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2001 DIGILAW 378 (ALL)

SHEO PYARI AND OTHERS v. SHIAM SUNDAR SUNAR

2001-04-19

KAMAL KISHORE

body2001
KAMAL KISHORE, J. ( 1 ) THIS is a second appeal against the judgment and decree dated 13. 3. 1986 passed by the Court of First Additional Civil Judge. Lucknow in Appeal No. 145 of 1986, Gaya Prasad and another v. Shiam Sundar, dismissing the appeal of the plaintiffs-appellants and confirming the judgment and decree dated 17. 2. 1978 passed by the Court of First Additional Munsif, Lucknow in Suit wo. 52 of 1972. Gaya Prasad v, Shiam Sundar, dismissing the suit of plaintiffs-appellants. ( 2 ) THE facts giving rise to this appeal are that the plaintiffs-appellants have filed a suit for specific performance of contract of re-sale. The aforesaid suit for specific performance of contract was dismissed by the learned Munsif. In its appeal, the judgment and decree passed by the learned Munsif was confirmed and the first appeal was dismissed. Feeling aggrieved, the plaintiffs-appellants have preferred this appeal. ( 3 ) I have heard learned counsel for the parties and have gone through the record. ( 4 ) IT has been argued by the learned counsel for defendant-respondent that since there are concurrent findings of fact recorded by both the courts below, hence, the present appeal is liable to be dismissed. On the other hand, it has been argued by the learned counsel for the plaintiffs-appellants that there are substantial questions of law which are involved in this second appeal, hence, the present second appeal is maintainable. The High Court can exercise its jurisdiction under Section 100, C. P. C. only "on the basis of substantial questions of law which are to be framed at the time of admission" of the second appeal and the second appeal has to be heard and decided only on the basis of such duly framed substantial questions of law. The High court would be Justified in reappreciating the evidence and in coming to its own independent conclusions, is, to say the least, patently erroneous in law and cannot be sustained. The High court would be Justified in reappreciating the evidence and in coming to its own independent conclusions, is, to say the least, patently erroneous in law and cannot be sustained. Whether a finding of fact reached by courts below is against the weight of evidence or not is a question which will remain in the realm of appreciation of evidence and does not project any question of law, much less any substantial question of law, which can enable the High Court in second appeal to upset such a finding of fact as has been held by Honble Supreme Court in Dnyanoba bhawao Shemade v. Maroti Bhaurao Marnor, 1999 (I) Supreme Today 316. ( 5 ) IN the instant case, the substantial question of law was formulated by the then learned Judge at the very stage of admission on 17. 10. 1989 where it has been written admit on substantial questions of law Nos. (i) and (ii ). The aforesaid substantial questions of law Nos. (i) and (ii) as given in the memo of appeal are as under : (i) Whether the learned appellate court below has committed a manifest error of law in failing to pass any order or considering the application under Order XL1. Rule 27, C. P. C. of the appellants on merits before or in the judgment? (ii) Whether the learned appellate court below has erred in law in ignoring to consider that the endorsement made by the Respondent on the back of the agreement in suit was only in the nature of acknowledgement and as such was not hit by the provisions of the Indian Registration Act? ( 6 ) THE contention of the appellant raised in the memo of appeal as mentioned above shows that the courts below have committed a manifest error of law in falling to pass order on merits or considering the application filed by the plaintiff under Order XL1. Rule 27, CPC. The courts below "have further erred in ignoring to consider that the endorsement made by the respondents on the back of the agreement in suit was only in nature of acknowledgement and such was not hit by the provisions of Indian Registration Act. Rule 27, CPC. The courts below "have further erred in ignoring to consider that the endorsement made by the respondents on the back of the agreement in suit was only in nature of acknowledgement and such was not hit by the provisions of Indian Registration Act. In this context, it is noteworthy that the learned munsif has given no findings on issue No. 4 although that issue relates to the extension of the period of recovery which was incorporated in the agreement as well as due acknowledgement made on the back of the impugned agreement. Such endorsements, etc. are not required to be registered as per ruling in Bankey Behari v. Surya Narain, 1998 (16) LCD 881. The learned first appellate court has also erred in not accepting the additional evidence which the plaintiff-appellants could very well tender as per the provisions of law as contained under Order xli. Rule 27, C. P. C. Order XLI, Rule 27, C. P. C. provides as under : "27. Production of additional evidence in appellate court.-- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate court. But if: (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce Judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced or witness to be examined. (2) Whenever Additional evidence is allowed to be produced by an appellate court, the Court shall record the reason for its admission. " the learned first appellate court has thus also erred in not accepting the additional evidence. (2) Whenever Additional evidence is allowed to be produced by an appellate court, the Court shall record the reason for its admission. " the learned first appellate court has thus also erred in not accepting the additional evidence. ( 7 ) SINCE the courts below have committed illegality and perversity in not allowing the request of the plaintiffs-appellants as raised in Point (t) and (ii) of substantial questions raised in the appeal, both the courts below have thus committed a manifest error of law and under these circumstances, I have no option but to allow the appeal and to remand the case to the trial court for affording opportunity to the parties to produce the expert opinion if they so desire, thereafter, the trial court shall afford an opportunity to the parties to adduce further evidence, if any The trial Court shall thereafter dispose of the case in accordance with law. ( 8 ) THE appeal is hereby allowed. The judgment and decree passed by both the courts below are set aside. The case is remanded to the trial court for affording opportunity to the parties to produce the expert opinion if they so desire. Thereafter, the trial court shall afford the opportunity to the parties to adduce further evidence, if any. The trial court shall thereafter dispose of the case in accordance with law within six months. Costs easy. .