Summary
The Court set aside a decree for specific performance granted on first appeal without proper reassessment of the evidence or compliance with Order XLI Rule 31. The High Court had also relied on a new affidavit offering to buy the property with tenants, contrary to the plaint, without a proper amendment. The Supreme Court decided the merits rather than remanding: willingness was not proved and the trial decree was restored. The defendant was directed to refund the advance with eighteen per cent interest within eight weeks.
Issues
- Whether the High Court properly discharged its first-appellate duties under Section 96 and Order XLI Rule 31 CPC.
- Whether a new affidavit could replace the plaintiff’s pleaded position without amendment.
- Whether the plaintiff established readiness and willingness, and what refund relief should follow.
Provisions considered
- Section 96; Order XLI Rule 31, Code of Civil Procedure, 1908The first appellate court had to assess the evidence and issues independently, give reasons and address the trial court’s findings. Its perfunctory disposal did not comply. (¶¶ 6, 6.1, 6.2, 6.3, 7)
- Order VI Rule 17, Code of Civil Procedure, 1908The new contrary case could not be introduced and accepted merely through an affidavit on appeal. A proper amendment application, if legally permissible, was required. The Court did not grant such an amendment. (¶ 8)
Held
- A first appeal entails rehearing on fact and law. The judgment must show independent appreciation of the evidence, determination of the material issues and reasons, particularly when reversing the trial court. Here there was total non-compliance rather than merely a defect in the form of the points framed. (¶¶ 6, 6.1, 6.2, 6.3, 7)
- The plaint and notice insisted on eviction of tenants before conveyance. The High Court improperly relied on a later affidavit expressing willingness to buy with tenants without amendment of that contrary pleaded position. The possibility of a proper amendment application did not validate the course actually adopted. (¶¶ 2.1, 2.2, 8)
- Readiness and willingness both had to be proved. The trial court’s adverse finding on willingness was justified on the pleadings and evidence considered. The seller’s failure to evict tenants did not remove that requirement. The Supreme Court therefore decided the appeal on merits and declined remand. (¶¶ 7, 8, 9)
- Non-payment of the advance refund did not justify upholding the erroneous specific-performance decree. The trial decree was restored, with a direction to repay 3,60,001 rupees with eighteen per cent annual interest from the agreement until realisation within eight weeks. (¶¶ 2.3, 10, 11)
Result
Both appeals allowed; High Court judgment set aside and trial decree restored. Defendant to refund 3,60,001 rupees with eighteen per cent annual interest from the agreement until realisation within eight weeks. No costs; pending applications disposed of.