Case Note & Summary
The petitioner, Jayprakash Sitaram Goel, filed a suit for specific performance of an agreement to sell dated 1st May 1995 and for permanent injunction against the respondents. The trial court dismissed the suit, holding that the plaintiff failed to prove the execution and attestation of the agreement. The first appellate court confirmed the dismissal. The petitioner then filed a writ petition under Article 227 of the Constitution of India before the Bombay High Court. The High Court examined the concurrent findings of fact and noted that the plaintiff had not examined any attesting witness, and the two alleged attesting witnesses who were examined turned hostile. The court held that the findings of the courts below were based on proper appreciation of evidence and were not perverse. The High Court dismissed the writ petition, upholding the concurrent findings that the agreement to sell was not proved. The court also noted that the petitioner had not shown any jurisdictional error or perversity in the findings. The judgment emphasizes that the High Court, in its supervisory jurisdiction under Article 227, does not act as a court of appeal and will not interfere with concurrent findings of fact unless they are perverse or based on no evidence.
Headnote
A) Specific Relief Act, 1963 - Section 16(c) - Specific Performance - Burden of Proof - The plaintiff must prove readiness and willingness to perform his part of the contract. In the present case, the plaintiff failed to prove the execution and attestation of the agreement to sell, and thus the courts below rightly declined the relief of specific performance. (Paras 1-10) B) Evidence Act, 1872 - Section 68 - Attestation of Document - Proof of Execution - Where a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. The plaintiff did not examine any attesting witness, and the alleged attesting witnesses turned hostile, leading to the conclusion that the agreement was not proved. (Paras 5-8) C) Constitution of India, 1950 - Article 227 - Supervisory Jurisdiction - The High Court, in exercise of its supervisory jurisdiction, does not act as a court of appeal and will not interfere with concurrent findings of fact unless they are perverse or based on no evidence. The findings of the courts below were based on proper appreciation of evidence and were not perverse. (Paras 9-10)
Issue of Consideration
Whether the concurrent findings of fact by the trial court and first appellate court, holding that the plaintiff failed to prove the execution and attestation of the agreement to sell, warrant interference under Article 227 of the Constitution of India.
Final Decision
The Bombay High Court dismissed both writ petitions, upholding the concurrent findings of the trial court and the first appellate court that the plaintiff failed to prove the execution and attestation of the agreement to sell. The court held that there was no perversity or jurisdictional error in the findings of the courts below.
Law Points
- Specific performance
- burden of proof
- execution of document
- attestation
- concurrent findings
- interference under Article 227
