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2023 Supreme(SC) 984

SUPREME COURT OF INDIA
B.R GAVAI, SANJAY KAROL, JJ.
Suresh Lataruji Ramteke – Appellant
Versus
Sau. Sumanbai Pandurang Petkar & Ors. – Respondent
Civil Appeal No. 6070 of 2023 [Arising out of SLP(C) No.20183 of 2022]
Decided on : 21-09-2023

Advocates appeared:
For the Petitioner(s): Mr. Satyajit A Desai, Adv. Mr. Siddharth Gautam, Adv. Mr. Abhinav K. Mutyalwar, Adv. Mr. Gajanan N Tirthkar, Adv. Mr. Vijay Raj Singh Chouhan, Adv. Ms. Anagha S. Desai, AOR
For the Respondent(s): Mr. Rajat Joseph, AOR Mr. Hrishikesh Chitaley, Adv. Mr. Vijay Kari Singh, Adv. Mr. Madhur Deo, Adv. Mr. Kaustubh Kadasne, Adv.

IMPORTANT POINT
Second appeal – Existence of substantial question of law is sine qua non for exercise of this jurisdiction – Jurisdiction under second appeal not to be exercised merely because an alternate view is possible – Non-formulation of substantial question(s) of law renders proceedings patently illegal.

Headnote:

(A) Civil Procedure Code, 1908 – Section 100 – Second appeal – Existence of substantial question of law is sine qua non for exercise of this jurisdiction – Substantial questions of law, as framed by High Court must be answered in light of contentions raised therein – If Court is of the view that a question framed is to be altered, deleted or a new question is to be added, then Court must hear the parties – When case is admitted, but upon hearing when it is found that no substantial question of law arises for consideration, reasons should be recorded in such dismissal – Substantial questions should ordinarily, not be framed at a later stage – If done so, then parties must be given an opportunity to meet them – Non-formulation of substantial question(s) of law renders proceedings patently illegal – Jurisdiction under second appeal not to be exercised merely because an alternate view is possible – Interference on findings of fact permitted in exceptional cases, i.e., when finding is based on either inadmissible or, no evidence.. (Paras 13.1, 13.4, 14, 14.1, 14.3, 16, 16.5, and 17)

(B) Agreement to Sell – Suit for Specific Performance – Defendants allegedly tried to evade coming to office of authority to execute sale-deed – Impugned judgment overturns concurrent findings of fact in respect of readiness and willingness on part of plaintiff to perform the contract, without pointing out exceptional circumstance or perversity in findings which were returned by Courts below – Haste with which Court proceeded to dispose of appeal without proper and adequate opportunity to address arguments cannot be appreciated – Governing statute lays considerable emphasis on hearing parties on all questions and same is reflected in various pronouncements of this Court – Approach adopted by a Court in disposing of such appeals must abide by the same – Matter remitted to High Court for consideration afresh in accordance with law. (Paras 24, 26 and 28)

Facts of the case:

Following questions arise for consideration of this Court: (1) Whether in absence of affording adequate opportunity of hearing to the parties on addressing framed substantial questions of law, High Court could have proceeded to decide the same in an appeal preferred under Section 100 Code of Civil Procedure, particularly, when findings of fact rendered by two Courts, were sought to be reversed?

(2) Whether in absence of any trial record or without summoning and perusing the trial record, findings of fact on the issue of plaintiff’s readiness and willingness to execute the sale deed, could have been reversed by High Court in exercise of its appellate jurisdiction under Section 100 CPC?

Findings of Court:

Judgment and Order dated 30th September 2022 passed in Second Appeal No.324/2021 by the High Court of Judicature at Bombay (Nagpur Bench) is set aside and case is restored to the file of the High Court. Accordingly, appeal is accepted and allowed in such terms.

Result : Appeal allowed.

JUDGMENT :

SANJAY KAROL J.

1. Leave granted.

2. The following questions arise for consideration of this Court:

2.1 Whether in the absence of affording adequate opportunity of hearing to the parties on addressing the framed substantial questions of law, the High Court could have proceeded to decide the same in an appeal preferred under section 100 Code of Civil Procedure (hereinafter “CPC”), particularly, when the findings of fact rendered by two Courts, were sought to be reversed?

2.2 Whether in the absence of any trial record or without summoning and perusing the trial record, findings of fact on the issue of plaintiff’s readiness and willingness to execute the sale deed, could have been reversed by the High Court in exercise of its appellate jurisdiction under section 100 CPC?

3. Though, initially in the defendants’ appeal, which was listed firstly on 26th April 2022, the High Court fixed the matter for preliminary hearing on 29th September 2022, but adjourned it for the next day, i.e., 30th September, 2022 when, after framing the substantial questions of law, proceeded to hear the appeal and reversed the findings of fact concurrently recorded by the two Courts in the plaintiff’s favour.

4. Hence, this appeal by special leave, seeks to assail a judgment and order dated 30th September 2022 passed in Second Appeal No.324/2021 by the High Court of Judicature at Bombay (Nagpur Bench) 1[For Brevity, "Impugned Judgment"] whereby concurrent findings returned by the Courts below vide judgment dated 3rd September, 20142[Hereafter Referred to as "The Trial Court"] by the Civil Judge Senior Division, Gadchiroli and vide judgment dated 1st October, 20213[Hereinafter, "First Appellate Court"] by the Principal District Judge, Gadchiroli, were overturned.

THE FACTUAL MATRIX

5. The respondent namely, Sumanbai Pandurang Petkar (defendant in the original suit) 4[Hereafter referred to as "the Defendants"] had agreed to sell, for a consideration of Rs.6,60,000/the property subject matter of dispute, i.e., 3 acres of land to the appellant herein (plaintiff in the original suit)5[Hereafter, "the Plaintiff"].

6. For transfer, the Divisional Commissioner, Nagpur Division, Nagpur, accorded necessary permissions. Despite various attempts at execution, the same did not take place, and as such the plaintiff issued notices to that effect, which were served on the respondents requiring them to be present at the office of the concerned authority on 16th December, 2009 at 11:30 AM to get the deed executed. Such notices remained not complied with as the defendants allegedly, tried to evade coming to the office of the authority for such purpose.

7. It is as such that the case, subject matter of the present lis came to be filed by the Plaintiff.

TRIAL COURT AND FIRST APPELLATE COURT

8. The Trial Court framed 5 issues. A tabular representation of the issues, the corresponding findings and the reasons therefor, in short, is as below:

S. No.

Issues

Findings

Reasons

1.

Does plaintiff prove that defendant no. 1 has entered into an agreement of sale suit land Survey No. 236/2 area 1.19 HR of Navegaon in favor of plaintiff for consideration of Rs.6,60,00/?

YES

PW­1 Suresh and PW­2 Sudhakar have deposed that an agreement was entered into in respect of the land and their testimonies remain unshaken. Even though Ulhas Shriniwas Athaale (PW3) has not positively identified the thumb impression as that being the same one affixed by defendant no. 1, namely Sumanbai that does not establish that she had not affixed her thumb impressions.

2.

Does plaintiff prove that that on 29.03.2004 defendant no. 1has executed the agreement to sell in favour of the plaintiff and the earnest money of Rs.60,000/ was paid by the plaintiff to the defendant on the same day?

YES

It i


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