1954 Supreme(AP) 25

HIGH COURT OF ANDHRA PRADESH
UMAMAHESWARAM, J.
Manchineni Venkayya
Versus
Manchineni Seshayya
Second Appeal No. 635 of against decree of Sub-J., Guntur,
Decided On : 02-08-1954

The discretion exercised by the lower appellate Court in refusing specific performance ought not to be disturbed by the High Court in second appeal.

Headnote:

SPECIFIC PERFORMANCE - CONTRACT OF SALE - REPUDIATION - NEW POINT RAISED IN APPEAL - ADMISSIBILITY - EVIDENCE - DISCRETION OF APPELLATE COURT - INTERFERENCE BY HIGH COURT - SECTION 22, SPECIFIC RELIEF ACT.

Fact of the Case:

The plaintiff filed a suit for specific performance of a contract of sale entered into by the 1st defendant to sell the plaint schedule property to him, for a declaration that the sale deed executed by the 1st defendant in favor of the 2nd defendant was not binding upon him, and for delivery of possession of the property. The 1st defendant was ex parte and did not file any written statement. The 2nd defendant contended that the suit agreement was not true, that the 1st defendant took an advance of Rs. 800/- from him and executed an agreement of sale dated 25-8-1946, that the sale deed dated 8-4-1947 was executed in his favor in pursuance of the agreement of sale and that the suit was consequently not maintainable. The trial Court decreed the suit with costs directing mesne profits to be determined in separate proceedings under O. 20, R. 12, Civil P.C. The 2nd defendant preferred an appeal in the Court of the Subordinate Judge of Guntur. The Subordinate Judge raised three points for decision: (1) Whether the contract of sale dated 16-11-1946 in favor of the plaintiff is true, supported by consideration and binding on the 2nd defendant? (2) Whether the contract of sale dated 25-8-1946 in favor of the 2nd defendant is true, supported by consideration and binding on the plaintiff? (3) Whether the plaintiff is entitled to specific performance? On point 1, he held that the contract Ex. A-1 was true and that he saw no substance in the suggestion that the contract Ex. A-1 was ante-dated. He found on point 2 that Ex. B-2 was ante-dated. On point 3, he held that as the plaintiff himself repudiated the contract, he was not entitled to specific performance under law and consequently, allowed the appeal with costs.

Finding of the Court:

The High Court held that the Subordinate Judge erred in permitting the 2nd defendant to raise a new point for determination, which was not to be found in the pleadings or in the issues and also in holding that the plaintiff repudiated the contract. The Court found that there was no evidence or admission that the plaintiff repudiated or put an end to the contract of sale, as the 1st defendant had refused to obtain the signature of his brother Rathayya to the sale deed, or that the 1st defendant repudiated the contract of sale by reason of the plaintiff insisting upon the signature of Rathayya being obtained contrary to the terms of Ex. A-1. The Court also held that the discretion exercised by the lower appellate Court in refusing specific performance ought not to be disturbed by the High Court in second appeal.

Issues: 1. Whether the contract of sale dated 16-11-1946 in favor of the plaintiff is true, supported by consideration and binding on the 2nd defendant? 2. Whether the contract of sale dated 25-8-1946 in favor of the 2nd defendant is true, supported by consideration and binding on the plaintiff? 3. Whether the plaintiff is entitled to specific performance?

Ratio Decidendi: 1. Parties ought not to be permitted to raise new points not covered by the pleadings or the issues. 2. The discretion exercised by the lower appellate Court in refusing specific performance ought not to be disturbed by the High Court in second appeal. 3. A finding of fact by the lower appellate Court is not liable to be interfered with under S. 100, Civil P.C., unless it is based on no evidence.

Final Decision: The High Court set aside the decision of the lower appellate Court and restored the judgment and decree of the trial Court. The respondent was ordered to pay the costs of the appellant throughout.