1999 Supreme(SC) 902

1999(7) Supreme 472
Supreme Court of India
(From Allahabad High Court)
S. Rajendra Babu & R.C. Lahoti, JJ.
Ram kumar Agarwal & Anr. -Appellant
versus
Thawar Dass (Dead) Through LRs. -Respondents
Civil Appeal Nos. 2735-36 of 1985
Decided on 20-8-1998
Counsel for the Parties :
For the Appellants : R.K. Jain, M.N. Krishnamani, Sr. Advocates, Rajeev Singh, Ms. Ritu Singh, Ms. Ranjana Narain, Rajesh Prasad Singh, Advocates.
For the Respondents : Yashank Adhyaru, R.P. Wadhwani, Advocates.

Important Point
1. Plea under Section 53A of the Transfer of Property Act raises a mixed question of law and fact and therefore cannot be permitted to be urged for the first time at the stage of second appeal.
2. Merely because the decree under appeal has been executed for want of stay order from the superior court the right of the judgment debtor to prosecute the appeal is not lost without there being something to show that the judgment debtor had waived or consciously given up his right of prosecuting the appeal.

Headnote:Specific Relief Act, 1963-Sec­tion 10, 16 and 20-Civil Procedure Code, 1908-Section 100-Specific performence of sale agree­ment-Time stipulated for completion of sale was four years-Till then monthy rent was to be paid-On expiry of four years peried owner ferminated tenancy and filed suit for eviction-Counter suit for specific perfermence - Con­current findings of trial court and first appellate court that vendee failed to prone readgness and willingness to perform his part of contract-Plea of fresh agreement and payment o entige amount found to be false-High Court while not upsetting findings allowing to raise plea of part performence u/s 53A of TP Act for first time decreeing suit for specific performence-Not justified -Judgement of High Court set aside-Judgment and decree of lower court restored.

       Held : The judgment of the High Court suffers from serious infirmities. It also suffers from the vice of exercise of such juris­diction as did not vest in the High Court under the law. Under Section 100 of the CPC (as amended in 1976) the jurisdiction of the High Court to interfere with the judgments of the courts below is confined to hearing on substantial question of law. Interference with finding of fact by the High Court is not warranted if it invelves reappreciation of evidence. (Para 7)

       The High Court did not frame any substantial questions of law as contemplated by sub-section (5) of Section 100 of the CPC. It has not even discussed any evidence. No basic finding of fact recorded by the courts below has been reversed much less any reason assigned for taking a view to the contrary still the finding on the question of readiness and willingness to perform the contract which is a mixed question of law and fact has been upset. Plea under Section 53A of the Transfer of Property Act which again involves a mixed question of law and fact has been allowed to be urged and upheld by the High Court though there is no foundation for the same laid in the pleadings of Thawar Das and though the plea was not raised either before the Trial COurt or before the First Appellate Court even at the time of hearing. Before us also at the time of hearing of the appeals the learned counsel for the respondent Thawar Das found it very difficult indeed to demonstrate availability of material on record whereon the findings as to readiness and willingness for performance of his part of the contract on the part of Thawar Das and as to his possession being available to be protected under the plea of part performance emanating from Section 53A of Transfer of Property Act could be sustained. The suit for specific performance filed in the year 1969, i.e., nearly nine years after the expiry of four years from 18.7.1956, the date of the agreement, was hopelessly barred by delay and laches. We do not propose to enter into the question of limitation though the plea that the suit for specific performance was barred by time was specifically raised by Phool Chand before the Trial Court. It is statutorily pro­vided by Section 16(c) of the Specific Relief Act, 1963 that to suc­ceed in a suitfor specific performance of a contract the ploaintiff shall aver and prove that he has performed and has always been ready and willing to perform the essential terms of the contract which were to be pertformed by him other than the terms the performance of which has been prevented or waived by the defendant. In the facts and cir­cumstances of the case raising of the plea by Thawar Das that on 19.9.1966 there was a fresh agreement between the parties and he had paid Rs. 2,000/- to Phool Chand associated with positive finding arrived at by the two courts below which finding has not been upset by the High Court that the plea was false and was sought to be substanti­ated by producing a false and fabricated document makes the situation worse for Thawar Das. A person who falsely alleges to have paid Rs. 2,000/- and also attempts at proving the plea at the stage of the trial cannot be said to have been ever ready and willing to pay Rs. 7,000/- which under the contract it was his obligation to pay. The present one is not a case where a plea as to payment was raised bona­fide but abandoned at or before the trial for inability to prove. (Para 7)

       Plea under Section 53A of the Transfer of Property Act raises a mixed question of law and fact and therefore cannot be permitted to be urged for the first time at the stage of second appeal. That apart, performance or willingness to perform his part of the contract is one of the essential ingredients of the plea of part performance. Thawar Das having failed in proving such willingness protection to his pos­session could not have been claimed by reference to Section 53A of the Transfer of Property Act. (Para 8)

       (ii) Transfer of Property Act-Section 53A-Part performence-Plea of part performence is a mixed question of law and fact-Cannot be permitted to be urged for the first time at the stage of second appeal. (Para 8).

       (iii) Code of Civil Procedure, 1908-Section 100-Second appeal-Foraminy of substantial ques­tion is a must-Interference with finding of fact is not warranted if it involves reappreciation of evidence. (Para 7)

       (iv) Appeal to Supreme Court-SLP-Execution of decree pending final disposal of appeal - When would bar granting relief in appeal.

       Held : Merely because the decree under appeal has been executed for want of stay order from the superior court the right of the judgment debtor to prosecute the appeal is not lost without there being something to show that the judgment debtor had waived or consciously given up his right of prosecuting the ap­peal. (Para 10)