the decree. The appellants filed two second appeals in the High Court, which were admitted on 29th April 1996 without framing substantial questions of law. The High Court heard the appeals and dismissed them on 14th February 2005.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100, Section 100(5)
