The Supreme Court has held that the jurisdiction of the High Court under Punjab Court's Act 1918 in second appeal cannot be exercised for re­-appreciation of evidence.

The Bench comprising of Justice BR Gavai and Justice CT Ravikumar held thus "It could thus clearly be seen that though in view of Section 41 of the Punjab Act, it is not necessary to frame a substantial question of law, the jurisdiction of the High Court under second appeal cannot be exercised for re­appreciation of evidence."

The Court placed reliance on its Judgment in Satyender and Others v. Saroj and Ors., where it held that second appeal is not a forum where the court is to re­examine or re-­appreciate the question of fact settled by the Trial Court or the Appellate Court.

The Court was dealing with an appeal challenging the judgment of the High Court whereby the Court had reversed the concurrent findings recorded by the Trial Court and the Appellate Court.

In this case, as per the terms of the agreement(s) to sell, the respondents­-defendants were required to obtain Income­Tax Clearance (for short "ITC") Certificate and to also get the revenue records mutated to show them as the owners inasmuch as the Central Government was shown as the owner mistakenly.

The agreement to sell further stipulated that, in case of default by the respondents-­defendants, the appellant­-plaintiff was at liberty to get the sale deed executed and registered.

After coming to know that the respondents-defendants were trying to create third-party rights, the appellant­plaintiff filed a suit for specific performance.

The Trial Court decreed the suit. In an appeal filed by the respondents -defendants, the Appellate Court upheld Judgment of the Trial Court.

However, the High Court reversed the concurrent findings recorded by the Trial Court and the Appellate Court and directed that, if the plaintiff desires to get the sale deed executed pursuant to the agreement(s) to sell, he would do so by paying the present prevalent market value as sale consideration.

Aggrieved, plaintiff-appellants approached Supreme Court.

Advocate Rishi Malhotra, appeared on behalf of the appellant-­plaintiff and Senior Advocate S.R. Singh, appeared for respondents­-defendant.

The Court noted thus "…even when a court exercises jurisdiction under Section 41 of the Punjab Act, it cannot interfere with the findings of fact in second appeal on the ground that the said findings are erroneous, howsoever gross or inexcusable the error may seem to be. It has been held that the findings of fact would also include the findings on the basis of documentary evidence. The jurisdiction under Section 41 of the Punjab Act would be available only when there is a substantial error or defect in the procedure provided by the CPC or by any other law for the time being in force."

The Court further noted that "Having accepted the agreement(s) to sell and the receipt of an amount of Rs. 1,50,000/­ out of the total amount of Rs.1,65,000/­, the respondents­defendants could not have been permitted to take a contrary stand that on one hand, the suit could not be filed before the ITC Certificate was obtained and the revenue records were corrected, and on the other hand that they were entitled to alienate the suit property."

The Court held that the High Court had erred in interfering with the concurrent findings of fact arrived at by Court below upon correct appreciation of documentary as well as oral evidence.

Therefore, the Court set aside the Judgment passed by the High Court in second appeal.

Cause Title- M/S. Shivali Enterprises v. Godawari (Deceased) Thr. Lrs. And Others

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