AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2019 (7) TMI 2024
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....he 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. 4. Learned Counsel for the Appellant-Plaintiff argued that in view of the judgment of this Court in Pankajakshi (D) through L.Rs and Ors. v. Chandrika and Ors. (2016) 6 SCC 157, substantial question of law may not be required to be framed but in second appeal, the finding of fact recorded cannot be interfered with even in terms of Section 41 of the Punjab Courts Act, 1918 for short, 'Punjab Act'. 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 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 that the agreement dated November 5, 2004 was entered into by the Appellant....
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.... 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 court is not based upon facts on record. 9. This Court in Kirodi (since deceased) through his LR v. Ram Parkash and Ors. 2019 SCC OnLine SC 759 has held that judgments in Chand Kaur (D) through LRs. v. Mehar Kaur (D) through LRs. 2019 SCC OnLine SC 426 and Surat Singh(D) v. Siri Bhagwan and Ors. (2018) 4 SCC 562, are contrary to the Constitution Bench judgment in 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 circumscribed by the provisions of Section 41 of the Punjab Act. The first ground is that decision being contrary to law or to ....
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....ction 41 of Punjab Act Section 76 of CPC Second appeals-(1) An appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court on any of the following grounds, namely : (a) the decision being contrary to law or to some custom or usage having the force of law; (b) the decision having failed to determine some material issue of law or custom or usage having the force of law; (c) a substantial error or defect in the procedure provided by the Code of Civil Procedure 1908 [V of 1908], or by any other law for the time being in force which may possibly have produced error or defect in the decision of the case upon the merits; (2) An appeal may lie under this section from an appellate decree passed ex parte 100 (1). Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any court subordinate to a High Court on any of the following grounds, namely: (a) the decision being contrary to law or to some usage having the force of law; (b) the decision having failed to determine some material issue of law or u....
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....onouncements on the scope of the provisions of Section 100 of the Code of Civil Procedure, some learned Judges of the High Courts are disposing of second appeals as if they were first appeals. This introduces, apart from the fact that the High Court assumes and exercises 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 Code of Civil Procedure. We have, therefore, no alternative but to set aside the decree 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. 13. Later, in a judgment, reported in Kshitish Chandra Bose v. Commissioner of Ranchi (1981) 2 SCC 103-three Judges, of this Court held that the High Court has no jurisdiction to entertain second appeal on findings....
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....involves injustice and it is the duty of the High Court to redress such injustice. We would like to 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 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 judgment reported in Sadhu v. Mst. Kishni 1980 AIR (Punjab) 85 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: 12. The scope of second appeal as envisaged by Section 100 of the Code of Civil Procedure 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 Supremes Court of India. The learned Counsel for the Appellant has actually made a reference in this regard to Detty Pai....
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....witness. 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 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 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 Singh. 20. The agree....