2001 Supreme(SC) 1484

2001(7) SUPREME 812
SUPREME COURT OF INDIA
(From Madras High Court)
R.P. Sethi and Shivaraj V. Patil, JJ.
Veerayee Ammal -Appellant
versus
Seeni Ammal -Respondent
Civil Appeal No. 7185 of 1997
Decided on 19-10-2001
Counsel for Parties :
For the Appellant : K.V. Vijay Kumar, Advocate.
For the Respondent : K. Ramamurthy, Sr. Advocate, S. Prasad and Prashant Pakhiddey, Advocates.

IMPORTANT POINT
The judgment of the High Court is contrary to the mandate of section 100 CPC 1908 and being against the settled proposition of law in not sustainable.

Headnote:Civil Procedure Code, 1908-Section 100 -Second appeal-Substantial question of law -Specific Relief Act, 1963-Section 9-Contract of purchase of immovable property-Courts below finding plaintiff was ready and willing to perform time was not of essense and suit was filed within a reasonable time-Granted decree-Set aside in second appeal or substantial question of law "whether in the circumstances of the case, the plaintiff has established that she has been ready and willing to perform her part of the contract-C.P.C. Section 100-Second Appeal-Condition precedent-Substantial question of law-Meaning-Whether the question framed was a substantial question of law? (No)-Result-Appeal allowed.

       Held : Section 100 of the Code of Civil Procedure (hereinafter referred to as "the Code") was amended by the Amending Act No.104 of 1976 making it obligatory upon the High Court to entertain the second appear only if it was satisfied that the case involved a substantial question of law. Such question of law has to be precisely stated in the Memorandum of Appeal and formulated by the High court in its judgment for decision. The appeal can be heard only on the question, so formulated, giving liberty to the respondent to argue that the case before the High Court did not involve any such question. We have noticed with distress that despite amendment, the provisions of section 100 of the Code have been liberally construed and generously applied by some judges of the High Courts with the result that objective intended to be achieved by the amendment of Section 100 appears to have been frustrated. Even before the amendment of section 100 of the code, the concurrent finding of facts could not be disturbed in the second appeal. (Para 7)

       After its amendment, this Court in various judgments held that the existence of the substantial question of law is a condition precedent for the High Court to assume jurisdiction of entertaining the second appeal. The conditions specified in Section 100 of the Code are required to be strictly fulfilled and that the second appeal cannot be decided on merely equitable grounds. As to what is the substantial question of law, this Court in Sir Chunilal V. Mehta & Sons Ltd. v. Century Spinning & Manufacturing Co. Ltd., [AIR 1962 SC 1314] held that:

       "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question inthe sense that it is not finally settled by this Court or by the Privy council or by the Federal court or is not free from difficulty or calls for discussion or alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law." (Para 8)

       The question of law formulated as substantial question of law in the instant case cannot, in any way, be termed to be a question of law much less as substantial question of law. The question formulated in fact is a question of fact. Merely because of appreciation of evidence another view is also possible would not cloth the High Court to assume the jurisdiction by terming the question as substantial question of law. In this case Issue No. 1, as framed by the Trial Court, was, admittedly, an issue of fact which was concurrently held in favour of the appellant-plaintiff and did not justify the High Court to disturb the same by substituting its own finding for the findings of the courts below, arrived at on appreciation of evidence. (Para 10)

       In the instant case the parties had agreed to complete the sale by 15.6.1980 despite the fact that the time was not the essence of the contract, The appellant-plaintiff is stated to have issued letters to the respondent-defendant calling upon to execute the sale deed and thereafter also issued notice. It was further alleged and held proved by the courts of fact that the nature of the property was wet land which continued to be such during the trial. As the appellant-plaintiff had contracted to purchase the land with a view to construct a residential house, the respondent-defendant had undertaken to remove the telegraph pole in one part of the property. The Trial as well as the First Appellate Court found that in pursuance of the agreement the said pole was got removed In the first week of November, 1980 and the appellant-plaintiff issued a notice (Exhibit A-4) on 11.11.1930 cat ling upon the respondent-defendant to execute the sale deed. The appellant-plaintiff also made a publication on 13.11.1980 in a daily newspaper intimating the people, at large not to purchase the property of the respondent-defendant as the same was the subject matter of agreement to sell executed in favour of the appellant-plaintiff. On the failure of the respondent-defendant to comply with the conditions of the Agreement, the demands made in the letters and the notice, the appellant-plaintiff filed OS No. 1249 of 1980 in the month of November, 1980 itself. The legal action initiated by the appellant-plaintiff was rightly held by the Trial Court and the first Appellate court to have been commenced without delay and definitely within a reasonable time. The High Court was not justified in disturbing the finding of fact arrived at on appreciation of the evidence, while disposing of the second appeal. The impugned judgment being against the settled provisions of law is not sustainable. The appeal is accordingly allowed by setting aside the impugned judgment and restoring the judgments of the Trial Court and the First Appellate court decreeing the suit of the appellant-plaintiff against the respondent-defendant. No costs. (Paras 14 & 15)