JUDGMENT
A.K. Patnaik, J.
1. This is an appeal under Section 100 read with Order 42, Rule 1 of the Civil Procedure Code, 1908. by the appellant-defendant against the judgment dated 10-6-1985 of the learned District. Judgc, Nagaon in T.A. No.4/84.
2. The brief facts of the case are that the respondent-plaintiff filed TS No. 14/80 in the Court of the learned Assistant District Judge, No. I, Nagaon for specific enforcement of contract for sale of land in respect of an area measuring 1K 4L covered by Dag No. 1843 in PP No. 1134 of Nagaon Town. The Plaintiff’s case in the said suit was that on 16-6-1979, the defendant executed a “Baina-nama” agreeing to sell the aforesaid land within 9 months for a total consideration of Rs. 20,000/-, of which Rs. 5,000/- was received by the defendant on 16-6-1979 “and the balance amount of Rs. 15.000/- was to be paid by the Plaintiff at the time of execution of the sale deed. Thereafter, the plaintiff offered to pay the balance consideration of Rs. 15,000/-several times to the defendant but the defendant avoided execution of the sale deed. Since the 9 months period as stipulated in the “Baina-nama” was to expire on 16-3-1980, the plaintiff informed the defendant on 12-3-1980 that she was willing to go to the house of the defendant for execution and registration of the sale deed. On 13-3-1980, the plaintiff was informed by the defendant’s advocate that the defendant was ready to execute the sale deed on 15-3-1980 but she wanted 15days time to remove her house from the land in question and that the possession would be delivered to the plaintiff on the same day. Accordingly, the plaintiff with her husband and the Sub-Registrar on commission arrived at the house of the defendant on 15-3-1980for execution and registration of the sale deed, but the defendant wanted 9 months time to vacate the land and refused to execute the sale deed and the Sub-Registrar returned without registering the document. It is on these facts, the plaintiff prayed for a decree directing the defendant to execute the sale deed, register the same and deliver vacant possession of the aforesaid land to the plaintiff. In the alternative the plaintiff prayed for refund of Rs. 5.000/- paid as earnest money and compensation of Rs. 1.550/- from the defendant.
3. The defendant contested the suit by filing written statement and taking a plea, inter alia, that the plaintiff failed to lender the balance consideration of Rs. 15,000/- on 15-3-1980 and hence the sale deed was not executed by the defendant and the earnest money of Rs.5,000/- was forfeited by the defendant. On the aforesaid pleadings, 10 issues were framed by the trial Court and evidence, oral and documentary, were adduced by the parties and the learned trial Court held that the plaintiff tendered the balance consideration of Rs. 15,000/- to the defendant before 16-3-1980 to get the sale deed executed by the defendant but the defendant avoided execution of the sale deed after the plaintif had offered to pay balance consideration for several times and decreed the suit for specific performance of the agreement for sale.
Against the judgment of the trial Court, the appellant-defendant preferred first appeal in the Court of the learned District Judge, Nagaon, but by judgment dated 10-6-1985 passed in TA No. 4/84, the learned District Judge, Nagaon, dismissed the appeal and affirmed the judgment and decree of the trial Court directing the defendant to execute the sale deed within 3 months on getting balance consideration of Rs. 15,000/- failing which the trial Court would execute the sale deed on deposit of the balance amount of Rs. 15,000/-within a fortnight from the date of expiry of the aforesaid of 3 months. It is this appellate judgment of the learned District Judge, Nagaon, passed in TA No. 4/84 which is under challenge in this appeal.
4. At the hearing, Mr. T.C. Khetri, learned counsel for the appellant, submitted that a reading of the impugned judgment of the learned District Judge, Nagaon, in the first appeal, on issue Nos. 8 and 9 would show that the learned District Judge, Nagaon, came to the finding that the plaintiff did not make any breach of terms of the contract and she had offered balance consideration of Rs. 15,000/- to the defendant mainly on the basis of the evidence of PW 2, Bhabani Sarma, the then Sub-Registrar, Nagaon, who had gone to the house of the defendant on commission for registration of the sale deed, but under Section 32 of the Indian Registration Act, 1908, only after the document is executed, it is presented for registration and hence the Sub-Registrar had no function to perform until the document was executed. Since, in the present case, admittedly the sale deed had not been executed by the defendant, it was no part of the statutory duties of the Sub-Registrar to go to the house of the defendant for registration and the evidence given by the Sub-Registrar was not that of a public officer with regard to something done in course of his public duties and should have been ignored by the trial and first appellate Courts. Mr. Khetri further submitted that at any rate the said Sub-Registrar, PW 2, has stated in his evidence that although he undertook payment of the balance consideration of Rs. 15,000/-, the document was not executed and this material piece of evidence of PW 2 would go to show that the plaintiff did not offer to pay the balance consideration of money even on 15-3-1980. Mr. Khetri cited the decision in the case of Pratap Chandra v. Kamala Kanta, AIR 1978 SC 153, wherein it has been held that if a finding of fact is arrived at by the Court after completely ignoring a particular piece of evidence which would unsettle the finding, it suffers from a substantial error or defect in the procedure and can be interfered with in a second appeal by the High Court. Mr. Khetri went on to argue that since the sale deed could only be executed by the defendant on payment of the balance consideration of Rs. 15.000/ – but the plaintiff had not offered the said amount of Rs. 15,000/-, the plaintiff had failed to prove that he was ready and willing to perform his part of the contract and Section 16(c) of the Specific Relief Act, 1963, was a bar for a decree of specific enforcement of the contract in such a case. Mr. Khetri also relied on Section 50 of the Indian Contract Act, 1872, for the proposition that the promise to pay the sum of Rs. 15,000/ – had to be performed by the plaintiff within the time limit of 16-3-1980 prescribed by the defendant in “Baina-nama” dated 16-6-1979. Mr. Khetri further submitted that under Section 20 of the Specific Relief Act, 1963, it is not in every case that the Court would decree specific performance of a contract and that it is within the discretion of the Court to refuse a decree for specific performance of a contract in appropriate cases and the present case is one in which the Court should have exercised its discretion and refused the decree for specific performance of contract.
5. In reply, Mr. B.K. Goswami, learned counsel for the respondent-plaintiff, submitted that under Section 100 of the Civil Procedure Code, 1908, the High Court cannot interfere with the findings of fact of the first appellate Court and the High Court’s jurisdiction is restricted to only substantial question of law. The findings of the first appellate Court that the plaintiff had offered a sum of Rs. 15,000/- to the defendant towards balance consideration for execution of the sale deed was a finding of fact based on the evidence, documentary and oral, led by the parties. Mr. Goswami stated that after considering the documentary evidence contained in Exts. 2,3,4 and 6 and oral evidence of the witnesses, the first appellate Court had arrived at the aforesaid finding of facts which cannot be disturbed by this Court except on the ground that the said finding of fact is perverse but no such case of perversity of the finding of fact arrived at by the first appellate Court has been made out in the grounds of appeal. Mr. Goswami further submitted that Explanation (i) to Section 16(c) of the Specific Relief Act, 1963 and Section 51 of the Indian Contract Act, 1872 make it abundant clear that the requirement of law is not that the plaintiff has actually to tender the payment of money to the defendant but must aver and proof that he is ready and willing to perform his part of the contract. He also submitted that the discretion of the Court to decree or refuse specific performance of a contract under Section 20 is not arbitrary but had to be exercised on sound and reasonable judicial principles and in the present case since the said discretion has been exercised by both the trial and appellate Courts in favour of the plaintiff, this Court ought not to interfere with the said exercise of discretion in a second appeal under Section 100 of the Civil Procedure Code, 1908.
6. I find suifficient force in the aforesaid submissions of Mr. Goswami, learned counsel for the respondent. In a suit for specific performance of a contract involving payment of money, the requirement of Section 16 of the Specific Relief Act, 1963, is not that the plaintiff must prove that he has actually tendered payment of money to the defendant but to aver and prove that he was always ready and willing to perform the essential terms of the contract which were to be performed by him. This position of law would be clear from Section 16(c) read with Explanation (i) of the Specific Relief Act, 1963, as well as Section 51 of the Indian Contract Act, 1872. The question, therefore, is as to whether the plaintiff was ready and willing to perform the essential term of the contract, namely payment of balance consideration of Rs. 15.000/- for execution of the sale deed and this is a question of fact to be determined by the Court on the basis of oral and documentary evidence produced before it. In the present case, a reading of the impugned judgment of the first appellate Court would show that the first appellate Court has considered the evidence of the plaintiff, Bhabani Sarma, the then Sub-Registrar, and the defendant as well as the letters and notices exchanged between the parties (Exts. 2, 3, 4 and 6) and has arrived at the finding of fact that although the plaintiff offered to pay Rs. 15,000/- to the defendant, the defendant refused to accept the said balance money of Rs. 15,000/- and execute the sale deed and”wanted 9 months time to remove constructions from the land. This finding of fact of the first appellate Court on the question of readiness on the part of the plaintiff to perform essential term of the contract however erroneous it may be cannot be interfered with by this Court in a second appeal under Section 100, C.P.C., which is confined to only substantial questions of law.
7. The decision of the Orissa High Court in the case of Pratap Chandra v. Kamala Kanta, AIR 1978 Ori 153, relied on by Mr. Khetri, learned counsel for the appellant, is of no help to the appellant inasmuch as the said decision construes the expression “substantial error or defect in the procedure” used in Clause (c) of Section 100 of the Civil Procedure Code, as it stood prior to the Amendment Act, 1976, which was one of the grounds on which a second appeal could be entertained by the High Court but Section 100 of the Civil Procedure Code, has been substituted by the Amendment Act, 1976, and the substituted Section 100 of the Civil Procedure Code, limits the jurisdiction of the High Court against an appellate decree only to cases involving substantial question of law. Section 101 of the Civil Procedure Code, further states in categorical terms that no second appeal shall lie except on the grounds mentioned in Section 100. Thus the position of law is that the High Court can only entertain a second appeal on a substantial question of law and it has absolutely no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact however gross the error may seem to be. In fact, in the case of Diety Pattabhiramaswamy v. S. Hanymayya, AIR 1959 SC 57, referred to in the decision of the Orissa High Court (supra), K. Subarao, J. has relied on the decision of the Judicial Committee in Durga Choudhani v. Jaivahir Singh, 17 Ind App 122 (PC), on the aforesaid limited jurisdiction of the High Court in second appeals and has further observed that notwithstanding such clear and authoritative pronouncement on the scope of the jurisdiction under Section 100 of the Civil Procedure Code, some learned Judges of the High Court are disposing of second appeals as if they are first appeals.
8. Mr. Khetri’s argument that the statement of P.W. 2, Bhabani Sarma, the then Sub-Registrar, Nagaon, to the effect that though he undertook payment of balance consideration, the document was not executed, if taken into consideration would unsettle the findings of the first appellate Court in its entirety is one which relates to appreciation of evidence. It is not as if the first appellate Court has altogether ignored the evidence of PW 2, but has considered the same along with the evidence of the plaintiff and Exts. 2, 3, 4 and 6 and has finally come to the conclusion that while the plaintiff offered the balance consideration of Rs. 15,000/- the defendant did not accept the said balance amount and refused to execute the sale deed in favour of the plaintiff. With regard to such appreciation of evidence, the findings of the first appellate Court even if erroneous arc final and conclusive and cannot be disturbed by this Court under Section 100 of the Civil Procedure Code, as has been held by the Apex Court in the case of V. Ramachandra Ayyar v. Ramalingam Chettiar, AIR 1963 SC 302 : (1963 A11 LJ67), referred to in the decision of the Orisssa High Court (supra). Regarding Mr. Khetri’s submission that the evidence of PW 2, the then Sub-Registrar, Nagoan does not relate to his statutory duties under Section 32 of the Indian Registration Act, 1932, in the discharge of his functions as a public officer and should have been ignored by the trial and first appellate Courts, 1 am of the opinion that such evidence of PW 2 cannot be considered as inadmissible evidence under law and no fault can be found with the lower Courts if they have relied on the same along with other oral and documentary evidence to come to the conclusion that the plaintiff had offered the balance consideration of Rupees 15,000/-to the defendant for execution of sale deed.
9. In the result, therefore, the second appeal has no merit and is dismissed. No costs.