{"id":221517,"date":"2001-10-19T00:00:00","date_gmt":"2001-10-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/veerayee-ammal-vs-seeni-ammal-on-19-october-2001"},"modified":"2018-12-26T20:20:16","modified_gmt":"2018-12-26T14:50:16","slug":"veerayee-ammal-vs-seeni-ammal-on-19-october-2001","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/veerayee-ammal-vs-seeni-ammal-on-19-october-2001","title":{"rendered":"Veerayee Ammal vs Seeni Ammal on 19 October, 2001"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Veerayee Ammal vs Seeni Ammal on 19 October, 2001<\/div>\n
Author: Sethi<\/div>\n
Bench: R.P.Sethi, S.V.Patil<\/div>\n
           CASE NO.:\nAppeal (civil) 7185  of  1997\n\n\n\nPETITIONER:\nVEERAYEE AMMAL\n\n\tVs.\n\nRESPONDENT:\nSEENI AMMAL\n\nDATE OF JUDGMENT:\t19\/10\/2001\n\nBENCH:\nR.P.Sethi, S.V.Patil\n\n\n\n\nJUDGMENT:\n<\/pre>\n
SETHI,J.\n<\/p>\n
\tConcurrent findings of fact were set aside by the High Court vide
\nthe judgment impugned in this appeal by holding that the alleged
\nsubstantial question of law formulated by it stood proved in favour of
\nthe respondent-defendant as the appellant-plaintiff had not established
\nthat she had been ready and willing to perform her part of the
\ncontract.  It was further held that the relief of specific performance,
\nbeing an equitable relief, the same could not be enforced in favour of
\nthe appellant who was found to have failed to prove that she performed
\nor had always been ready and willing to perform the essential terms of
\nthe agreement executed between the parties.\n<\/p>\n
\tThe facts giving rise to the filing of the present appeal are
\nthat the appellant entered into an agreement to sell (Exhibit A-2) with
\nthe respondent-defendant initially on 5.1.1980 and subsequently on
\n16.3.1980 with respect to land measuring 27 cents for a price of
\nRs.24,300\/-.  A sum of Rs.8,000\/- is stated to have been paid to the
\nrespondent-defendant on the day of the execution of the agreement which
\nwas reduced to writing and signed by the parties.  As the respondent-
\ndefendant failed to execute the sale deed, the appellant-plaintiff
\nfiled a suit for specific performance of contract after notice to her.
\nIn her written statement respondent-defendant admitted the execution of
\nthe agreement and the receipt of Rs.8,000\/-.  It was, however,
\ncontended that as the appellant-plaintiff committed breach of the
\ncontract and failed to pay the balance amount of consideration, her
\nsuit for specific performance was not maintainable.  It was further
\ncontended that time was the essence of the contract between the parties
\nas was evident from the terms of the agreement.\n<\/p>\n
\tOn the pleadings of the parties, the Trial Court framed the
\nfollowing issues:\n<\/p>\n
“1.\tWhether the plaintiff was always ready and willing to
\nperform his part of contract?\n<\/p>\n
2.\tWhether time was of the essence of contract?\n<\/p>\n
3.\tWhether the plaintiff abandoned the contract
\nvoluntarily?\n<\/p>\n
4.\tTo what relief if any is the plaintiff entitled?”\n<\/p>\n
\tDeciding all the issues in favour of the appellant-plaintiff, the
\nTrial Court decreed the suit permitting the appellant-plaintiff to
\ndeposit the balance amount within two weeks.  The respondent-defendant
\nwas directed to execute the sale deed within two weeks from the date of
\ndeposit of the balance amount of consideration.\t The first appeal filed
\nby the respondent-defendant was dismissed by the Ist  Additional
\nDistrict Judge, Madurai vide his judgment dated 25th October, 1982.  In
\nsecond appeal, the High Court framed the following question of law
\nconsidering it as substantial question of law:\n<\/p>\n
“Whether in the circumstances of the case, the plaintiff
\nhas established that she has been ready and willing to
\nperform her part of the contract.”\n<\/p>\n
\tIt has been conceded before us that both the courts of fact had
\nconcluded that the time was not the essence of the contract and that
\nthe appellant-plaintiff did not abandon the contract voluntarily and
\nwas always ready and willing to perform her part of the contract.
\n\tWhereas the learned counsel appearing for the appellant-plaintiff
\nhas urged that the judgment of the High Court is contrary to the
\nmandate of Section 100 of the Code of Civil Procedure, the learned
\ncounsel for the respondent-defendant has tried to justify it on various
\ngrounds and persuaded us to hold that the appellant-plaintiff, on
\nfacts, had failed to establish that she had been ready and willing to
\nperform her part of the contract.  It is contended that even though
\ntime was not the essence of the contract, yet the appellant-plaintiff
\nwas under a legal and statutory obligation to seek enforcement of the
\nrights accruing to her on the basis of agreement within a reasonable
\ntime.\n<\/p>\n
\tSection 100 of the Code of Civil Procedure (hereinafter referred
\nto as “the Code”) was amended by the Amending Act No.104 of 1976 making
\nit obligatory upon the High Court to entertain the second appeal only
\nif it was satisfied that the case involved a substantial question of
\nlaw.  Such question of law has to be precisely stated in the Memorandum
\nof Appeal and formulated by the High Court in its judgment, for
\ndecision.  The appeal can be heard only on the question, so formulated,
\ngiving liberty to the respondent to argue that the case before the High
\nCourt did not involve any such question.  The Amending Act was
\nintroduced on the basis of various Law Commission Reports recommending
\nfor making appropriate provisions in the Code of Civil Procedure which
\nwere intended to minimise the litigation, to give the litigant fair
\ntrial in accordance with the accepted principles of natural justice, to
\nexpedite the disposal of civil suits and proceedings so that justice is
\nnot delayed, to avoid complicated procedure, to ensure fair deal to the
\npoor sections of the community and restrict the second appeals only on
\nsuch questions which are certified by the courts to be substantial
\nquestion of law.  We have noticed with distress that despite amendment,
\nthe provisions of Section 100 of the Code have been liberally construed
\nand generously applied by some judges of the High Courts with the
\nresult that objective intended to be achieved by the amendment of
\nSection 100 appears to have been frustrated.  Even before the amendment
\nof Section 100 of the Code, the concurrent finding of facts could not
\nbe disturbed in the second appeal.  This Court in Paras Nath Thakur  v.
\nSmt.Mohani Dasi (Deceased) & Ors.<\/a> [AIR 1959 SC 1204] held:
\n“It is a well settled by a long series of decisions of the
\nJudicial Committee of the Privy Council and of this Court,
\nthat a High Cour,t on second appeal, cannot go into
\nquestions of fact, however, erroneous the findings of fact
\nrecorded by the courts of fact may be.\tIt is not necessary
\nto cite those decisions.  Indeed, the learned counsel for
\nthe plaintiff-respondents did not and could not contend
\nthat the High Court was competent to go behind the findings
\nof fact concurrently recorded by the two courts of fact.”\n<\/p>\n
\tTo the same effect are the judgments reported in Sri Sinha
\nRamanuja Jeer Swamigal v. Sri Ranga Ramanuja Jeer<\/a> alias Emberumanar
\nJeer & Ors. [AIR 1961 SC 1720], V.Ramachandra Ayyar & Anr. v.
\nRamalingam Chettiar & Anr.<\/a>[AIR 1963 SC 302] and Madamanchi Ramappa &
\nAnr. v. Muthaluru Bojjappa<\/a> [AIR 1963 SC 1633].\tAfter its amendment,
\nthis Court in various judgments held that the existence of the
\nsubstantial question of law is a condition precedent for the High Court
\nto assume jurisdiction of entertaining the second appeal.  The
\nconditions specified in Section 100 of the Code are required to be
\nstrictly fulfilled and that the second appeal cannot be decided on
\nmerely equitable grounds.  As to what is the substantial question of
\nlaw, this Court in Sir Chunilal v. Mehta & Sons Ltd. v. Century
\nSpinning & Manufacturing Co.Ltd. [AIR 1962 SC 1314] held that:
\n“The proper test for determining whether a question of law
\nraised in the case is substantial would, in our opinion, be
\nwhether it is of general public importance or whether it
\ndirectly and substantially affects the rights of the
\nparties and if so whether it is either an open question in
\nthe sense that it is not finally settled by this Court or
\nby the Privy Council or by the Federal Court or is not free
\nfrom difficulty or calls for discussion or alternative
\nviews.\tIf the question is settled by the highest court or
\nthe general principles to be applied in determining the
\nquestion are well settled and there is a mere question of
\napplying those principles or that the plea raised is
\npalpably absurd the question would not be a substantial
\nquestion of law.”\n<\/p>\n
\tIn Kondiba Dagadu Kadam v. Savitribai Sopan Gujar & Ors.<\/a> [JT 1999
\n(3) SC 163] this Court again considered this aspect of the matter and
\nheld:\n<\/p>\n
“If the question of law termed as substantial question
\nstands already decided by a large bench of the High Court
\nconcerned or by the Privy Council or by the Federal Court
\nor by the Supreme Court, its merely wrong application on
\nfacts of the case would not be termed to be a substantial
\nquestion of law.  Where a point of law has not been pleaded
\nor is found to be arising between the parties in the
\nabsence of any factual format, a litigant should not be
\nallowed to raise that question as substantial question of
\nlaw in second appeal.  The mere appreciation of the facts,
\nthe documentary evidence or the meaning of entries and the
\ncontents of the document cannot be held to be raising a
\nsubstantial question of law.  But where it is found that
\nthe appellate court has assumed jurisdiction which did not
\nvest in it, the same can be adjudicated in the second
\nappeal, treating it as substantial question of law.  Where
\nthe first appellate court is shown to have exercised its
\ndiscretion in a judicial manner, it cannot be termed to be
\nan error either of law or of procedure requiring
\ninterference in second appeal.\tThis Court in Reserve Bank
\nof India & Anr. v. Ramakrishna Govind Morey (AIR<\/a> 1976 SC\n<\/p>\n
830) held that whether trial court should not have
\nexercised its jurisdiction differently is not a question of
\nlaw justifying interference.”\n<\/p>\n
\tThe question of law formulated as substantial question of law in
\nthe instant case cannot, in any way, be termed to be a question of law
\nmuch less as substantial question of law.  The question formulated in
\nfact is a question of fact.  Merely because of appreciation of evidence
\nanother view is also possible would not clothe the High Court to assume
\nthe jurisdiction by terming the question as substantial question of
\nlaw.  In this case Issue NO.1, as framed by the Trial Court, was,
\nadmittedly, an issue of fact which was concurrently held in favour of
\nthe appellant-plaintiff and did not justify the High Court to disturb
\nthe same by substituting its own finding for the findings of the courts
\nbelow, arrived at on appreciation of evidence.\n<\/p>\n
\tWhen, concededly, the time was not the essence of the contract,
\nthe appellant-plaintiff was required to approach the court of law
\nwithin a reasonable time. A Constitution Bench of this Hon’ble Court in
\nChand Rani (Smt.) (Dead) By Lrs. v. Kamal Rani (Smt.)<\/a>(Dead) By Lrs.
\n[1993 (1) SCC 519 held that in case of sale of immovable property there
\nis no presumption as to time being the essence of the contract.\t Even
\nif it is not of the essence of contract, the court may infer that it is
\nto be performed in a reasonable time if the conditions are (i) from the
\nexpress terms of the contract; (ii) from the nature of the property;
\nand (iii) from the surrounding circumstances, for example, the object
\nof making the contract.\t For the purposes of granting relief, the
\nreasonable time has to be ascertained from all the facts and
\ncircumstances of the case.\n<\/p>\n
\tIn K.S. Vidyanadam & Ors. v. Vairavan<\/a> [1997 (3) SCC 1] this Court
\nheld:\n<\/p>\n
“Even where time is not of the essence of the contract, the
\nplaintiffs must perform his part of the contract within a
\nreasonable time and reasonable time should be determined by
\nlooking at all the surrounding circumstances including the
\nexpress terms of the contract and the nature of the
\nproperty.”\n<\/p>\n
\tThe word “reasonable” has in law prima facie meaning of
\nreasonable in regard to those circumstances of which the person
\nconcerned is called upon to act reasonably knows or ought to know as to
\nwhat was reasonable.  It may be unreasonable to give an exact
\ndefinition of the word “reasonable”.  The reason varies in its
\nconclusion according to ideosyncrasy of the individual and the time and
\ncircumstances in which he thinks.  The dictionary meaning of the
\n“reasonable time” is to be so much time as is necessary, under the
\ncircumstances, to do conveniently what the contract or duty requires
\nshould be done in a particular case.  In other words it means as soon
\nas circumstances permit.  In Law Lexicon it is defined to mean “A
\nreasonable time, looking at all the circumstances of the case; a
\nreasonable time under ordinary circumstances; as soon as circumstance
\nwill permit; so much time as is necessary under the circumstances,
\nconveniently to do what the contract requires should be done; some more
\nprotracted space thant ‘directly’; such length of time as may fairly,
\nand properly, and reasonably be allowed or required, having regard to
\nthe nature of the act or duty and to the attending circumstances; all
\nthese convey more or less the same idea.”\n<\/p>\n
\tIn the instant case the parties had agreed to complete the sale
\nby 15.6.1980 despite the fact that the time was not the essence of the
\ncontract.  The appellant-plaintiff is stated to have issued letters to
\nthe respondent-defendant calling upon to execute the sale deed and
\nthereafter also issued notice.\tIt was further alleged and held proved
\nby the courts of fact that the nature of the property was wet land
\nwhich continued to be such during the trial.  As the appellant-
\nplaintiff had contracted to purchase the land with a view to construct
\na residential house, the respondent-defendant had undertaken to remove
\nthe telegraph pole in one part of the property.\t The Trial as well as
\nthe First Appellate Court found that in pursuance of the agreement the
\nsaid pole was got removed in the first week of November, 1980 and the
\nappellant-plaintiff issued a notice (Exhibit A-4) on 11.11.1980 calling
\nupon the respondent-defendant to execute the sale deed.\t The appellant-
\nplaintiff also made a publication on 13.11.1980 in a daily newspaper
\nintimating the people at large not to purchase the property of the
\nrespondent-defendant as the same was the subject matter of agreement to
\nsell executed in favour of the appellant-plaintiff.  On the failure of
\nthe respondent-defendant to comply with the conditions of the
\nAgreement, the demands made in the letters and the notice, the
\nappellant-plaintiff filed OS No.1249 of 1980 in the month of November,
\n1980 itself.  The legal action initiated by the appellant-plaintiff was
\nrightly held by the Trial Court and the First Appellate Court to have
\nbeen commenced without delay and definitely within a reasonable time.
\nThe High Court was not justified in disturbing the finding of fact
\narrived at on appreciation of the evidence, while disposing of the
\nsecond appeal.\n<\/p>\n
\tThe impugned judgment being against the settled provisions of law
\nis not sustainable.  The appeal is accordingly allowed by setting aside
\nthe impugned judgment and restoring the judgments of the Trial Court
\nand the First Appellate Court decreeing the suit of the appellant-
\nplaintiff against the respondent-defendant.  No costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Veerayee Ammal vs Seeni Ammal on 19 October, 2001 Author: Sethi Bench: R.P.Sethi, S.V.Patil CASE NO.: Appeal (civil) 7185 of 1997 PETITIONER: VEERAYEE AMMAL Vs. RESPONDENT: SEENI AMMAL DATE OF JUDGMENT: 19\/10\/2001 BENCH: R.P.Sethi, S.V.Patil JUDGMENT: SETHI,J. Concurrent findings of fact were set aside by the High Court vide the judgment […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-221517","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nVeerayee Ammal vs Seeni Ammal on 19 October, 2001 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/veerayee-ammal-vs-seeni-ammal-on-19-october-2001\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Veerayee Ammal vs Seeni Ammal on 19 October, 2001 - 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