2006 Supreme(SC) 396

2006(4) Supreme 684
SUPREME COURT OF INDIA
(From Allahabad High Court)
Arijit Pasayat and Tarun Chatterjee, JJ.
Mst. Sugani—Appellant
versus
Rameshwar Das & Anr.—Respondents
Civil Appeal No. 3465 of 2000
Decided on 25-4-2006
Counsel for the Parties :
For the Appellant : R.B. Mehrotra, Sr. Advocate, Kavin Gulati, Ms. Rashmi Singh, Mrs. Nandini Gore, Advocates.
For the Respondents : H. Sahu, C.L. Sahu, Advocates.

IMPORTANT POINT
Section 16(c) of Specific Relief Act mandates the plaintiff to aver in plaint and establish as the fact by evidence that he has always been ready and willing to perform his part of the contract.

Headnote:(i) Specific Relief Act, 1963—Section 16—Limitation Act, 1963—Article 54—Suit for specific performance—Limitation—Starting point of limitation of three years is from the date when a date was fixed—Agreement for sale was executed on 13-12-1975 and no date was fixed—Notice of execution of sale deed in favour of defendants 2 and 3 by defendant No. 1 was received in July 1978 and suit was filed on 3-1-1979—High Court while reversing the decree in second appeal proceeded as if period of limitation started from alleged date of agreement dt. 13-12-1975—Suit was within limitation.

       Held : No issue as to whether the suit was barred by time was framed by the trial court. Even otherwise in terms of Article 54 the starting point of limitation is three years from the date when a date is fixed and in the instance case no date was fixed and on the contrary the execution of the agreement was denied. The High Court proceeded as if the period of limitation started from the alleged date of agreement dated 3.12.1975. The notice about execution of Sale deed in favour of defendant Nos. 2 and 3 was received in July, 1978 and the suit was filed on 3.1.1979. Article 54 reads as follows :

       DescriptionPeriod ofTime from which of suitLimitationperiod begins to run

       For specific Three The date fixed for performance yearsthe performance, of a contract or, if no such date is fixed, when the plaintiff has notice that performance is refused.

       Therefore, the suit was clearly within time.(Para 10)

       (ii) Specific Relief Act, 1963—Section 16(c)—Suit for specific performance decreed by trial Court and 1st appellate Court—High Court reversed the decree in second appeal on a finding that pleadings in plaint did not satisfy requirement of Section 16(c) of the Act and that defendants 2 and 3 were bonafide purchasers for value without notice—Appeal—No issue was framed as regards alleged non-fulfilment of requirement of Section 16(c) of the Act—Balance amount of agreed consideration was deposited in Court simultaneously to filing of suit—Concurrent findings by two Courts below that there was prohibition on registration of sale deed at relevant point of time—Scope of interference with factual findings was limited—Impugned judgment was unsustainable.

       Held : The basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be denied the relief.(Para 17)

       Section 16(c) of the Act mandates the plaintiff to aver in the plaint and establish as the fact by evidence aliunde that he has always been ready and willing to perform his part of the contract. On considering almost identical fact situation it has held by this Court in Surya Narain Upadhyaya v. Ram Roop Pandey and Ors. (AIR 1994 SC 105) that the plaintiff had substantiated his plea.(Para 18)

       The trial court and the first appellate court recorded categorical findings that there was prohibition on the registration of the sale deed at the relevant point of time and, therefore, only agreement of sale was executed. Interestingly the High Court found that the decree passed was not executable as the defendant No. 1 had died and the legal heirs were not brought on record. There was no issue framed in that regard and even no question of law was formulated in the second appeal. The trial court and the first appellate court recorded findings of fact that there was collusion between defendant No. 1 and defendant Nos. 2 and 3. That being so factual findings were recorded that the defendant Nos. 2 and 3 had knowledge about the agreement with the plaintiff.(Para 20)

       The first appellate court in great detail examined the question as to whether the defendants 2 and 3 knowledge. It was noted that a plea that there was part payment by defendants 2 and 3 were clearly contrary to the evidence of defendant No. 1. Scope of interference with factual findings is rather limited. Unless the factual finding is perverse, contrary to material on record, there is practically no scope for interference.(Para 21)

       (iii) Civil Procedure Code, 1908—Section 100—Second appeal—Can be filed only if a substantial question of law is involved—Right of appeal being a substantive statutory right, it has to be regulated in accordance with law in force—Concurrent findings of facts howsoever erroneous could not be disturbed by High Court in exercise of power under this section—Substantial question of law has to be distinguished from substantial question of fact— What constitutes a substantial question of law.

       Held : After the amendment a second appeal can be filed only if a substantial question of law is involved in the case. The memorandum of appeal must precisely state the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such a question. If satisfied, the High Court has to formulate the substantial question of law involved in the case. The appeal is required to be heard on the question so formulated. However, the respondent at the time of the hearing of the appeal has a right to argue that the case in the court did not involve any substantial question of law. The proviso to the section acknowledges the powers of the High Court to hear the appeal on a substantial point of law, though not formulated by it with the object of ensuring that no injustice in done to the litigant where such a question was not formulated at the time of admission either by mistake or by inadvertence.(Para 23)

       If the question of law termed as a substantial question stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be termed to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But where it is found that the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or procedure requiring interference in second appeal.(Para 26)