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Mehboob-Ur-Rehman (Dead) through L.Rs. Vs. Ahsanul Ghani - (Supreme Court) (15 Feb 2019)

Court could hear appeal on any other substantial question of law not formulated by it, but only after recording reasons that, case involves such a question



The Appellant had filed the suit for specific performance of Agreement to Sell that was decreed by the Court of Additional Civil Judge, by the judgment and decree. However, the decree so passed by the trial Court was reversed by the Additional District Judge, in its judgment on the ground that, the Plaintiff had failed to aver and prove his continuous readiness and willingness to perform his part of the contract. The High Court in its impugned judgment while dismissing the second appeal filed by the Plaintiff-Appellant, affirmed the decree passed by the First Appellate Court. Aggrieved, the Plaintiff-Appellant has preferred present appeal.

The averment and proof on readiness and willingness to perform his part of the contract has been the threshold requirement for a Plaintiff who seeks the relief of specific performance. The principle that the requirement of such averment had not been a matter of form, applied equally to the proposition for amendment at the late stage whereby, the Plaintiff only attempted to somehow improve upon the form of the plaint and insert only the phraseology of his readiness and willingness. In the present case, the Plaintiff-Appellant had failed to aver and prove his readiness and willingness to perform his part of the contract. The Trial Court made a rather assumptive observation that, he had proved such readiness and willingness. Thereafter, the Plaintiff sought leave to amend the plaint only when the ground to that effect was taken in the first appeal by the Defendant. The late attempt to improve upon the pleadings of the plaint at the appellate stage was only an exercise in futility in the present case.

As per Section 100 of Code of Civil Procedure, 1908 (CPC), the appeal would lie to the High Court from the decree passed in appeal by any Court subordinate only if the High Court is satisfied that the case involves a substantial question of law; such question is required to be stated in the Memorandum of Appeal; the High Court is required to formulate the question on being satisfied that the same is involved in the case; the appeal is to be heard on the question so formulated; and at the time of hearing, the Respondent could urge that the case does not involve such a question. The proviso to Sub-section (5) of Section 100 of CPC makes it clear that, the Court could hear the appeal on any other substantial question of law not formulated by it, but only after recording the reasons that the case involves such a question.

The proviso to Sub-section (5) of Section 100 of CPC is not intended to annul the other requirements of Section 100 and it cannot be laid down as a matter of Rule that irrespective of the question/s formulated, hearing of the second appeal is open for any other substantial question of law, even if not formulated earlier. The said proviso, by its very nature, could come into operation only in exceptional cases and for strong and convincing reasons, to be specifically recorded by the High Court. There being no such strong and convincing reason in the present case to formulate and hear the second appeal on any other question of law, the High Court cannot be faulted in rejecting the contentions urged on behalf of the Plaintiff-Appellant. The relief of specific performance of agreement in question has rightly been declined by the First Appellate Court and the High Court. The appeal stands dismissed.


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