Allahabad High Court
Vishal And Another vs Rakesh Kumar And 5 Others on 22 January, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:10768
Court No. - 36
Case :- SECOND APPEAL No. - 1067 of 2024
Appellant :- Vishal And Another
Respondent :- Rakesh Kumar And 5 Others
Counsel for Appellant :- Ghanshyam Pandey,Subodh Kumar Rai
Counsel for Respondent :- Bibhuti Narayan Singh
Hon'ble Kshitij Shailendra,J.
1. Heard learned counsel for the parties and perused the material appended alongwith memo of appeal as well as stay application.
2. The appellants are defendants in a suit for specific performance of a registered agreement for sale dated 07.06.2001. The trial court denied the relief of specific performance but decreed the suit for refund of earnest money of Rs.20,000/-. Though no appeal was filed by the defendants-appellants against the money decree, the plaintiff-respondents filed Civil Appeal No.34 of 2022 (Rakesh Kumar and another v. Jeera Devi and others) which has been allowed by the impugned judgment and order dated 09.09.2024 decreeing the suit for specific performance of the agreement, issuing a direction to the appellants to execute the sale deed.
3. Assailing the order of the first appellate court, learned counsel for the appellants submits that the plaintiffs-respondents failed to prove readiness and willingness of getting the sale deed executed and the trial court has recorded a clear finding to the effect that no evidence was brought on record establishing the fact that notice dated 24.08.2002 sent through registered post was ever served upon the defendants-appellants. Further no evidence was led to establish that plaintiffs ever appeared before the office of Sub-Registrar concerned showing their readiness and willingness to get the sale deed executed. It is urged that first appellate court has erred in granting a decree for specific performance in the facts and circumstances of the present case.
4. Per contra, Shri B.N. Singh, learned counsel for the respondents submits that the trial court did not look into Paper No.9-C which was a receipt concerning submission of application dated 05.09.2002 before the Sub-Registrar concerned where the plaintiffs appeared for getting the sale deed executed but defendants failed to appear. Further as regards the address, finding has been recorded that there being no change in the address of the defendants on record, notices sent by registered post would be deemed to be served on them.
5. Having heard learned counsel for the parties. I find that when the trial court referred to the documentary evidences led by the parties, it referred to papers No.7-Ka, 8-Ga and jumped to paper No.38-C. The reference of papers does not include description of Paper No.9-C which is a copy of receipt concerning submission of application dated 05.09.2002 before the Sub-Registrar, Robertsganj. In this view of the matter, the finding recorded to the effect that there was no evidence to establish appearance of the plaintiffs in the office of the Sub-Registrar to get the sale deed executed is apparently perverse and is based upon non-consideration of paper No.9-C which has been thoroughly discussed by the first appellate court in paragraphs No.20 to 23. Further as regards service of notice dated 24.08.2002, the Court finds that the first appellate court has critically examined the record and has found that the address of the defendants mentioned in the notice as well as other papers was same, there being no dispute about the fact that notices were sent through registered post. Since findings have been recorded that the address of the defendants was correct and complete, the presumption of due service would arise under Section 27 of the General Clauses Act, 1897 which reads as under :-
"27. Meaning of service by post.- Where any [Central Act] or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression "serve" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
6. In view of the above, findings recorded by the trial court as regards service of notice as well as alleged non-appearance before the Sub-Registrar concerned are found to be perverse and contrary, the findings recorded by the first appellate court in 'paragraphs 20 to 23' of the judgment dated 09.09.2024 are found to be based upon proper appreciation of evidence on record.
7. In Kamti Devi (Smt.) and Anr. v. Poshi Ram (2001) 5 SCC 311, the Supreme Court came to the conclusion that the finding reached by the first appellate court cannot be interfered with in a second appeal as no substantial question of law would have flowed out of such a finding. In Thiagarajan v. Sri Venugopalaswamy B. Koil, (2004) 5 SCC 762, the Supreme Court has held that the High Court in its jurisdiction under Section 100 C.P.C. is not justified in interfering with the findings of fact and that it is the obligation of the courts of law to further clear intendment of the legislature and not frustrate it by excluding the same and where findings of fact by the lower appellate Court are based on evidence, the High Court in second appeal cannot substitute its own findings on reappreciation of evidence merely on the ground that another view was possible.
8. Similar view has been taken in Kondiba Dagadu Kadam vs Savitribai Sopan Gujar and others, (1999) 3 SCC 722 by observing that disturbance in findings of fact would be contrary to limitations imposed by section 100 C.P.C. The Supreme Court again reminded in Commissioner, Hindu Religious & Charitable Endowments vs. P. Shanmugama (2005) 9 SCC 232 that the High Court has no jurisdiction in second appeal to interfere with the findings of fact. The Apex Court, in State of Kerala v. Mohd. Kunhi (2005) 10 SCC 139 reiterated the same principle by observing that by such interference, the High Court would go beyond the scope of Section 100 of the Code of Civil Procedure.
9. In Madhavan Nair v. Bhaskar Pillai (2005) 10 SCC 553, the Supreme Court observed that even if the first appellate court commits an error in recording a finding of fact, that itself will not be a ground for the High Court to upset the same.
10. The view taken in the aforesaid decisions has been reiterated by the Apex Court in Gurdev Kaur and others vs. Kaki and others, 2007 (1) SCC 546.
11. Recently, the Supreme Court has seriously condemned the approach of the High Courts to entertain a challenge even when no substantial question of law is involved and appeals are admitted on inappropriate questions which cannot be said to be substantial questions. The proposition has been laid down in Civil Appeal Nos.14138- 14139 of 2024, Jaichand (dead) through LRs and others Vs. Sahnulal and another, decided on 10.12.2024.
12. No substantial question of law arises for consideration.
13. The appeal fails and is dismissed under Order XLI Rule 11 of Civil Procedure Code, 1908.
Order Date :- 22.1.2025
Jyotsana
