Allahabad High Court
Chandra Pal Singh And Ors. vs Parhlad Singh And Ors. on 23 July, 2002
Equivalent citations: 2002(4)AWC2681, 2002 ALL. L. J. 2258, 2002 A I H C 4663
Author: U.S. Tripathi
Bench: U.S. Tripathi
JUDGMENT U.S. Trlpathi, J.
1. This Second Appeal has been directed against the judgment and decree dated 30.5.2002 passed by Additional District Judge, Court No. 13, Meerut, in Civil Appeal No. 360 of 1998 allowing the appeal, reversing the judgment and decree, i.e., dismissal of the suit recorded by the trial court dated 7.8.1998 in Original Suit No. 5 of 1990 and decreeing the suit of the respondents for specific performance.
2. Prahlad Slngh-respondent No. 1 and Nlranjan Slngh, predecessor-in-interest of respondent Nos. 2 to 5 (hereinafter called the plaintiffs) filed suit against Rati Ram, father of appellant Nos. 1 to 3 and grandfather of appellant No. 4 (hereafter called the defendant) for specific performance of contract dated 19.9.1986 with the allegations that the defendant agreed to sell his plot Nos. 803 and 804 in their favour for a consideration of Rs. 1,28,400 and in lieu of it, executed a registered agreement deed dated 19.9.1986 after receiving a sum of Rs. 11,000, before the Sub-Registrar, as earnest money and promised to execute the sale-deed after receiving remaining sale consideration. The plaintiffs were always ready and willing to perform their part of contract and also sent notice on 26.8.1987 to the defendant to that effect, but he refused to receive the notice. Again notice was sent on 30.6.1987 and oral requests were also made, to execute sale-deed on 22.12.1989, but ultimately he refused ; hence the suit.
3. The defendants admitting the execution of agreement deed by their predecessor-in-interest Rati Ram, contested the suit on the ground that plaintiffs were not ready and willing to perform their part of contract despite notice.
4. The trial court framed two issues, one on the point of execution of agreement deed dated 19.9.1986 by Rati Ram in favour of plaintiffs and the other regarding readiness and willingness on the part of plaintiffs. On considering the oral as well as documentary evidence of the parties, the trial court held that the defendants had admitted execution of agreement deed by Rati Ram in respect of plots in suit after receiving a sum of Rs. 11,000 as earnest money and got it registered. He further held that plaintiffs utterly failed to prove that they were ready and willing to perform part of their contract. With these findings, he dismissed the suit in toto.
5. Aggrieved with above judgment and decree of trial court, the plaintiffs filed civil appeal No. 360 of 1998. The Additional District Judge, who heard the appeal on reappraisal and evaluation of the evidence of the parties, held that the finding of the trial court regarding issue No. 1 that plaintiffs were not ready and willing to perform part of their contract was erroneous. Accordingly, he set aside the finding of the trial court on issue No. 2 and held that plaintiffs were ready and willing to perform part of their contract in accordance with agreement dated 19.9.1986 and, therefore, plaintiffs were entitled to the relief sought. Accordingly, reversing the judgment and decree of the trial court, the first appellate court allowed the appeal and decreed the suit for specific performance.
6. The above judgment and decree has been challenged in this second appeal.
7. The respondents have put in appearance through their learned counsel Sri Sankatha Rai.
8. Heard Sri N. L. Pandey, learned counsel for the appellants and Sri Sankatha Rai. learned counsel for the respondents on the admission of the appeal and perused the Judgments of both the courts.
9. The appeal may be admitted, if it involves "a substantial question of law."
10. It is not disputed that initially the plaint did not contain pleading regarding readiness and willingness of the plaintiffs to perform their part of contract as required by Section 16(c) of Specific Relief Act, but it was subsequently amended before the trial court and amendment was allowed and the above plea was incorporated. This point has now been settled by the Apex Court in the case of Gajanan Jaiktshan Joshi v. Prafahafcar Mohanlal Kalwar, JT 1989 (4) SC 524 and affirmed in Shri Lakhi Ram (dead) through L.Rs. v. Shri Trikha Ram and Ors., JT 1998 (1) SC 665 that amendment inserting the relevant averments under Section 16(c) of the Specific Relief Act does not change the cause of action and would be legally permissible exercise as laid down by this Court in Gajanan Jaikishan Joshi's case (supra). Therefore, the law on the above point is finally settled by the Apex Court and it is not a substantial question of law.
11. The controversy between the parties in this appeal is only regarding readiness and willingness of the plaintiffs to perform part of their contract as required by Section 16(c) of Specific Relief Act. The trial court after discussion of evidence of the parties held that plaintiffs could not prove that they were ready and willing to perform their pert of contract. The first appellate court has reconsidered the evidence of the parties in detail and has recorded a finding of fact that plaintiffs were ready and willing to perform their part of contract. The above finding of fact recorded by the first appellate court is based on evidence on record. As held by the Apex Court in the case of Kondiba Dagadu Kadam v. Savitribai Sopan Gufar and Ors., 2999 (2) AWC 1608 (SC) ; (1999) 3 SCC 722, it is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last Court of fact, being the first appellate court .................. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence.
12. The contention of the learned counsel for the appellants was that the finding of the trial court regarding non-readiness and willingness of the plaintiffs was wrongly set aside by the first appellate court. It is not disputed that the first appellate court is also Court of fact and it can reverse, vary or confirm a finding of fact recorded by the trial court, provided the above finding is based on the admissible evidence on record. As mentioned above, the first appellate court has discussed the entire evidence of the parties and recorded a finding of fact on the above point. It could not be shown that above finding of fact suffers from perversity or is based on inadmissible evidence or no evidence. The finding recorded by the first appellate court is pure finding of fact and is based on evidence. It does not suffer from perversity or any view settled by the Apex Court. Therefore, no substantial question of law is involved in the second appeal.
13. The appeal is, therefore, dismissed summarily.