Second Appeal Jurisdiction U/Sec 41 Punjab Courts Act 1918 Cannot Be Exercised For Re­appreciation Of Evidence: Supreme Court

The Supreme Court observed that second appeal jurisdiction under Section 41 of the Punjab Courts Act 1918, cannot be exercised for re­appreciation of evidence. 

"Though it is not necessary to formulate a substantial question of law, the jurisdiction under Section 41 of the Punjab Act would permit only such decisions to be considered in second appeal which are contrary to law or to some custom or usage having the force of law, or when the courts below have failed to determine some material issue of law or custom or usage having the force of law", the bench of Justices BR Gavai and CT Ravikumar observed.

In this case, the Punjab and Haryana High Court, allowing second appeal filed by the defendant in a specific performance suit, reversed the concurrent findings recorded by the trial court and the Appellate Court.

In appeal before the Apex Court, the plaintiff reliance was placed on a recent SC judgment in Satyender vs Saroj 2022 LiveLaw (SC) 679. Referring to the said judgment, the court observed:

"It would thus be clear that this Court has held that, though it is not necessary to formulate a substantial question of law, the jurisdiction under Section 41 of the Punjab Act would permit only such decisions to be considered in second appeal which are contrary to law or to some custom or usage having the force of law, or when the courts below have failed to determine some material issue of law or custom or usage having the force of law. The Court held that second appeal is not a forum where the court is to re­examine or re­appreciate the question of fact settled by the trial court or the Appellate Court. 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."

Taking note of the factual aspects of the case, the court observed that the High Court has erred in interfering with the concurrent findings of fact arrived at by the trial court and the Appellate Court. While allowing the appeal, the bench said:

"In the present case, it would be seen that out of an agreed amount of Rs.1,65,000/­, the appellant­-plaintiff has already paid an amount of Rs.1,50,000/­ on or before 23rd August 1985. He was already put in possession at the time of execution of the agreement(s) to sell. The balance sale consideration that was to be paid was only about 10% of the total agreed amount. Though the sale deed was to be executed upon the respondents-­defendants getting the ITC Certificate and getting the revenue records corrected in the year 1986, in view of their greed since the prices were escalating, the respondents­-defendants had tried to create 3rd party rights. In these circumstances, the appellant­-plaintiff was required to file the suit. The respondents-­defendants have also asserted in their written statement that they were entitled to alienate the suit property. 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  respondents­-defendants 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."

Case details

Shivali Enterprises vs Godawari (D) | 2022 LiveLaw (SC) 762 | CA 8904-­8907 OF 2010 | 13 September 2022 | Justices BR Gavai and CT Ravikumar

Adv Rishi Malhotra for appellant, Sr. Adv S.R. Singh for respondents

Headnotes

Punjab Courts Act, 1918 ; Section 41 - Second appeal is not a forum where the court is to re­examine or re­appreciate the question of fact settled by the trial court or the Appellate Court - 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 - Referred to Satyender vs Saroj 2022 LiveLaw (SC) 679. (Para 16-17)

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