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TMI Blog2005 (8) TMI 702X X X X Extracts X X X X X X X X Extracts X X X X ..... l: (1) Whether the plaintiff had been ready and willing to perform his part of the contract in pursuance of the agreement dated 23rd February, 1981 with respect to the part of the land measuring to 50 x 40 ft. described in paragraph no.2 of the plaint? (2) Whether the plaintiff cancelled the aforesaid agreement to sell the land after receiving a sum of ₹ 3,500/- from the defendant? (3) Whether the suit had been filed by the plaintiff within time? (4) Relief. The trial court answered these issues in favour of the plaintiff and decreed the suit. The defendant filed an appeal under Section 96 of the Code of Civil Procedure, 1908. The Additional District Judge concurred with the decision of the trial court and dismissed the appeal, thus, confirming the decree of the trial court. Feeling aggrieved, the defendant filed a second appeal before the High Court under Section 100 of the Code of Civil Procedure, 1908. The defendant submitted in his memorandum of second appeal that the following substantial questions of law were involved in the case. "A. Whether the courts below have committed a grave legal error in not taking into consideration the great variance between the pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the court to decree specific performance in terms of Section 20 of the Specific Relief Act and whether there were latches on the part of the plaintiff in approaching the court to enforce specific performance of the contract. In some cases, a question of limitation may also arise in the context of Article 54 of the Limitation Act on the terms of the agreement for sale. Other questions like the genuineness of the agreement, abandoning of the right to specific performance, a novation and so on, may also arise in some cases. No doubt, a finding on the three primary aspects indicated earlier would depend upon the appreciation of the pleadings and the evidence in the case in the light of the surrounding circumstances. Could it be appropriate to understand these questions purely as questions of fact in the context of Section 100 of the Code of Civil Procedure, 1908? In Raghunath Prasad Singh Vs. Deputy Commissioner of Pratabgarh, ( 54 Indian Appeals 126), the Privy Council, though, in the context of Section 110 of the Code of Civil Procedure, negatived the theory that to be a substantial question of law, a question of law has to be of general importance and stated that "a substant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ff has been guilty of negligence or latches disentitling him to a decree for specific performance. These questions, by and large, may not be questions of law of general importance. But they cannot also be considered to be pure questions of fact based on an appreciation of the evidence in the case. They are questions which have to be adjudicated upon, in the context of the relevant provisions of the Specific Relief Act and the Limitation Act (if the question of limitation is involved). Though, an order in exercise of discretion may not involve a substantial question of law, the question whether a court could, in law, exercise a discretion at all for decreeing specific performance, could be a question of law that substantially affects the rights of parties in that suit. Therefore, in the case on hand, the High Court was not justified in dismissing the second appeal in the manner in which it has done. Be it noted, that the High Court has also not spoken while dismissing the second appeal. We are therefore of the view that it is necessary for the High Court to consider whether a substantial question of law is involved or not and to give its reasons for coming to its conclusion either w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the circumstances of a given case. But by introducing the concept of "substantial question of law" in Section 100 of the Code, the right of the litigant to have a decision after a re-appraisal of the relevant materials by the High Court has been curtailed. Though, courts of first appeal are made the final courts of facts, there are instances when first appellate courts merely, mechanically, confirm the findings of fact rendered by the trial court without an independent reappraisal of the pleadings and the evidence in the case. Since a judgment of affirmance need not be as elaborate as a judgment reversing the decision of the court below, it is often contended that the judgment of the appellate court satisfies the requirements of Order XLI Rule 31 of the Code. There are occasions when the High Court feels the constraint of Section 100 and reluctantly declines to interfere though interference would have been proper to render justice between the parties. High Courts are often confronted with an argument that even if what was involved was a mixed question of fact and law or even a question of law, that did not constitute a substantial question of law justifying interference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confirm findings of fact rendered by the trial court without making an independent reappraisal of the pleadings and the evidence in the case as they are bound to do as courts of appeal. But even in such cases, the High Courts find it difficult to interfere, though, they do interfere, when the injustice caused to the litigant is so apparent that the same could not be overlooked and the judgment under appeal allowed to pass muster. There have also been occasions when the High Courts had felt compelled to interfere, notwithstanding the limitation imposed by the wording of Section 100 of the Code of Civil Procedure, and on occasions such decisions have been interfered with by this Court, on the ground that the High Court has exceeded its jurisdiction under Section 100 of the Code of Civil Procedure. After all, the purpose of the establishment of courts of justice is to render justice between the parties. Is it necessary to unduly curtail the jurisdiction of the High Courts, either under Section 100 of the Code of Civil Procedure or under Section 115 of the Code of Civil Procedure in that context? Of course, the High Courts have to act with circumspection while exercising these jurisdic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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