RANDHIR KAURversusPRITHVI PAL SINGH & ORS.

776                       [2019]
               SUPREME COURT     9 S.C.R. 776
                              REPORTS                      [2019] 9 S.C.R.


A                              RANDHIR KAUR
                                        v.
                        PRITHVI PAL SINGH & ORS.
                         (Civil Appeal No. 5822 of 2019)
B                                JULY 24, 2019
           [L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]
             Punjab Courts Act, 1918 – s.41 – Second appeals – Scope of
      interference – Appellant-plaintiff sought specific performance of
      agreement to sell dtd. Nov. 5, 2004 in respect of land measuring
C
      193 kanals 18 marlas @ Rs.1,27,000/- per acre – 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 – Suit decreed –
      Appeal thereagainst – Dismissed – In the second appeal, the decree
      for specific performance of the agreement was declined inter alia
D     holding that ‘DS’, son of the appellant was not the attorney to act
      on behalf of the appellant – Held: In second appeal, the scope of
      interference within the Punjab and Haryana High Court would be
      the same as CPC existed prior to 1976 amendment – Provisions of
      s.41 of the 1918 Act and of s.100, CPC are pari materia – Jurisdiction
      in second appeal is not to interfere with the findings of fact on the
E
      ground that findings are erroneous, however gross or inexcusable
      the error may seem to be – Findings of fact will also include the
      findings on the basis of documentary evidence – 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 fact – High
F     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 – Readiness and willingness
      to perform contract is a finding of fact on the basis of oral and
      documentary evidence led by the parties – First appellate court
      returned a finding that the plaintiff was ready and willing to perform
G
      the contract and that the defendants cannot take plea that they
      were not aware that ‘DS’ was the power of attorney holder – 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

H
                                       776
       RANDHIR KAUR v. PRITHVI PAL SINGH & ORS.                           777


with the findings of fact recorded by the first appellate court – High    A
Court was not within its jurisdiction to interfere with the findings of
fact only for the reason that plaintiff failed to prove power of
attorney in favour of ‘DS’ – Judgment of the High Court set aside –
Decree passed by the lower appellate court restored – Code of Civil
Procedure, 1908 – s.100 – Code of Civil Procedure (Amendment)
                                                                          B
Act, 1976 – General Clauses Act, 1897 – s.10.
      Allowing the appeal, the Court
      HELD : 1.1 The jurisdiction of the High Court in second
appeal is circumscribed by the provisions of Section 41 of the
Punjab Courts Act, 1918. Prior to amendment in the Code of                C
Civil Procedure vide CPC (Amendment) Act, 1976 w.e.f. February
1, 1977, the scope of interference in second appeal under the
Punjab Act as well as under the Code of Civil Procedure
as it existed before the amendment was on similar grounds.
[Para 10] [783-C-D]
                                                                          D
      1.2 The effect of the Constitution Bench judgment in
Pankajakshi case 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 unamended
Section 100 of the CPC were pari materia. The jurisdiction in             E
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        F
is an error in law or procedure and not merely an error on a
question of fact. In view of the above, 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. A perusal of the findings recorded
show that the first appellate court returned a finding that the           G
plaintiff was ready and willing to perform the contract and that
the defendants cannot take plea that they were not aware that
‘DS’ was power of attorney holder. Therefore, the findings
recorded by the first appellate court cannot be said to be contrary
                                                                          H
778            SUPREME COURT REPORTS                      [2019] 9 S.C.R.


A     to law which may confer jurisdiction on the High Court to interfere
      with the findings of fact recorded by the first appellate court. 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
B
      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
C     prove power of attorney in favour of ‘DS’. [Paras 11, 16-19]
      [783-C-D; 787-G-H; 788-A-E]
            1.4 The agreement to purchase the land was entered into
      by the plaintiff through her son ‘DS’ when a sum of Rs.13,50,000/
      - was paid to the defendants. The defendants could accept a sum
D     of Rs.13,50,000/- from ‘DS’ but they disputed the authority of
      ‘DS’ to enter into agreement to purchase on behalf of his mother.
      ‘DS’ 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
E     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
F     will be deemed to be the date for performance of the agreement
      and on the said date, ‘DS’ appeared with balance sale consideration
      and marked himself present. In respect of financial capacity, it
      has come on record that the sale deeds (Exh. P-15 and Exh. P-
      16) were executed by ‘RK’ prior to January 30, 2005 for making
      payment to the defendants to execute the sale deed as per terms
G     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, ‘DS’. In view of
      the above, the judgment of the High Court is set aside and the
H     decree passed by the lower appellate court is restored. The
       RANDHIR KAUR v. PRITHVI PAL SINGH & ORS.                         779


appellant is granted two months’ time to pay balance sale               A
consideration to defendant Nos. 1 and 2 and upon receiving the
amount, the defendants shall execute the sale deed in favour of
the plaintiff. If the defendants fail to receive the amount, the
plaintiff will be at liberty to deposit the amount with the executing
court and seek execution of the decree in accordance with law.
                                                                        B
[Paras 20-22] [788-F-H; 789-A-D]
      Pankajakshi (D) through LRs. & Ors. v. Chandrika &
      Ors. (2016) 6 SCC 157 : [2016] 3 SCR 1018 – followed.
      Deity Pattabhiramaswamy v. S. Hanymayya & Ors. AIR
      1959 SC 57 ; Kshitish Chandra Bose v. Commissioner                C
      of Ranchi (1981) 2 SCC 103 : [1981] 2 SCR 764 ;
      Gurdev Kaur & Ors. v. Kaki & Ors. (2007) 1 SCC
      546 : [2006] 1 Suppl. SCR 27 – relied on.
      Kirodi (since deceased) through his LR v. Ram Parkash
      & Ors. 2019 SCC OnLine SC 759 ; Chand Kaur(D)                     D
      through LRs. v. Mehar Kaur (D) through LRs 2019 SCC
      OnLine SC 426 ; Surat Singh(D) v. Siri Bhagwan &
      Ors. (2018) 4 SCC 562 : [2018] 1 SCR 1063 ; Sadhu
      v. Mst. Kishni 1980 AIR (Punjab) 85 – referred to.
                       Case Law Reference                               E
[2016] 3 SCR 1018              followed                Para 4
[2018] 1SCR 1063               referred to             Para 9
AIR 1959 SC 57                 relied on               Para 12
[1981] 2 SCR 764               relied on               Para 13          F
[2006] 1 Suppl. SCR 27         relied on               Para 14
1980 AIR (Punjab) 85           referred to             Para 15
      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5822
of 2019.                                                                G
      From the Judgment and Order dated 24.02.2015 of the High
Court of Punjab and Haryana at Chandigarh in RSA No. 4928 of 2012
(O&M).
      P. S. Patwalia, Sr. Adv., Ms. Natasha Dalmia, Vanshdeep Dalmia,
A. Venayagam Balan, Advs. for the Appellant.                            H
780                 SUPREME COURT REPORTS                     [2019] 9 S.C.R.


A          Neeraj Kr. Jain, Anupam Lal Das, Sr. Advs., Siddharth Jain, Ugra
      Shankar Prasad, H. S. Jalal, Aniket Jain, Raktim Gogoi, Anirudh Singh,
      Sarvswa Chhajer, Gautam Talukda, Advs. for the Respondents.
                The Judgment of the Court was delivered by
                HEMANT GUPTA, J. 1. Leave granted.
B
             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
C     of registration of sale deed was fixed as January 30, 2005. The suit for
      specific performance was filed on April 3, 2006.
            3. 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,
D     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
E     attorney to act on behalf of the appellant.
             4. Learned counsel for the appellant-plaintiff argued that in view
      of the judgment of this Court in Pankajakshi (D) through LRs & Ors.
      v. Chandrika & Ors.1, substantial question of law may not be required
      to be framed but in second appeal, the finding of fact recorded cannot
F     be interfered with even in terms of Section 41 of the Punjab Courts Act,
      19182.
             5. It is argued that the High Court has not recorded any finding
      which satisfies the tests laid down in Section 41 of the Punjab Act. It is
      further argued that though the first power of attorney dated September
      29, 1999 was not in respect of land in question but in the subsequent
G
      power of attorney dated September 14, 2005, the appellant has ratified
      all the acts of the Attorney Dhanwant Singh including the purchase of
      movable and immovable property anywhere in her name. It is argued
      1
          (2016) 6 SCC 157
      2
          for short, ‘Punjab Act’
H
       RANDHIR KAUR v. PRITHVI PAL SINGH & ORS.                              781
                 [HEMANT GUPTA, J.]

that the agreement dated November 5, 2004 was entered into by the            A
appellant through her son Dhanwant Singh in whose favour registered
power of attorney was executed on September 14, 2005. It is the said
Dhanwant Singh who has paid the amount to the defendants. The plea
of the defendants that Dhanwant Singh was not authorised to act on
behalf of his mother is wholly untenable as the defendants having received
                                                                             B
the amount from Dhanwant Singh. The finding that sum of Rs.13,50,000/
- was paid by the appellant through Dhanwant Singh has been accepted
by the High Court when the Court recorded the following findings:
      “17. Adverting to the facts of the case in hand, agreement of sale
      dated November 05, 2004 (Ex.P-1) was executed by appellants/
      defendants No. 1 and 2 on their behalf as well as on behalf of         C
      defendants No. 3 and 4, on receipt of a sum of `13.5 lacs as
      earnest money. Though, amount of earnest money has been
      disputed by learned counsel for appellants-defendants No. 1 and
      2 but there is no cogent and convincing evidence in this regard.
      So, it cannot be safely concluded that agreement of sale (Ex.P-1)      D
      was executed by defendants No.1 and 2 on receipt of a sum of
      Rs.13.5 lacs as an earnest money. Execution of document has
      also not been otherwise disputed by appellants-defendants and
      respondent-plaintiff. Otherwise also, no amount of oral evidence
      can be taken into consideration and pales into insignificance, in
      view of a recital contained in document.”                              E

       6. In view of the findings recorded, it is argued that the High
Court committed material illegality in declining the relief of specific
performance on the ground that Dhanwant Singh was not authorised to
act on behalf of the appellant and, that the appellant has not appeared as
a witness herself.                                                           F

      7. It is also argued that defendants have not raised any plea in the
written statement that Dhanwant Singh was not the authorised
representative of the plaintiff to enter into agreement on her behalf.
       8. On the other hand, Mr. Neeraj Kumar Jain, learned senior           G
counsel appearing for the defendants, submitted that first power of
attorney dated September 29, 1999 registered on January 18, 2000 does
not relate to land in question nor it empowers Dhanwant Singh to purchase
any other land. The power of attorney executed in favour of Dhanwant
Singh on September 14, 2005 empowering him to purchase movable or
                                                                             H
782             SUPREME COURT REPORTS                            [2019] 9 S.C.R.


A     immovable property but such power of attorney relates to purchase in
      future and not in respect of the agreement already executed. It is argued
      that plaintiff has never intimated the defendants about Dhanwant Singh,
      as being the attorney of the plaintiff. The High Court was justified in
      interfering in the second appeal as the decision of the courts below was
      contrary to law as the findings recorded by the trial court and the appellate
B
      court is not based upon facts on record.
              9. This Court in Kirodi (since deceased) through his LR v. Ram
      Parkash & Ors.3 has held that judgments in Chand Kaur(D) through
      LRs. v. Mehar Kaur(D) through LRs4 and Surat Singh(D) v. Siri
      Bhagwan & Ors.5, are contrary to the Constitution Bench judgment in
C     Pankajakshi case, therefore, not correct law. It, thus, transpires that in
      terms of the Constitution Bench judgment, substantial questions of law
      are not required to be framed in second appeal but, the jurisdiction of the
      High Court is not to reverse the finding of facts in terms of Section 41 of
      the Punjab Act. The jurisdiction of the High Court in second appeal is
D     circumscribed by the provisions of Section 41 of the Punjab Act. The
      first ground is that decision being contrary to law or to some custom or
      usage having the force of law. The argument of Mr. Jain is that decision
      of the first appellate court is contrary to law as the plaintiff has failed to
      prove readiness and willingness to perform the agreement. The readiness
      and willingness to perform a contract is a finding of fact on the basis of
E     oral and documentary evidence led by the parties. The first appellate
      court has recorded the following findings on the question of readiness
      and willingness of the plaintiff:
             “19. … Now what is to be seen if both the parties appeared to be
             at fault because when the agreement to sell has been provide and
F            the defendant Nos. 1 and 2 have also shown that they are entering
             into an agreement on behalf of defendant Nos. 3 and 4 being their
             power of attorney but till date the defendant Nos. 1 and 2 failed to
             produce any power of attorney in their favour on behalf of
             defendant Nos. 3 and 4 and defendant Nos. 3 and 4 had contested
G            the bonafide of defendant Nos. 1 and 2 to enter into an agreement
             to sell on their behalf when there is no general power of attorney
             in favour of defendant Nos. 1 and 2. It appears that both the
      3
        2019 SCC OnLine SC 759
      4
        2019 SCC OnLine SC 426
      5
H       (2018) 4 SCC 562
       RANDHIR KAUR v. PRITHVI PAL SINGH & ORS.                                   783
                 [HEMANT GUPTA, J.]

      parties were playing hide and seek. Thus, the defendants now                A
      cannot take the plea that they had no knowledge that plaintiff
      Randhir Kaur had executed any power of attorney in favour of
      Dhanwant Singh. The plaintiff approached the Advocate,
      purchased the stamp for filing the suit and filed the suit for specific
      performance and there is no counter claim on behalf of the
                                                                                  B
      defendants and the plaintiffs were entitled either to a money decree
      or forfeiture of their earnest money as per agreement because
      there was no readiness and willingness on the part of the plaintiff.
      Therefore, it has to be held that the plaintiff was ready and willing
      to perform her part of contract.”
       10. The first and the foremost question arises in respect of scope         C
of interference in second appeal in Punjab and Haryana is governed by
Section 41 of the Punjab Act. Prior to amendment in the Code of Civil
Procedure vide CPC (Amendment) Act, 1976 w.e.f. February 1, 1977,
the scope of interference in second appeal under the Punjab Act as well
as under the Code of Civil Procedure as it existed before the amendment           D
was on similar grounds. Section 41 of the Punjab Act and Section 76 of
CPC as it existed prior to April 1, 1977 reads as under:
     Section 41 of Punjab Act              Section 76 of CPC
     Second appeals—(1) An appeal          100 (1).      Save where otherwise
     shall lie t o the High Court from     expressly provided in the body of
     every decree passed in appeal by      this Code or by any other law for      E
     any Court subordinate to the          the time being in force, an appeal
     H igh Court on any of the             shall lie to the H igh Court from
     following grounds, namely :           every decree passed in appeal by
     (a) the decision being contrary to    any court subordinate to a High
     law or to some custom or usage        Court on any of the following
     having the force of law;              grounds, namely:
     (b) the decision having failed to     (a) the decision being contrary to
     determine some material issue of      law or to some usage havin g the       F
     law or custom or usage having         force of law;
     the force of law;                     (b) the decision having failed to
     (c) a substantial error or defect     determine some material issue of
     in the procedure provided by the      law or usage having the force of
     Code of Civil Procedure 1908 [V       law;
     of 190 8] , or by any other law for   (c) a substantial error or defect in
     the time being in force which         the procedure provided by this Code
     may possibly have produced            or by any other law for the time       G
     error or defect in the decision of    being in force, which may possibly
     the case upon the merits;             have produced error or defect in the
                                           decision of the case upon the
                                           merits.

     (2) An appeal may lie under this      (2) An appeal may lie under this
     section from an appellate decree      Section from an appellate decree
     passed ex parte.                      passed ex parte.
                                                                                  H
784               SUPREME COURT REPORTS                            [2019] 9 S.C.R.


A             11. 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.
B            12. Some of the judgments of this Court dealing with the scope of
      the old Section 100 are required to be discussed. In a judgment reported
      in Deity Pattabhiramaswamy v. S. Hanymayya & Ors.6 – Three
      Judges, while examining the scope of Section 100 of CPC, held as under:
               “15. The finding on the title was arrived at by the learned District
C              Judge not on the basis of any document of title but on a
               consideration of relevant documentary and oral evidence adduced
               by the parties. The learned Judge, therefore, in our opinion, clearly
               exceeded his jurisdiction in setting aside the said finding. The
               provisions of Section 100 are clear and unambiguous. As early as
               1891, the Judicial Committee in Durga Chowdhrani v. Jawahir
D              Singh [17 IA 122] stated thus:
                  “There is no jurisdiction to entertain a second appeal on the
                  ground of erroneous finding of fact, however gross the error
                  may seem to be”. The principle laid down in this decision has
                  been followed in innumerable cases by the Privy Council as
E                 well as by different High Courts in this country. Again the
                  Judicial Committee in Midnapur Zamindari Co. v. Uma
                  Charan [29 CWN 131] further elucidated the principle by
                  pointing out:
                  “If the question to be decided is one of fact it does not involve
F                 an Issue of law merely because documents which are not
                  instruments of title or otherwise the direct foundation of rights
                  but are merely historical documents, have to be construed.”
               16. Nor does the fact that the finding of the first appellate court is
               based upon some documentary evidence make it any the less a
G              finding of fact (See Wali Mohammad v. Mohammad Baksh, 11
               Lahore 199). But, notwithstanding such clear and authoritative
               pronouncements on the scope of the provisions of Section 100 of
               the CPC, some learned Judges of the High Courts are disposing
               of second appeals as if they were first appeals. This introduces,
      6
H         AIR 1959 SC 57
          RANDHIR KAUR v. PRITHVI PAL SINGH & ORS.                                785
                    [HEMANT GUPTA, J.]

         apart from the fact that the High Court assumes and exercises a          A
         jurisdiction which it does not possess, a gambling element in the
         litigation and confusion in the mind of the litigant public. This case
         affords a typical illustration of such interference by a Judge of the
         High Court in excess of his jurisdiction under Section 100 of the
         CPC. We have, therefore, no alternative but to set aside the decree
                                                                                  B
         of the High Court on the simple ground that the learned Judge of
         the High Court had no jurisdiction to interfere in second appeal
         with the findings of fact given by the first appellate Court based
         upon an appreciation of the relevant evidence. In the result, the
         decree of the High Court is set aside and the appeal is allowed
         with costs throughout.”                                                  C
       13. Later, in a judgment, reported in Kshitish Chandra Bose v.
Commissioner of Ranchi7 - three Judges, of this Court held that the
High Court has no jurisdiction to entertain second appeal on findings of
fact even if it was erroneous. The Court held as follows:-
         “11. On a perusal of the first judgment of the High Court we are         D
         satisfied that the High Court clearly exceeded its jurisdiction under
         Section 100 in reversing pure concurrent findings of fact given by
         the trial court and the then appellate court both on the question of
         title and that of adverse possession. In the case of Kharbuja
         Kuer v. Jangbahadur Rai [AIR 1963 SC 1203 : (1963) 1 SCR                 E
         456] this Court held that the High Court had no jurisdiction to
         entertain second appeal on findings of fact even if it was erroneous.
         In this connection this Court observed as follows:
            “It is settled law that the High Court has no jurisdiction to
            entertain a second appeal on the ground of erroneous finding          F
            of fact.
            As the two courts approached the evidence from a correct
            perspective and gave a concurrent finding of fact, the High
            Court had no jurisdiction to interfere with the said finding.”
         To the same effect is another decision of this Court in the case         G
         of R. Ramachandran Ayyar v. Ramalingam Chettiar [AIR 1963
         SC 302 : (1963) 3 SCR 604] where the Court observed as follows:


7
    (1981) 2 SCC 103
                                                                                  H
786                 SUPREME COURT REPORTS                          [2019] 9 S.C.R.


A                   “But the High Court cannot interfere with the conclusions of
                    fact recorded by the lower appellate court, however erroneous
                    the said conclusions may appear to be to the High Court,
                    because, as the Privy Council observed, however, gross or
                    inexcusable the error may seem to be there is no jurisdiction
                    under Section 100 to correct that error.”
B
            14. In another judgment reported in Gurdev Kaur & Ors. v. Kaki
      & Ors.8, the rationale behind permitting second appeal on question of
      law after the amendment was considered. It was held that after the
      1976 amendment, the scope of Section 100 has been drastically curtailed
      and narrowed down. The Court held as under:
C
               “71. The fact that, in a series of cases, this Court was compelled
               to interfere was because the true legislative intendment and scope
               of Section 100 CPC have neither been appreciated nor applied. A
               class of judges while administering law honestly believe that, if
               they are satisfied that, in any second appeal brought before them
D              evidence has been grossly misappreciated either by the lower
               appellate court or by both the courts below, it is their duty to
               interfere, because they seem to feel that a decree following upon
               a gross misappreciation of evidence involves injustice and it is the
               duty of the High Court to redress such injustice. We would like to
E              reiterate that the justice has to be administered in accordance
               with law.
               xx                 xx                               xx
               73. The Judicial Committee of the Privy Council as early as in
               1890 stated that there is no jurisdiction to entertain a second appeal
F              on the ground of an erroneous finding of fact, however gross or
               inexcusable the error may seem to be, and they added a note of
               warning that no court in India has power to add to, or enlarge, the
               grounds specified in Section 100.”
             15. The Division Bench of Punjab and Haryana High Court in a
G     judgment reported in Sadhu v. Mst. Kishni9 set aside the judgment of
      the learned Single Bench in an intra court appeal in terms of the provisions
      of law as it existed prior to 1976, and held as under:

      8
          (2007) 1 SCC 546
      9
H         1980 AIR (Punjab) 85
       RANDHIR KAUR v. PRITHVI PAL SINGH & ORS.                               787
                 [HEMANT GUPTA, J.]

      “12. The scope of second appeal as envisaged by section 100 of          A
      the Civil Procedure Code and section 41 of the Punjab Courts
      Act has been a matter of judicial scrutiny a number of times by
      this court as well as by the final court, that is, the Suprems Court
      of India. The learned counsel for the appellant has actually made
      a reference in this regard to Detty Paitabhiramaswami v. S.
                                                                              B
      Hanymayya [AIR 1959 SC 57.], Madamanchi Ramappa
      v. Muthaluru Bojjappa [AIR 1962 SC 1933.], Bithal Dass
      Khanna v. Hafiz Abdul Hai [1969 S.C. Notes 481.] and Afsar
      Shaikh v. Soleman Bibi [(1976) 2 SCC 142 : AIR 1976 SC 163.]
      . These pronouncements; in a nutshell, lay down that there is no
      jurisdiction to entertain a second appeal on the ground of a            C
      erroneous finding of fact, however gross or inexecusable the error
      may seem to be. Nor does the fact that the finding of the first
      appellate Court is upon some documentary evidence make it any
      the less a finding of fact. A Judge of the High Court has, therefore,
      no jurisdiction to interfere in second appeal with the findings of
                                                                              D
      fact given by the first appellate court based upon an appreciation
      of the relevant evidence. Their Lordships have further observed
      that the only ground on which such an appeal can be said to be
      competent is where there is an error in law or procedure and not
      merely on an error on a question of fact.Top of Form
                       xx                  xx               xx                E

      14. In view of the above discussion, we are clearly of the view
      that the learned Single Judge exceeded his jurisdiction in setting
      aside the findings of the fact on issue No. 2. The provisions of
      section 100 being clear and unambiguous, there was no scope for
      interference with those findings. We thus allow the appeal and          F
      set aside the judgment of the learned Single Judge and affirm the
      judgment and decree passed by the District Judge. The parties
      are, however left to bear their own costs.”
       16. A perusal of the aforesaid judgments would show that the
jurisdiction in second appeal is not to interfere with the findings of fact   G
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 fact.                      H
788             SUPREME COURT REPORTS                            [2019] 9 S.C.R.


A            17. 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 witness.
B
             18. 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
C     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 court.
             19. Learned counsel for the respondents have not raised any
      argument that the first appellate court has failed to determine some material
D     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
E     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 Singh.
             20. The agreement to purchase the land was entered into by
      the plaintiff through her son Dhanwant Singh when a sum of
F     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
G     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
H     day i.e. January 31, 2005 which will be deemed to be the date for
        RANDHIR KAUR v. PRITHVI PAL SINGH & ORS.                                789
                  [HEMANT GUPTA, J.]

performance of the agreement and on the said date, Dhanwant Singh               A
appeared with balance sale consideration and marked himself present.
       21. 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,          B
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 Singh.
        22. In view of the above, the judgment of the High Court is set
aside and the decree passed by the lower appellate court is restored.           C
The appellant is granted two months’ time to pay balance sale consideration
to defendant Nos. 1 and 2 and upon receiving the amount, the defendants
shall execute the sale deed in favour of the plaintiff. If the defendants
fail to receive the amount, the plaintiff will be at liberty to deposit the
amount with the executing court and seek execution of the decree in
accordance with law.                                                            D

      23. The appeal is allowed. No costs.


Divya Pandey                                                  Appeal allowed.
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