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TMI Blog2019 (7) TMI 2024X X X X Extracts X X X X X X X X Extracts X X X X ..... ings 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 con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of attorney dated September 29, 1999 was not in respect of land in question but in the subsequent power of attorney dated September 14, 2005, the Appellant has ratified all the acts of the Attorney Dhanwant Singh including the purchase of movable and immovable property anywhere in her name. It is argued that the agreement dated November 5, 2004 was entered into by the Appellant through her son Dhanwant Singh in whose favour registered power of attorney was executed on September 14, 2005. It is the said Dhanwant Singh who has paid the amount to the Defendants. The plea of the Defendants that Dhanwant Singh was not authorised to act on behalf of his mother is wholly untenable as the Defendants having received the amount from Dhanwant Singh. The finding that sum of Rs. 13,50,000/- was paid by the Appellant through Dhanwant Singh has been accepted by the High Court when the Court recorded the following findings: 17. Adverting to the facts of the case in hand, agreement of sale dated November 05, 2004 (Ex. P-1) was executed by Appellants/Defendants No. 1 and 2 on their behalf as well as on behalf of Defendants No. 3 and 4, on receipt of a sum of ` 13.5 lacs as earnest money. Though ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, substantial questions of law are not required to be framed in second appeal but, the jurisdiction of the High Court is not to reverse the finding of facts in terms of Section 41 of the Punjab Act. The jurisdiction of the High Court in second appeal is circumscribed by the provisions of Section 41 of the Punjab Act. The first ground is that decision being contrary to law or to some custom or usage having the force of law. The argument of Mr. Jain is that decision of the first appellate court is contrary to law as the Plaintiff has failed to prove readiness and willingness to perform the agreement. The readiness and willingness to perform a contract is a finding of fact on the basis of oral and documentary evidence led by the parties. The first appellate court has recorded the following findings on the question of readiness and willingness of the Plaintiff: 19. Now what is to be seen if both the parties appeared to be at fault because when the agreement to sell has been provide and the Defendant Nos. 1 and 2 have also shown that they are entering into an agreement on behalf of Defendant Nos. 3 and 4 being their power of attorney but till date the Defendant Nos. 1 and 2 failed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any court subordinate to a High Court on any of the following grounds, namely: (a) the decision being contrary to law or to some usage having the force of law; (b) the decision having failed to determine some material issue of law or usage having the force of law; (c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits. (2) An appeal may lie under this Section from an appellate decree passed ex parte. 11. The effect of the Constitution Bench judgment in Pankajakshi 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. 12. Some of the judgments of this Court dealing with the scope of the old Section 100 are required to be discussed. In a judgment re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rst appellate Court based upon an appreciation of the relevant evidence. In the result, the decree of the High Court is set aside and the appeal is allowed with costs throughout. 13. Later, in a judgment, reported in Kshitish Chandra Bose v. Commissioner of Ranchi (1981) 2 SCC 103-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 Court held as follows: 11. On a perusal of the first judgment of the High Court we are satisfied that the High Court clearly exceeded its jurisdiction Under Section 100 in reversing pure concurrent findings of fact given by the trial court and the then appellate court both on the question of title and that of adverse possession. In the case of Kharbuja Kuer v. Jangbahadur Rai [ AIR 1963 SC 1203 : (1963) 1 SCR 456] this Court held that the High Court had no jurisdiction to entertain second appeal on findings of fact even if it was erroneous. In this connection this Court observed as follows: It is settled law that the High Court has no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact. As the two courts approached the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 1976, and held as under: 12. The scope of second appeal as envisaged by Section 100 of the Code of Civil Procedure and Section 41 of the Punjab Courts Act has been a matter of judicial scrutiny a number of times by this Court as well as by the final court, that is, the Supremes Court of India. The learned Counsel for the Appellant has actually made a reference in this regard to Detty Paitabhiramaswami v. S. Hanymayya [AIR 1959 SC 57.], Madamanchi Ramappa v. Muthaluru Bojjappa [AIR 1962 SC 1933.], Bithal Dass Khanna v. Hafiz Abdul Hai [1969 S.C. Notes 481.] and Afsar Shaikh v. Soleman Bibi [ (1976) 2 SCC 142 : AIR 1976 SC 163.]. These pronouncements; in a nutshell, lay down that there is no jurisdiction to entertain a second appeal on the ground of a erroneous finding of fact, however gross or inexcusable the error may seem to be. Nor does the fact that the finding of the first appellate Court is upon some documentary evidence make it any the less a finding of fact. A Judge of the High Court has, therefore, no jurisdiction to interfere in second appeal with the findings of fact given by the first appellate court based upon an appreciation of the relevant evidence. Their Lordship ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the procedure provided by the Code of Civil Procedure or by any other law for the time being in force which may possibly have produced error or defect in the decision on merits. Therefore, the High Court was not within its jurisdiction to interfere with the findings of fact only for the reason that Plaintiff has failed to prove power of attorney in favour of Dhanwant Singh. 20. The agreement to purchase the land was entered into by the Plaintiff through her son Dhanwant Singh when a sum of Rs. 13,50,000/- was paid to the Defendants. The Defendants could accept a sum of Rs. 13,50,000/- from Dhanwant Singh but they disputed the authority of Dhanwant Singh to enter into agreement to purchase on behalf of his mother. Dhanwant Singh had appeared in the office of the Sub Registrar for execution of the sale deed on January 31, 2005 with the plea that he has brought the balance sale consideration but the Defendants have not turned up. In fact, the Defendants relied upon their presence before the Sub Registrar on January 28, 2005 i.e. even before January 30, 2005, i.e. the date on which the execution of sale deed was fixed. January 30, 2005 was Sunday. Therefore, in terms of provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X
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