Case Note & Summary
The appellant, original defendant, filed a second appeal under Section 100 of the Code of Civil Procedure, 1908, challenging the judgment of the first appellate court dated 16-09-2010, which reversed the trial court's decree dismissing the suit for specific performance. The respondent-plaintiffs had sued for specific performance of an agreement to sell agricultural land. The trial court dismissed the suit holding that the plaintiffs failed to prove readiness and willingness and that the suit was barred by limitation. The first appellate court reversed, decreeing the suit. The High Court, after hearing counsel, framed a substantial question of law regarding whether the first appellate court's judgment suffered from perversity. The court examined the evidence and found that the first appellate court had appreciated the evidence properly, including the plaintiff's testimony and documents showing readiness and willingness. The court noted that the agreement was executed in 1994, the suit was filed in 1997, and the plaintiff had deposited the balance consideration in court. The High Court held that the findings of fact recorded by the first appellate court were not perverse and did not give rise to any substantial question of law. Consequently, the second appeal was dismissed, confirming the decree for specific performance.
Headnote
A) Civil Procedure - Second Appeal - Section 100 CPC - Substantial Question of Law - The High Court in second appeal can interfere only if there is a substantial question of law. Findings of fact recorded by courts below are binding unless perverse or based on no evidence. The court held that the first appellate court's findings were based on appreciation of evidence and did not give rise to any substantial question of law. (Paras 1-14)
B) Specific Performance - Readiness and Willingness - Section 16(c) Specific Relief Act, 1963 - The plaintiff must prove continuous readiness and willingness to perform his part of the contract. The trial court found the plaintiff failed to prove readiness and willingness, but the first appellate court reversed that finding. The High Court held that the first appellate court's finding was based on evidence and not perverse. (Paras 5-10)
C) Limitation - Suit for Specific Performance - Article 54 Limitation Act, 1963 - The suit was filed within three years from the date fixed for performance. The first appellate court found the suit was within limitation. The High Court upheld this finding as it was based on evidence. (Paras 7-8)
Issue of Consideration
Whether the judgment of the first appellate court reversing the trial court's decree suffers from any perversity or raises a substantial question of law under Section 100 CPC.
Final Decision
The High Court dismissed the second appeal, confirming the decree for specific performance passed by the first appellate court. No order as to costs.
Law Points
- Second appeal under Section 100 CPC
- findings of fact not interfered with unless perverse
- substantial question of law
- specific performance of contract
- readiness and willingness
- limitation
Case Details
2015 LawText (BOM) (02) 155
SECOND APPEAL NO.35 OF 2011
Shri N. S. Deshpande for the appellant, Shri Sachin Zoting for the respondent Nos.2,3 & 5
Manohar @ Prabhakar S/o Purushottamrao Wakil (Dead) through Lrs: Vanita Wd/o Manohar Wakil, Aarti W/o Abhay Deshkar, Kishori W/o Nitin Katekar, Umesh S/o Manohar Wakil
Goma S/o Nagoji Kamble (Dead) through L.R’s: Smt. Kamlabai Wd/o Gomaji Kamble, Maroti S/o Gomaji Kamble, Shravan S/o Gomaji Kamble, Shaligram S/o Gomaji Kamble, Sau. Sindhu W/o Arjunrao Bawane, Shri Nitesh S/o Fattuji Waghmare, Ku. Vidhya D/o Fattuji Waghmare, Ku. Sunita D/o Fattuji Waghmare
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Nature of Litigation
Second appeal under Section 100 CPC against judgment of first appellate court decreeing suit for specific performance.
Remedy Sought
Appellant sought to set aside the first appellate court's judgment and restore the trial court's dismissal of the suit.
Filing Reason
Appellant challenged the first appellate court's reversal of the trial court's decree, claiming the judgment was perverse and raised substantial questions of law.
Previous Decisions
Trial court dismissed the suit; first appellate court reversed and decreed the suit.
Issues
Whether the first appellate court's judgment reversing the trial court's decree suffers from perversity or raises a substantial question of law under Section 100 CPC.
Submissions/Arguments
Appellant argued that the first appellate court erred in reversing the trial court's findings on readiness and willingness and limitation.
Respondents supported the first appellate court's judgment, submitting that the findings were based on evidence and not perverse.
Ratio Decidendi
In a second appeal under Section 100 CPC, the High Court can interfere only if there is a substantial question of law. Findings of fact recorded by courts below are binding unless perverse or based on no evidence. The first appellate court's appreciation of evidence on readiness and willingness and limitation was not perverse, hence no substantial question of law arose.
Judgment Excerpts
This appeal filed under Section 100 of the Code of Civil Procedure challenges the judgment passed by the first appellate Court dated 16-09-2010 reversing the judgment passed by the trial Court dated 30-04-2008.
The trial Court dismissed the suit holding that the plaintiffs failed to prove readiness and willingness and that the suit was barred by limitation.
The first appellate Court reversed the said judgment and decreed the suit.
The findings recorded by the first appellate Court are based on appreciation of evidence and cannot be termed as perverse.
No substantial question of law arises for consideration in this appeal.
Procedural History
The respondent-plaintiffs filed a suit for specific performance of an agreement to sell agricultural land. The trial court dismissed the suit on 30-04-2008. The plaintiffs appealed to the first appellate court, which reversed the trial court's judgment and decreed the suit on 16-09-2010. The defendant filed the present second appeal under Section 100 CPC on 21-02-2011, which was dismissed on 10-02-2015.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100
- Specific Relief Act, 1963: Section 16(c)
- Limitation Act, 1963: Article 54
