IMPORTANT POINT
The judgment rendered by the High Court under Section 100 CPC without following the procedure contained therein cannot be sustained.

JUDGMENT

R.M. Lodha, J.

Leave granted.

2. The defendant is in appeal aggrieved by the judgment dated March 9, 2011 of the High Court of Punjab and Haryana whereby the Single Judge of that Court allowed the second appeal filed by the respondent - plaintiff; set aside the judgment and decree dated January 5, 2001 passed by the District Judge, -Sangrur and restored the judgment and decree dated April 21, 1997 passed by the Civil Judge, Junior Division, Dhuri.

3. The short question that arises for consideration in this appeal by special leave is whether a second appeal lies only on a substantial question of law and it is essential for the High Court to formulate a substantial question of law before interfering with the judgment and decree of the lower appellate court. This question arises in this way. The respondent (hereinafter referred to as ‘plaintiff’) filed a suit for specific performance of the contract dated May 22, 1993. According to the plaintiff, the appellant (hereinafter referred to as ‘defendant’) being co-owner having 1/12th share in the agricultural land admeasuring 183 bighas 19 biswas situate in Ferozepur Kuthala, Tehsil Dhuri, by an agreement dated May 22, 1993, agreed to sell 15 bighas 4 biswas of land to the plaintiff at the rate of Rs. 15000/- per bigha. The defendant received Rs. 1,48,000/- as earnest money. The sale deed was to be executed on or before March 10, 1994 and the possession of the land was also to be delivered at the time of registration of the sale deed on receipt of remaining consideration of Rs. 80,000/-. The defendant got the time for execution of sale deed extended upto May 10, - 1995 with the consent of the plaintiff. However, despite repeated requests by the plaintiff, she did not execute the sale deed. It is the plaintiff’s case that she had been always ready and willing to perform her part of the contract, but since the defendant failed to perform her part of the contract, the suit for specific performance of the contract had to be filed.

4. The defendant contested the suit and denied the execution of the agreement of sale dated May 22, 1993. She also denied having received any earnest money. She stated that she was illiterate lady and did not know how to write and sign and the subject agreement was false and fabricated document. On the pleadings of the parties, the trial court framed the following issues:-

1. Whether the defendant executed an agreement to sell on 22.5.93 and executed writing dated 10.3.94 on the back of the agreement and received Rs. 1,48,000/- as earnest money?

2. Whether plaintiff is entitled to specific performance of the agreement and for possession?

3. Whether the plaintiff has got no cause of action to file the present suit?

4. Whether the plaintiff is ready and willing and is still ready and willing to perform her part of contract?

5. Relief.

5. On recording the evidence and thereafter hearing the parties, the trial court decided issue nos. 1 to 4 in favour of the plaintiff and decreed the plaintiff’s suit on April 21, 1997 by directing the defendant to execute the sale deed by May 31, 1997, failing which it was declared that plaintiff would be entitled to get the same executed through court on payment of remaining consideration.

6. The defendant challenged the judgment and decree of the trial court in appeal before the District Judge, Sangrur. The District Judge, Sangrur, on hearing the parties, although did not interfere with the finding of the trial court in respect of the execution of agreement dated May 22, 1993, but held that both the parties had contributed towards frustration of the execution of the sale deed and, therefore, the plaintiff was not entitled to specific performance of the agreement. The District Judge, accordingly, modified the decree of the trial court by directing refund of Rs. 1,48,000/- along with interest at the bank rate from the date of the agreement until realization.

7. Being not satisfied with the judgment and decree dated January