Case Note & Summary
The appellant, Amit Vijay Bhatewara, filed a second appeal against the judgment and decree dated 31st March 2022 passed by the learned District Judge in Regular Civil Appeal No.104 of 2019. The first appellate court had dismissed the appeal preferred by the appellant-plaintiff against the judgment and decree in Special Civil Suit No.835 of 2010, which had dismissed the suit for specific performance. The suit was for specific performance of an agreement to sell. The trial court dismissed the suit, and the first appellate court affirmed that decree. In the second appeal, the appellant contended that the courts below erred in dismissing the suit. The High Court heard the learned counsel for both parties. The court noted that the second appeal under Section 100 of the Code of Civil Procedure, 1908 can only be entertained if there is a substantial question of law. The court found that the findings of fact recorded by the courts below were based on proper appreciation of evidence and were not perverse. The plaintiff failed to prove readiness and willingness to perform his part of the contract, which is essential for a decree of specific performance under Sections 16(c) and 20 of the Specific Relief Act, 1963. Consequently, the High Court held that no substantial question of law arises and dismissed the second appeal, confirming the concurrent findings.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 CPC - The court considered whether concurrent findings of fact can be interfered with in a second appeal - Held that no substantial question of law arises as the findings are based on appreciation of evidence and are not perverse (Paras 1-3).
B) Specific Performance - Readiness and Willingness - Sections 16(c) and 20 of the Specific Relief Act, 1963 - The plaintiff failed to prove readiness and willingness to perform his part of the contract - Held that the courts below rightly dismissed the suit (Paras 2-3).
Issue of Consideration
Whether the second appeal under Section 100 of the Code of Civil Procedure, 1908 raises any substantial question of law warranting interference with the concurrent findings of fact recorded by the courts below dismissing the suit for specific performance.
Final Decision
The second appeal is dismissed. The judgment and decree of the first appellate court are confirmed. No order as to costs.
Law Points
- Specific performance
- Readiness and willingness
- Concurrent findings of fact
- Second appeal
- Substantial question of law
Case Details
2026 LawText (BOM) (01) 215
Second Appeal No. 401 of 2022 with Interim Application No. 3044 of 2022
Mr. Kaustubh Thipsay a/w Ms. Ketki Gadkari, for the Appellant. Ms. Shirin Merchant a/w Farinaz Pathan, for the Respondents.
Avinash Vinayak Patwardhan & Anr.
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Nature of Litigation
Second appeal against dismissal of suit for specific performance of an agreement to sell.
Remedy Sought
The appellant-plaintiff sought specific performance of an agreement to sell.
Filing Reason
The appellant was aggrieved by the dismissal of his suit for specific performance by the trial court and the affirmation thereof by the first appellate court.
Previous Decisions
The trial court dismissed Special Civil Suit No.835 of 2010. The first appellate court dismissed Regular Civil Appeal No.104 of 2019, affirming the trial court's decree.
Issues
Whether the second appeal raises any substantial question of law?
Whether the concurrent findings of fact regarding the plaintiff's readiness and willingness are perverse?
Submissions/Arguments
The appellant argued that the courts below erred in dismissing the suit for specific performance.
The respondents supported the concurrent findings and argued that no substantial question of law arises.
Ratio Decidendi
In a second appeal under Section 100 CPC, the court cannot interfere with concurrent findings of fact unless they are perverse or based on no evidence. The plaintiff failed to prove readiness and willingness, which is essential for specific performance under the Specific Relief Act, 1963.
Judgment Excerpts
Heard the learned Counsel for the parties.
This second appeal is directed against a judgment and decree dated 31st March, 2022 passed by the learned District Judge, in Regular Civil Appeal No.104 of 2019, whereby the appeal preferred by the appellant – plaintiff against a judgment and decree in Special Civil Suit No.835 of 2010, dismissing the suit for specific performance, came to be dismissed by affirming the decree passed by the trial Court.
Procedural History
The appellant-plaintiff filed Special Civil Suit No.835 of 2010 for specific performance, which was dismissed by the trial court. The plaintiff appealed to the District Court in Regular Civil Appeal No.104 of 2019, which was dismissed on 31st March 2022. The plaintiff then filed the present second appeal under Section 100 CPC.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100
- Specific Relief Act, 1963: Section 16(c), Section 20
