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TMI Blog2023 (9) TMI 1475X X X X Extracts X X X X X X X X Extracts X X X X ..... thout 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 judgement and order dated 30th September 2022 passed in Second Appeal No.324/2021 by the High Court of Judicature at Bombay (Nagpur Bench) For Brevity, "Impugned Judgement" whereby concurrent findings returned by the Courts below vide judgement dated 3rd September, 2014 Hereafter Referred to as "The Trial Court" by the Civil Judge Senior Division, Gadchiroli and vide judgement dated 1st October, 2021 Hereinafter, "First Appellate Court" by the Princi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , another Rs.1,00,000/ on 07.05.2005, Rs.2,000/ on 12.06.2008 and Rs.8,000/ on 12.06.2008 to defendant no. 1 through her husband defendant no. 2? If yes, what is the legal effect of this payment on the rights of the parties? NO No document is placed on record to show wherefrom the said amounts were withdrawn, nor was the same paid in the presence of any one of the witnesses. The amount paid on 07.05.2005 was apparently paid by cheque but the cheque number is absent from the receipt. No passbook or statement is placed on record to show the payment of such amount. The handwriting in which the endorsement on the last page of the agreement was made in respect of receipt of such amount is unclear. 3. Does the plaintiff prove that he is ready and willing to perform his part of the contract? YES Suresh's (PW 1) testimony that after receiving requisite permission from the authority the plaintiff had asked the defendant to execute the deed by way of serving notice and also the fact that he has placed on record cheque for Rs.3,90,000/, leads to the conclusion that he has always been ready and willing to perform his part of the contract. 4. Is the plaintiff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecific relief does not entail the carrying of hard cash and instead it is the presence of the financial capacity to do so. A cheque for Rs. 3,90,000/- Exhibit 73, as recorded by the Trial Court in issue No.3 of its judgment. has been placed on record which was for the meeting which was slated to take place in the office of the SubRegistrar but in fact it was the Respondents who did not attend; The High Court erred severely in overturning the findings of fact, particularly in the absence of the record of the trial court. OPINION OF THE COURT 13. The jurisprudence on Section 100, CPC is rich and varied. Time and again this Court in numerous judgments has laid down, distilled and further clarified the requirements that must necessarily be met in order for a Second Appeal as laid down therein, to be maintainable, and thereafter be adjudicated upon. Considering the fact that numerous cases are filed before this Court which hinge on the application of this provision, we find it necessary to reiterate the principles. 13.1 The requirement, most fundamental under this section is the presence and framing of a "substantial question of law". In other words, the existence of such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Such principles stand followed in Government of Kerala v. Joseph 2023 SCC OnLine SC 961 Two Judge Bench and Chandrabhan v. Saraswati 2022 SCC OnLine SC 1273 Two Judge Bench. 13.4 Nonformulation of substantial question(s) of law renders proceedings "patently illegal". This Court's decisions in Umerkhan v. Bimillabi (2011) 9 SCC 684 Two Judge Bench and Shiv Cotex v. Tirgun Auto Plast Pvt Ltd. & Ors. (2011) 9 SCC 678 Two Judge Bench indicate this position. 14. Substantial questions of law, as framed by the High Court must be answered in light of the contentions raised therein. 14.1 If the Court is of the view that a question framed is to be altered, deleted or a new question is to be added, then the Court must hear the parties. 14.2 For both the above principles, reference may be made to Gajaraba Bhikhubha Vadher v. Sumara Umar Amad (2020) 11 SCC 114 (Three Judge Bench) where the following principles were observed: a) The substantial question of law framed by the High Court must be answered, with reasons. Disposing off the appeal without answering the same cannot be justified. b) If a need is felt to modify, alter or delete a question, a hearing must be pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial question of law irrespective of the question(s) formulated, so as to annul other requirements of S. 100, CPC. b) Proviso to come in operation in exceptional cases where reasons are to be recorded by High Court. 16.2 It has further been held that the application of this section is only when some questions, substantial in law, already stand framed. (B.C. Shivashankara v. B.R. Nagaraj). (2007) 15 SCC 387 Two Judge Bench 16.3 Wrong application of law laid down by the Privy Council, Federal Court or the Supreme Court, will not qualify for substantial question of law and neither wrong application of facts. 16.4 If on an issue, the trial court discusses the evidence but does not return a finding thereon, High Court in jurisdiction under Section 100, CPC may do so. Reference be made to Govindbhai Chhotabhai Patel v. Patel Ramanbhai Mathurbhai. (2020) 16 SCC 255 Two Judge Bench This Court in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar (1999) 3 SCC 722 Two Judge Bench, observed "6. If the question of law termed as a substantial question stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding." 17.2 The extent of the same may be underscored by the observation that: "32. In a second appeal, the jurisdiction of the High Court being confined to substantial question of law, a finding of fact is not open to challenge in second appeal, even if the appreciation of evidence is palpably erroneous and the finding of fact incorrect as held in V. Ramachandra Ayyar v. Ramalingam Chettiar [V. Ramachandra Ayyar v. Ramalingam Chettiar, AIR 1963 SC 302] . An entirely new point, raised for the first time, before the High Court, is not a question involved in the case, unless it goes to the root of the matter." (Emphasis Supplied) 18. It is apparent from the above extracted principles and a perusal of the respective judgments that the second appeal is envisioned, much like any other process of the Court t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a second appeal. 24. The impugned judgment overturns concurrent findings of fact in respect of readiness and willingness on the part of the plaintiff to perform the contract, without pointing out the exceptional circumstance or the perversity in the findings which were returned by the Courts below. 25. For the Court to have done so, in accordance with law, the actual evidence, which was before the Courts below, in our view, had to be called for. This is so because, if the findings returned are to be upturned on perversity, the same should unmistakably be reflected from record. If this is not so done, the Court of first appeal being the "final Court of fact", would be reduced to a mere saying, of no actual effect. After all, a second appeal is not a "third trial on facts", and so, for reappreciation of evidence to be justified, and for the same to be required as well as being demonstrably, at a different threshold from merely, a "possible different view", perversity or the other conditions of "no evidence" or "inadmissible evidence" ought to be urged, and subsequently, with the Court being satisfied on the arguments advanced, of such a possibility, the Court would then, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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