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CASE NO.: Appeal (civil)  4592 of 2005

PETITIONER: Phool Pata & Anr.                                        

RESPONDENT: Vishwanath Singh and Ors.                                

DATE OF JUDGMENT: 01/08/2005

BENCH: ARIJIT PASAYAT & H.K. SEMA

JUDGMENT: J U D G M E N T (Arising out of SLP( C) No. 1371/2005)

ARIJIT PASAYAT, J.

       Leave granted.

       Challenge in this appeal is to the judgment rendered by  learned Single Judge of the Allahabad High Court, Lucknow  Bench in a Second Appeal under Section 100 of the Code of  Civil Procedure, 1908 (in short ’CPC’).  The plaintiffs- respondents herein had filed a suit for specific performance  of contract dated 30.7.1977 as well as for cancellation of  sale deed dated 14.5.1980.  According to the plaintiffs a  sum of Rs.2,500/- had been paid as advance money and the  consideration for sale was fixed at Rs.10,000/-. Thus the  balance amount of Rs.7,500/- was to be paid at the time of  execution of sale-deed. The suit was contested by the  present appellant-defendant No.3. The present appellant  along with defendant No.1 (respondent No.4) contended that  the permission to sell the land had been obtained from the  Settlement Officer (consolidation) during the year 1980.   When the plaintiffs were requested to purchase the land,  they did not agree to get the sale deed executed.   Thereafter defendant No.1-Jogendra Singh executed the sale  deed in favour of the present appellant and respondent No.5.

       The trial court decreed the suit and directed for  specific compliance of the agreement to sale, in dispute,  dated 30.7.1977 and cancellation of sale deed dated  14.5.1980 along with other reliefs. The matter was carried  in appeal before the learned Additional District Judge,  Gonda who allowed the appeal and set aside the judgment of  the trial court and directed dismissal of the relevant suit.  It is to be noted that the trial court had held that the  plaintiffs had proved that they were ready and willing to  perform their part of the contract. Before the first  Appellate Court, two stands were taken by the defendants.   Firstly, it was submitted that there was change in the area  and description of the land in question and though the  agreement was purportedly for 1 acre 99 decimals, after  completion of the consolidation proceedings the area had  become 2 acres and 2 decimals.  The area of some chaks had  decreased and some had increased. It was further submitted  that materials on record did not justify the stand of the  plaintiffs that they were ready and willing to perform their

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part of the contract.  After analyzing the evidence the  first Appellate Court recorded two findings. Firstly, it was  observed that the description of the properties had  completely changed and therefore the suit for specific  performance was liable to be dismissed.  Reliance was placed  on a decision of this court in Piarey Lal  vs. Hori Lal   (1977 (2) SCC 221) for adopting such view. It was also  concluded that the materials on record did not justify the  conclusion that the plaintiffs were ready and willing to  perform their part of the contract.  As noted above, the  appeal was allowed and the suit was dismissed. The  plaintiffs carried the matter in second appeal before the  High Court. The following question was formulated for  adjudication:-

       "Whether in respect of land regarding which  the agreement to sell had taken place, was a  bit increased or decreased in consolidation  proceeding, amounts to change in property and  hence the said agreement can be enforced by  suit for specific performance of contract?"

       The High Court held that there was a minor variation in  the area.  Referring to a decision of this Court in Smt.  Baikunthi Devi and Ors. v. Mahendra Nath and Anr. (AIR 1977  SC 1514) it was held that the variation was minor and that  too on account of allotment of a new chak.  There was no bar  to a decree being granted.  It appears that the High Court  recorded the findings on the appreciation of evidence as  done by the first Appellate Court.  It observed that the  first Appellate Court is under a duty to examine evidence on  record and when it refuses to consider important evidence  having direct bearing on the disputed issue and the error  which arises is of a magnitude, it gives rise to a  substantial question of law. With reference to various  judgment of this Court, it was noted that where the findings  of lower courts are vitiated by non-consideration of  relevant evidence or by an essentially erroneous approach to  the matter, the High Court is not precluded from recording  proper findings.  Therefore, the erroneous findings if  recorded by the Court below can be set aside by the High  Court in second appeal.

       Learned counsel for the appellant submitted that the  first Appellate Court had recorded positive findings to the  effect that the plaintiffs had failed to establish that they  were ready and willing to perform their part of the  contract.  No question of law was formulated in this regard.  On the contrary the only question which was formulated  related to the effect of minor variation in the area or  description of the property.  Entire discussions made by the  High Court appear to be in relation to that question.   Therefore, without formulating the question regarding the  readiness and willingness of the plaintiffs to perform their  part of the contract, the High Court could not have allowed  the second appeal.

       In response, learned counsel for the respondents  submitted that the High Court had considered the question as  regards effect of court of facts not considering relevant  evidence or adopting essentially erroneous approach of the  matter. The conclusions were actually in relation to the  findings recorded by the first Appellate Court regarding the  readiness and willingness aspect.  Merely because the

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question has not been formulated, that should not stand in  the way of affirming the decision of the High Court.  It was  submitted that the present appellant did not take any plea  in this regard before the High Court and therefore should  not be permitted to make any grievance.

       After the amendment of CPC, Section 100(5) reads as  follows:

               "The appeal shall be heard on the  question so formulated and the respondent  shall, at the hearing of the appeal, be  allowed to argue that the case does not  involve such question.

               Provided that nothing in this sub- section shall be deemed to take away or  abridge the power of the Court to hear,  for reasons to be recorded, the appeal on  any other substantial question of law, not  formulated by it, if it is satisfied that  the case involves such question."        

       As a bare perusal of the provision shows, nothing in  sub-section (5) takes away or abridges power of the High  Court to hear for reasons to be recorded, the appeal on any  other substantial question, not formulated earlier, if it is  satisfied that the case involves such question.

       In the instant case, the only question that was  formulated has been quoted above. Undisputedly, there was no  other question formulated regarding the findings of the  Appellate Court on the readiness and willingness aspect.  In  terms of sub-section (5), the High Court could have heard  the appeal on a question not formulated if for reasons to be  recorded (emphasis supplied) if it was of the view that the  case involves such question.  In the instant case no such  reason has been recorded.  The memorandum of appeal filed  before the High Court also does not indicate that any  specific question was formulated in that regard.

       Piarey Lal’s case (supra) relied upon the first  Appellate Court was clearly distinguishable on the facts and  the High Court has rightly observed that the decision in  Smt. Baikunthi Devi’s case (supra) was applicable on the  facts of the case.  We, therefore, find no substance in the  plea raised by learned counsel for the appellant that the  High Court was not justified in answering the question  formulated in favour of the respondents.  But in view of the  fact that no question was formulated regarding the findings  recorded by the first Appellate Court on the other aspect,  the High Court could not have set aside the judgment of the  first Appellate Court in its entirety. On that ground alone,  the present appeal succeeds and the judgment of the High  Court in second appeal is set aside. This piquant situation  has  arisen because  the  appellant before the High Court  was not vigilant.  It was not for the defendants who were  respondents before the High Court to invite any finding  against them by agitating an issue which was decided in  their favour by the first Appellate Court. As the findings  recorded by the first Appellate Court were essentially  factual, the High Court was required even otherwise to show  as to how those were erroneous and which relevant material

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had been left out of consideration and/or which irrelevant  material was taken into consideration.  It has not been  done.  The High Court only referred to the principles on  law, about which there is no dispute, without specifically  pointing out which conclusions of the first Appellate Court  suffered from deficiencies and in what way.  That being so,  the High Court’s judgment, even if we accept that  appropriate question could have been formulated would not  have altered the situation.  The appeal is allowed, with no  order as to costs.