Case Note & Summary
The appellants, legal representatives of the original plaintiff, filed a second appeal under Section 100 CPC against the judgment and decree of the IV Additional District and Sessions Judge, Belgaum, dated 16.02.2012, which allowed the appeal of the respondent-defendant and set aside the trial court's decree of specific performance. The original plaintiff had sued for specific performance of an agreement of sale dated 15.06.2005, alleging that the defendant agreed to sell suit property for Rs. 1,50,000 and received Rs. 1,20,000 as advance. The defendant denied the agreement and receipt of advance. The trial court decreed the suit, but the first appellate court reversed it, holding that the plaintiff failed to prove the agreement and part performance. The High Court, however, found that the first appellate court's judgment was perverse and based on misreading of evidence. The plaintiff had examined the attesting witness to the agreement, who corroborated the execution. The defendant did not enter the witness box. The High Court held that the concurrent findings of fact by the trial court were correct and that the first appellate court erred in reversing them without any substantial question of law. The High Court allowed the appeal, set aside the first appellate court's judgment, and restored the trial court's decree of specific performance.
Headnote
A) Civil Procedure - Second Appeal - Section 100 CPC - Substantial Question of Law - The court held that when the trial court and first appellate court have concurrently found that the agreement of sale was proved and part performance was established, no substantial question of law arises for interference in second appeal. The High Court cannot re-appreciate evidence unless there is a perverse finding or error of law. (Paras 1-10)
B) Specific Performance - Agreement of Sale - Proof - Attesting Witness - The plaintiff examined the attesting witness to the agreement, who corroborated the execution. The defendant did not enter the witness box. The concurrent findings of fact regarding the execution and part performance were upheld. (Paras 4-8)
C) Limitation - Suit for Specific Performance - Article 54 of Limitation Act, 1963 - The suit was filed within three years from the date fixed for performance. The court found no delay or latches on the part of the plaintiff. (Paras 5-6)
Issue of Consideration
Whether the second appeal under Section 100 CPC is maintainable when the lower appellate court's judgment is based on concurrent findings of fact and no substantial question of law arises.
Final Decision
The High Court allowed the appeal, set aside the judgment and decree of the first appellate court, and restored the judgment and decree of the trial court decreeing the suit for specific performance of contract.
Law Points
- Specific performance of contract
- Section 100 CPC
- concurrent findings of fact
- substantial question of law
- agreement of sale
- part performance
- attesting witness
- limitation
Case Details
2016 LawText (KAR) (01) 35
Sachin S. Magadum (for appellants), Rajashekhar Burji (for respondent)
Pawadi Rewappa Pidai (since deceased) by LRs: Ningappa Pawadi Pidai, Vittal Pawadi Pidai, Sanju Pawadi Pidai, Mahadev Pawadi Pidai, Ashok Pawadi Pidai, Gangawwa W/o Vittal Alavandi, Ningawwa W/o Pawadi Pidai
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Nature of Litigation
Second appeal against judgment and decree in a suit for specific performance of contract.
Remedy Sought
Appellants (legal representatives of original plaintiff) sought to set aside the first appellate court's judgment and restore the trial court's decree of specific performance.
Filing Reason
The first appellate court reversed the trial court's decree of specific performance, holding that the plaintiff failed to prove the agreement of sale and part performance.
Previous Decisions
Trial court (Senior Civil Judge, Raibag) decreed the suit on 26.06.2010 in O.S. No.230/2008. First appellate court (IV Addl. District and Sessions Judge, Belgaum) allowed the appeal on 16.02.2012 in R.A. No.288/2010, setting aside the trial court's decree.
Issues
Whether the first appellate court's judgment reversing the trial court's decree of specific performance is perverse and based on misreading of evidence?
Whether any substantial question of law arises in this second appeal under Section 100 CPC?
Submissions/Arguments
Appellants argued that the first appellate court erred in reversing the trial court's judgment, as the plaintiff had proved the agreement of sale by examining the attesting witness and the defendant did not enter the witness box.
Respondent argued that the plaintiff failed to prove the agreement and part performance, and the first appellate court correctly appreciated the evidence.
Ratio Decidendi
In a second appeal under Section 100 CPC, the High Court cannot interfere with concurrent findings of fact unless they are perverse or based on no evidence. When the trial court's findings are based on proper appreciation of evidence and the first appellate court's reversal is perverse, the High Court can restore the trial court's decree.
Judgment Excerpts
Though this appeal is listed for admission, with the consent of learned counsel for parties, the appeal is taken up for final hearing.
The appellants are legal representatives of the original plaintiff.
For the sake of convenience, the parties shall be referred to, in terms of their status before the trial court.
Procedural History
The original plaintiff filed O.S. No.230/2008 for specific performance of contract. The trial court decreed the suit on 26.06.2010. The defendant appealed in R.A. No.288/2010, which was allowed by the IV Addl. District and Sessions Judge, Belgaum on 16.02.2012, setting aside the trial court's decree. The legal representatives of the plaintiff filed the present second appeal under Section 100 CPC.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100, Order XLI Rule 1
- Limitation Act, 1963: Article 54
