JUDGEMENT

Heard on the question of admission.

2. This Second appeal under Section 100 of Civil Procedure Code (for brevity, CPC) has been filed by the appellant (hereinafter referred to as “defendant”) against the respondent no.1 (hereinafter referred to as “plaintiff”) being aggrieved by the impugned judgment and decree dated 16/4/2014 passed by the District Judge, Harda in Regular Civil Appeal No. 58A/13 allowing the Judgment and decree dated 21/6/2013 passed by Ist Civil Judge, Class – II, Harda, Distt. Harda in Civil Suit No. 31A/12.

3. The facts necessary for disposal of the present appeal in brief are that the plaintiff filed civil suit for Specific Performance of Contract to sale the suit land. As per the agreement dated 7/5/2010, the defendant agreed to sale suit land for Rs.200,000/- and paid Rs.100,000/- as consideration amount to plaintiff. On 11/5/2010, the plaintiff paid Rs.20,000/- to defendant and the remaining balance amount of Rs. 80,000/- was to be paid by 07/5/2012 i.e. at the time of execution of agreement. The defendant gave Bhoo Adhikar Pustika and possession of the suit land and agreed to execute the sale deed within stipulated time.

But neither the defendant appeared nor executed the sale deed. Hence, the suit was instituted for specific performance of contract to execute the sale deed. However, the defendant did not appear before the trial Court and therefore, proceeded ex-parte.

4. On basis of pleadings, trial Court framed as many as three issues and after recording evidence of the parties, partly allowed the suit vide its order dated 21/3/2013 and directed to return the amount paid by plaintiff to defendant. The plaintiff challenged the decree before the Appellate Court whereby the same has been allowed with certain directions vide judgement and decree dated 16/4/2014. Hence, this Second appeal.

5. It is submitted by the learned counsel for the appellant that first appellate Court erred in allowing the application of plaintiff under Order 41 Rule 27 CPC when the said documents are already with the plaintiff before filing the suit and Courts erred in allowing the afterthought improvement in case of plaintiff against the defendant. It is also submitted that learned Courts below ought to give time to defendant to produce his pleadings in the case. Plaintiff’s witnesses were not cross examined by the defendant and taken on record Bhoo Adhikar Pustika does not give title to the defendant but on believing such documents, the judgment and decree of the first appellate Court is liable to be set aside.

6. Per contra, learned counsel for the respondent no.2/State opposed the second appeal.

7. Heard learned counsel for the parties and perused the record.

8. The Second Appeal is filed under the provisions of Section 100 of CPC which provides that Second Appeal is entertainable by the High Court if it is satisfied that the case involves a substantial question of law.

Section 101 of CPC provides that no second appeal shall lie except on the ground mentioned in section 100 of CPC.

9. As regards the scope to entertain Second Appeal, the Supreme Court in the case of Municipal Committee, Hoshiarpur Vs. Punjab SEB, reported in (2010) 13 SCC 216 has held that every question of law could not be permitted to be raised in Second Appeal, there ought to be substantial question of law for entertaining such appeal and such appeal is entertainable in very exceptional cases and on extreme perversity. It is a rarity rather then regularity but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, then Second Appeal should be entertained. In other words, perversity itself is a substantial question worth adjudication. Here in this appeal, it is to be seen as to whether any perversity was committed by the Courts below and as to whether any substantial question of law