Case: RANDHIR KAUR Vs. PRITHVI PAL SINGH &amp; ORS

2) The appellant is plaintiff who has sought specific performance of agreement to sell dated November 5, 2004 in respect of land measuring 193 kanals 18 marlas at the rate of Rs.1,27,000/- per acre. A sum of Rs.12,50,000/- and Rs.1,00,000/- was paid to defendant Nos. 1 and 2 as earnest money at the time of execution of agreement to sale. The date of registration of sale deed was fixed as January 30, 2005. The suit for specific performance was filed on April 3, 20063) The learned trial court vide judgment and decree dated April 13, 2010 decreed the suit. The appeal against said judgment and decree remained unsuccessful when such appeal was dismissed on August 11, 2012. However, in the second appeal, the decree for specific performance of the agreement was declined but instead decree for recovery of Rs.13,50,000/- paid by the appellant along with interest at the rate of 12% was granted. The High Court held that plaintiff was ready and willing to perform the agreement and that Dhanwant Singh was not the attorney to act on behalf of the appellant.

Reasoning:
16) A perusal of the aforesaid judgments would show that 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 fact17) In view of the above, we find that the High Court could not interfere with the findings of fact recorded after appreciation of evidence merely because the High Court thought that another view would be a better view. The learned first appellate court has considered the absence of clause in the first power of attorney to purchase land on behalf of the Plaintiff; the fact that the plaintiff has not appeared as witness18) A perusal of the findings recorded show 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 court19) Learned counsel for the respondents have not raised any argument that the first appellate court has failed to determine some material issue of law which may confer jurisdiction on the High Court to interfere with the findings of fact nor there is any substantial error or defect 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 Singh19) Learned counsel for the respondents have not raised any argument that the first appellate court has failed to determine some material issue of law which may confer jurisdiction on the High Court to interfere with the findings of fact nor there is any substantial error or defect 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 Singh20) 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 of Section 10 of the General Clauses Act, 1897, it will be the next working day i.e. January 31, 2005 which will be deemed to be the date for performance of the agreement and on the said date, Dhanwant Singh appeared with balance sale consideration and marked himself present21) In respect of financial capacity, it has come on record that the sale deeds (Exh. P-15 and Exh. P-16) 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 Singh11) 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 CPC are pari materia.