2019 (7) TMI 2024 - SC - Indian Laws

Suit for specific performance of agreement - scope of interference in second appeal in Punjab and Haryana governed by Section 41 of the Punjab Act - Dhanwant Singh was the attorney to act on behalf of the Appellant or not. Scope of interference in second appeal in Punjab and Haryana is governed by Section 41 of the Punjab Act - HELD THAT - The effect of the Constitution Bench judgment in Pankajakshi 2016 (2) TMI 1063 - SUPREME COURT is that in second appeal the scope of interference within the Punjab and Haryana High Court would be the same as Code of Civil Procedure existed prior to 1976 amendment. The provisions of Section 41 of the Punjab Act and of Section 100 of the Code of Civil Procedure are pari materia. In a judgment reported in Kshitish Chandra Bose v. Commissioner of Ranchi 1981 (2) TMI 251 - SUPREME COURT three Judges of this Court held that the High Court has no jurisdiction to entertain second appeal on findings of fact even if it was erroneous. The jurisdiction in second appeal is not to interfere with the findings of fact on the ground that findings are erroneous however gross or inexcusable the error may seem to be. The findings of fact will also include the findings on the basis of documentary evidence. The jurisdiction to interfere in the second appeal is only where there is an error in law or procedure and not merely an error on a question of fact. Dhanwant Singh was power of attorney holder or not - HELD THAT - The learned first appellate court has returned a finding that the Plaintiff was ready and willing to perform the contract and that the Defendants cannot take plea that they were not aware that Dhanwant Singh was power of attorney holder. Therefore the findings recorded by the first appellate court cannot be said to be contrary to law which may confer jurisdiction on the High Court to interfere with the findings of fact recorded by the first appellate court. In respect of financial capacity it has come on record that the sale deeds were executed by Randhir Kaur prior to January 30 2005 for making payment to the Defendants to execute the sale deed as per terms and conditions of the agreement. Therefore the High Court was not within its jurisdiction to interfere in second appeal only for the reason that on the date of agreement there was no specific power of attorney in favour of son of the Plaintiff Dhanwant Singh. The High Court s judgment is set aside and the decree of the lower appellate court is restored granting the Appellant two months to pay the balance sale consideration. The Defendants were directed to execute the sale deed upon receiving the amount failing which the Plaintiff could deposit the amount with the executing court and seek execution of the decree. Appeal allowed.

Summary

Issues Involved:
1. Specific performance of the agreement to sell.
2. Authorization of Dhanwant Singh to act on behalf of the Plaintiff.
3. Jurisdiction of the High Court in second appeal u/s 41 of the Punjab Courts Act, 1918.

Summary:

1. Specific Performance of the Agreement to Sell:
The Appellant sought specific performance of an agreement dated November 5, 2004, for land measuring 193 kanals 18 marlas at Rs. 1,27,000/- per acre, with Rs. 13,50,000/- paid as earnest money. The trial court decreed the suit on April 13, 2010, and the first appeal was dismissed on August 11, 2012. However, the High Court in the second appeal declined specific performance but granted a decree for recovery of the earnest money with 12% interest.

2. Authorization of Dhanwant Singh to Act on Behalf of the Plaintiff:
The High Court found that Dhanwant Singh was not authorized to act on behalf of the Plaintiff. The Plaintiff argued that the subsequent power of attorney dated September 14, 2005, ratified all acts of Dhanwant Singh, including the agreement to sell. The Defendants contended that the first power of attorney dated September 29, 1999, did not relate to the land in question and that the Plaintiff never informed them about Dhanwant Singh's authority. The High Court's decision was based on the absence of a specific clause in the power of attorney and the Plaintiff's failure to appear as a witness.

3. Jurisdiction of the High Court in Second Appeal u/s 41 of the Punjab Courts Act, 1918:
The Supreme Court emphasized that the High Court's jurisdiction in second appeals is limited to errors of law or procedure, not findings of fact. The High Court exceeded its jurisdiction by interfering with the factual findings of the lower courts. The Supreme Court cited several precedents, including Pankajakshi (D) through L.Rs and Ors. v. Chandrika and Ors., to assert that substantial questions of law are not required to be framed in second appeals, and the High Court cannot reverse findings of fact unless there is an error in law or procedure.

Conclusion:
The Supreme Court set aside the High Court's judgment and restored the decree of the lower appellate court, granting the Appellant two months to pay the balance sale consideration. The Defendants were directed to execute the sale deed upon receiving the amount, failing which the Plaintiff could deposit the amount with the executing court and seek execution of the decree. The appeal was allowed with no costs.