ADVOCATEMMMOHAN: Landlord and tenant – Eviction and specific perfor...

ADVOCATEMMMOHAN: Landlord and tenant – Eviction and specific perfor...: advocatemmmohan Code of Civil Procedure, 1908 – Section 100 Second Appeal – Scope – Substantial question of law Jurisdiction of the High C...

Code of Civil Procedure, 1908 – Section 100

Second Appeal – Scope – Substantial question of law

Jurisdiction of the High Court under Section 100 CPC can be exercised only when a substantial question of law arises. Concurrent findings of fact recorded by the Trial Court and the First Appellate Court, based on appreciation of oral and documentary evidence, are not liable to interference unless shown to be perverse, based on inadmissible evidence, or rendered by ignoring material evidence.
(Paras 17–21, 28–32)

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Specific Relief Act, 1963 – Section 16(c)

Specific performance – Readiness and willingness

Specific performance cannot be granted unless the plaintiff not only pleads but also proves continuous readiness and willingness to perform essential terms of the contract. Mere assertion without supporting conduct and evidence is insufficient.
(Paras 10–11, 22–26, 27–29)

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Specific performance – Equitable relief – Clean hands

Relief of specific performance being discretionary and equitable, a party approaching the Court with unclean hands, false pleas, or forged documents is not entitled to such relief.
(Paras 10–11, 24, 31)

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Burden of proof – Agreement of sale denied

Where execution of an unregistered agreement of sale is specifically denied, the burden lies on the plaintiff to prove execution and payment of consideration. The defendant is not required to prove the negative.
(Paras 27–29)

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Order XLI Rule 31 CPC – First appellate judgment

Non-repetition of trial court reasoning does not vitiate the appellate judgment if there is substantial compliance with Order XLI Rule 31 CPC and the appellate court records points for consideration, concurs with findings, and assigns its own reasons.
(Paras 14–16, 19–21)

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Andhra Pradesh Buildings (Lease, Rent & Eviction) Control Act, 1960 – Section 32(c)

Jurisdiction – Civil Court

Jurisdiction of the Civil Court is to be determined on the basis of plaint averments. Where the rent pleaded is below the statutory threshold, the bar under Section 32(c) of the Act is not attracted.
(Paras 17–18)

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Landlord and tenant – Eviction and specific performance – Parallel proceedings

Where suit for specific performance filed by tenant is found to be an afterthought following eviction proceedings and is based on a forged agreement, dismissal of the specific performance suit and decree of eviction are justified.
(Paras 3, 10–11, 31–32)

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Equitable relief – Grant of time to vacate

Even while dismissing second appeals, the High Court may grant reasonable time to the tenant to vacate the premises on equitable considerations.
(Paras 33–35)

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ANALYSIS (ISSUE-WISE)

1. Background and nature of litigation

Two suits were tried together:
• an eviction suit filed by the owner, and
• a suit for specific performance filed by the tenant.
The Trial Court dismissed the suit for specific performance and decreed eviction. Both first appeals were dismissed, leading to the present second appeals.
(Paras 1–5)

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2. Findings of the Trial Court and First Appellate Court

The Trial Court held that:

• the tenant failed to prove execution of the agreement of sale,

• readiness and willingness were not established,

• the alleged agreement was forged and an afterthought, and

• the tenant approached the Court with unclean hands.
  These findings were affirmed by the First Appellate Court.
  (Paras 10–11)

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3. Substantial questions raised in second appeal

The principal grounds urged were:

• alleged non-compliance with Order XLI Rule 31 CPC, and

• alleged bar of civil court jurisdiction under Section 32(c) of the AP Rent Control Act.
  (Para 12)

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4. Order XLI Rule 31 CPC

The High Court held that the First Appellate Court framed points for consideration, concurred with the Trial Court, and assigned reasons. Substantial compliance was found, and no infirmity was made out.
(Paras 14–16, 19–21)

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5. Jurisdiction under Rent Control Act

The Court held that jurisdiction depends on plaint averments. Since rent pleaded was Rs.1,100/- per month, the statutory bar under Section 32(c) was not attracted.
(Paras 17–18)

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6. Readiness and willingness & burden of proof

Applying Section 16(c) of the Specific Relief Act and binding precedents, the Court held that:

• mere pleading of readiness and willingness is insufficient,

• conduct of the plaintiff is decisive, and

• failure to issue notice or tender balance consideration is fatal.
  The plaintiff failed to discharge the burden of proving execution and consideration.
  (Paras 22–29)

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7. Scope of Section 100 CPC

The Court reiterated that it cannot re-appreciate evidence or disturb concurrent findings of fact in the absence of perversity or a substantial question of law. None was found.
(Paras 17–21, 28–32)

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8. Final relief

Both second appeals were dismissed. However, considering equities, the appellant was granted six months’ time to vacate the shop.
(Paras 32–35)

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RATIO DECIDENDI

1. Specific performance cannot be granted unless the plaintiff proves continuous readiness and willingness under Section 16(c) of the Specific Relief Act; mere assertion without supporting conduct is insufficient.

2. Where execution of an agreement of sale is denied, the burden lies entirely on the plaintiff to prove execution and payment of consideration; the defendant is not required to prove the negative.

3. Concurrent findings of fact dismissing a suit for specific performance and decreeing eviction, based on appreciation of evidence, are not open to interference in second appeal in the absence of a substantial question of law.

4. Substantial compliance with Order XLI Rule 31 CPC is sufficient; non-elaborate repetition of trial court reasoning does not vitiate an appellate judgment.

5. Civil court jurisdiction under the AP Rent Control Act is determined on plaint averments; where rent pleaded is below the statutory threshold, the bar under Section 32(c) does not apply.

6. Even while dismissing second appeals, the High Court may grant reasonable time to vacate on equitable considerations.

Specific Relief – Suit for specific performance – Burden of proof Where execution of agreement of sale and passing of advance consideration are specifically denied, the burden lies on the plaintiff to prove the genuineness of the agreement and payment of consideration. (Paras 12–13) Agreement of sale – Suspicious circumstances – Discrepant signatures Material discrepancies in signatures and execution of an agreement of sale, coupled with inconsistent evidence of attestors and scribe, constitute valid grounds for courts to disbelieve the document. (Paras 13–16) Evidence – Attestors and scribe – Credibility Where attestor and scribe depose that they signed on a particular page of the document but their signatures appear on a different page, such inconsistency affects the credibility of execution of the document. (Paras 14–15)

Code of Civil Procedure, 1908 – Section 100

Second Appeal – Scope – Substantial question of law

Existence of a substantial question of law is a sine qua non for exercise of jurisdiction under Section 100 CPC. High Court cannot re-appreciate evidence or interfere with concurrent findings of fact unless such findings are perverse, based on inadmissible evidence, or recorded by ignoring material evidence.
(Paras 17–20)

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Specific Relief – Suit for specific performance – Burden of proof

Where execution of agreement of sale and passing of advance consideration are specifically denied, the burden lies on the plaintiff to prove the genuineness of the agreement and payment of consideration.
(Paras 12–13)

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Agreement of sale – Suspicious circumstances – Discrepant signatures

Material discrepancies in signatures and execution of an agreement of sale, coupled with inconsistent evidence of attestors and scribe, constitute valid grounds for courts to disbelieve the document.
(Paras 13–16)

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Evidence – Attestors and scribe – Credibility

Where attestor and scribe depose that they signed on a particular page of the document but their signatures appear on a different page, such inconsistency affects the credibility of execution of the document.
(Paras 14–15)

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Concurrent findings of fact – Finality

Concurrent findings of fact recorded by the Trial Court and confirmed by the First Appellate Court, based on appreciation of oral and documentary evidence, are binding and not open to interference in second appeal.
(Paras 16–20)

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Second Appeal – Dismissal at admission stage

When no substantial question of law arises for consideration, second appeal is liable to be dismissed at the admission stage itself.
(Paras 20–21)

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ANALYSIS (ISSUE-WISE)

1. Nature of the litigation

The plaintiff filed O.S. No.97 of 2017 seeking specific performance of an agreement of sale dated 21.04.2013 or, in the alternative, refund of advance amount with interest. The Trial Court dismissed the suit, and the dismissal was confirmed in first appeal. The plaintiff approached the High Court under Section 100 CPC.
(Paras 1–7)

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2. Core defence and burden of proof

The defendant categorically denied execution of the agreement of sale and receipt of advance consideration, asserting that signed blank papers obtained in a prior loan transaction were misused. In such circumstances, the High Court held that the burden squarely lay on the plaintiff to prove execution and payment.
(Paras 5, 12)

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3. Appreciation of Ex.A1 agreement of sale

Both courts below found serious discrepancies in Ex.A1:

• Different forms of the defendant’s signature on two pages;

• Thumb impression appearing only on one page;

• Attestor and scribe claiming to have signed on the stamp paper, though their signatures appeared on the green paper.
  These inconsistencies were held to be unexplained and fatal to the plaintiff’s case.
  (Paras 13–16)

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4. Concurrent findings and Section 100 CPC

The High Court reiterated settled principles governing Section 100 CPC, relying on Supreme Court precedents, holding that:

• Findings of fact cannot be reopened;

• Re-appreciation of evidence is impermissible;

• Interference is justified only if findings are perverse or contrary to settled law.
  No such infirmity was found.
  (Paras 17–20)

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5. Conclusion

Since the findings of the courts below were based on proper appreciation of evidence and no substantial question of law arose, the second appeal was dismissed at the admission stage without costs.
(Paras 20–21)

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RATIO DECIDENDI

1. In a suit for specific performance, when execution of the agreement of sale and payment of advance consideration are denied, the burden of proof lies entirely on the plaintiff to establish the genuineness of the agreement and the transaction.

2. Material discrepancies in execution, signatures, and supporting testimony of attestors and scribe justify rejection of an agreement of sale as not proved.

3. Concurrent findings of fact recorded by the Trial Court and First Appellate Court, based on appreciation of oral and documentary evidence, cannot be interfered with in second appeal unless shown to be perverse or contrary to law.

4. In the absence of a substantial question of law, a second appeal under Section 100 CPC is liable to be dismissed at the admission stage.

Permanent Injunction – Proof of possession In a suit for perpetual injunction, plaintiff must establish possession over the suit schedule property as on the date of filing of the suit. Plaintiff cannot succeed by pointing out weaknesses or lapses in the defendant’s case. (Para 8) Extent of property – Failure of proof Where plaintiff claims injunction in respect of a larger extent but documentary evidence establishes possession only over a lesser extent, courts are justified in holding that possession over the entire claimed extent is not proved. (Paras 8–9)

Code of Civil Procedure, 1908 – Section 100

Second Appeal – Scope – Interference with concurrent findings

High Court, while exercising jurisdiction under Section 100 CPC, cannot re-appreciate evidence or interfere with concurrent findings of fact unless such findings are shown to be perverse, based on inadmissible evidence, or recorded by ignoring material evidence. Existence of a substantial question of law is a sine qua non for exercise of jurisdiction.
(Paras 11–12)

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Permanent Injunction – Proof of possession

In a suit for perpetual injunction, plaintiff must establish possession over the suit schedule property as on the date of filing of the suit. Plaintiff cannot succeed by pointing out weaknesses or lapses in the defendant’s case.
(Para 8)

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Extent of property – Failure of proof

Where plaintiff claims injunction in respect of a larger extent but documentary evidence establishes possession only over a lesser extent, courts are justified in holding that possession over the entire claimed extent is not proved.
(Paras 8–9)

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Concurrent findings of fact – Finality

Findings recorded by the Trial Court and affirmed by the First Appellate Court on appreciation of oral and documentary evidence are binding and cannot be reopened in second appeal in the absence of a substantial question of law.
(Paras 9–11)

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Unregistered document – Stamp Act proceedings

Where an unregistered document is impounded and deficit stamp duty is collected under the Indian Stamp Act, and no objection is raised under Section 22-A of the Registration Act, the courts below are entitled to consider surrounding circumstances while appreciating evidence.
(Para 9)

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Assigned land – Burden of proof

Mere assertion that land is assigned or D-Patta land is insufficient. Plaintiff must establish possession and entitlement through acceptable evidence.
(Paras 8–9)

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Second Appeal – Dismissal at threshold

When no substantial question of law arises from concurrent findings based on evidence, second appeal is liable to be dismissed without costs.
(Paras 11–13)

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ANALYSIS (ISSUE-WISE)

1. Nature of the case

The plaintiff filed a suit for perpetual injunction claiming possession over Ac.0.10 cents of land, alleging ancestral title over Ac.0.06 cents and D-Patta over Ac.0.04 cents. The suit was dismissed by the Trial Court and the dismissal was confirmed in first appeal. The plaintiff invoked Section 100 CPC by filing the present second appeal.
(Paras 1–5)

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2. Core issue before the High Court

Whether the concurrent findings of the courts below, holding that the plaintiff failed to prove possession over the entire suit schedule extent, warranted interference under Section 100 CPC.
(Paras 8–11)

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3. Findings on possession

The High Court noted that:

• Plaintiff sought injunction over Ac.0.10 cents;

• Documentary evidence (Ex.A-1 adangal) reflected possession only over Ac.0.04 cents;

• Both courts below recorded findings that possession over the entire extent was not proved.
  The settled principle that possession as on the date of suit must be proved by the plaintiff was reiterated.
  (Para 8)

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4. Appreciation of defence evidence

The appellate court considered the unregistered Grama Krayachiti relied upon by the defendants, noting that deficit stamp duty was collected and no objection was raised under Section 22-A of the Registration Act. These aspects were treated as part of factual appreciation.
(Para 9)

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5. Limits of Section 100 CPC

The High Court emphasized that:

• It cannot substitute its own opinion for that of the fact-finding courts;

• Re-appreciation of evidence is impermissible;

• Interference is justified only if findings are perverse or based on inadmissible or ignored material evidence.
  No such infirmity was found.
  (Paras 11–12)

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6. Conclusion

As no substantial question of law arose, the second appeal was dismissed without costs, and all pending miscellaneous petitions were closed.
(Paras 12–13)

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RATIO DECIDENDI

1. In a suit for perpetual injunction, the plaintiff must independently establish possession over the suit schedule property as on the date of suit; failure to do so is fatal to the claim, irrespective of defects in the defendant’s case.

2. Concurrent findings of fact recorded by the Trial Court and the First Appellate Court on appreciation of oral and documentary evidence cannot be interfered with in second appeal unless they are shown to be perverse or contrary to law.

3. The jurisdiction of the High Court under Section 100 CPC can be exercised only when a substantial question of law arises; absence of such question mandates dismissal of the second appeal.

Condonation of delay under Section 5 of the Limitation Act requires a bona fide, reasonable and satisfactory explanation; vague or casual explanations reflecting negligence or lack of diligence do not constitute “sufficient cause”. Judicial discretion to condone delay, though liberal in approach, is not unfettered and cannot be exercised where the conduct of the litigant or counsel discloses a cavalier attitude towards the Court. Dismissal of a delay-condonation application necessarily entails dismissal of the appeal itself as time-barred. Imposition of costs, including enforceable directions, is justified where frivolous or irresponsible delay petitions are filed.

Limitation Act, 1963 – Section 5

Condonation of delay – “Sufficient cause” – Scope

Condonation of delay is a matter of judicial discretion. Delay cannot be condoned in the absence of reasonable, satisfactory and bona fide explanation. A casual, vague or cavalier explanation reflects lack of due diligence and disentitles the applicant to discretionary relief.
(Paras 3–5)

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Second Appeal – Limitation – Delay in filing

Where the affidavit seeking condonation discloses no valid cause and reflects negligence on the part of the litigant and counsel, delay of even short duration is not liable to be condoned.
(Paras 3–5)

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Judicial discretion – Exercise

Discretion to condone delay must be exercised judiciously and not mechanically. Liberal approach does not mean unfettered or arbitrary exercise of discretion, particularly where lack of bona fides is evident.
(Paras 3–5)

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Advocate and litigant – Duty to Court

Cavalier attitude of the litigant and advocate towards judicial proceedings constitutes a relevant factor while considering an application for condonation of delay.
(Para 4)

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Costs – Imposition – Deterrent measure

Where an application for condonation of delay is found to be frivolous and lacking bona fides, imposition of costs payable to the District Legal Services Authority is justified.
(Para 5)

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Civil prison – Default in payment of costs

Direction for civil imprisonment on failure to comply with payment of costs imposed by the Court is permissible to enforce judicial orders.
(Para 5)

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Second Appeal – Consequence of dismissal of delay petition

Dismissal of the application for condonation of delay necessarily results in dismissal of the second appeal itself.
(Para 6)

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ANALYSIS (ISSUE-WISE)

1. Nature of Proceedings

The appellant sought condonation of delay of 77 days in filing the second appeal against concurrent judgments of the Trial Court and the First Appellate Court. The delay petition was supported by an affidavit assigning reasons relating to alleged lack of knowledge and opinion of counsel.
(Paras 1–2)

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2. Governing Principles on Condonation of Delay

The Court undertook an examination of settled principles governing Section 5 of the Limitation Act, reiterating that:

• discretion must be exercised judiciously,

• delay cannot be condoned where there is negligence, inaction or lack of bona fides,

• “sufficient cause” must be real, reasonable and convincing.
  The Court relied on authoritative Supreme Court precedents summarising these principles.
  (Para 3)

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3. Evaluation of Explanation Offered

On scrutiny of the affidavit, the Court found that:

• no cogent or acceptable reason was assigned for the delay,

• the explanation was vague and self-contradictory,

• the affidavit reflected a casual and irresponsible approach of both litigant and counsel.
  (Paras 4–5)

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4. Refusal to Condone Delay

The Court held that the explanation failed to satisfy the test of “sufficient cause” and declined to exercise discretion in favour of the appellant.
(Para 5)

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5. Imposition of Costs and Enforcement

Considering the cavalier attitude, the Court imposed costs of ₹3,000/- payable to the District Legal Services Authority and issued consequential directions for recovery, including civil imprisonment in case of default.
(Para 5)

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6. Effect on Second Appeal

Since the application for condonation of delay was dismissed, the second appeal itself was dismissed as barred by limitation.
(Para 6)

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RATIO DECIDENDI

1. Condonation of delay under Section 5 of the Limitation Act requires a bona fide, reasonable and satisfactory explanation; vague or casual explanations reflecting negligence or lack of diligence do not constitute “sufficient cause”.

2. Judicial discretion to condone delay, though liberal in approach, is not unfettered and cannot be exercised where the conduct of the litigant or counsel discloses a cavalier attitude towards the Court.

3. Dismissal of a delay-condonation application necessarily entails dismissal of the appeal itself as time-barred.

4. Imposition of costs, including enforceable directions, is justified where frivolous or irresponsible delay petitions are filed.

Landlord and Tenant – Eviction suit – Concurrent findings Where ownership of the plaintiffs and tenancy of the defendants are admitted and both the courts below have, on appreciation of evidence, decreed eviction and arrears of rent, such concurrent findings cannot be re-appreciated in second appeal. (Paras 2–4)

Code of Civil Procedure, 1908 – Section 100

Second Appeal – Scope – Substantial question of law

Second appeal is not maintainable where the Trial Court and the First Appellate Court have recorded concurrent findings of fact and the appellant fails to demonstrate the existence of any substantial question of law warranting interference.
(Paras 4–5)

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Landlord and Tenant – Eviction suit – Concurrent findings

Where ownership of the plaintiffs and tenancy of the defendants are admitted and both the courts below have, on appreciation of evidence, decreed eviction and arrears of rent, such concurrent findings cannot be re-appreciated in second appeal.
(Paras 2–4)

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Second Appeal – Admission stage – Dismissal

In the absence of any substantial question of law, the High Court is justified in dismissing the second appeal at the stage of admission itself without issuing notice for final hearing.
(Para 5)

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Equitable relief – Time to vacate premises

Even while dismissing the second appeal, the High Court may, in exercise of equitable discretion, grant reasonable time to the tenant to vacate the premises, particularly when the tenant is carrying on business in the suit property.
(Para 6)

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Execution of decree – Liberty to decree-holders

On failure of the tenant to vacate within the time granted by the High Court, decree-holders are at liberty to initiate execution proceedings for eviction and recovery of possession.
(Para 6)

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ANALYSIS (ISSUE-WISE)

1. Nature of the Litigation

The suit was filed by the plaintiffs seeking eviction of the defendants from the plaint schedule property, delivery of vacant possession, and recovery of arrears of rent with interest. The Trial Court decreed the suit, and the First Appellate Court confirmed the decree.
(Paras 2–3)

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2. Findings of the Courts Below

The High Court noted that:

• Ownership of the plaintiffs was not disputed.

• Existence of landlord-tenant relationship was also not denied.

• Both courts below, on appreciation of evidence, recorded concurrent findings that the defendants were tenants liable for eviction and payment of arrears.
  (Paras 3–4)

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3. Scope of Interference in Second Appeal

The Court reiterated the settled principle that a second appeal under Section 100 CPC lies only on a substantial question of law. The appellant failed to demonstrate any such question. The appeal merely sought re-appreciation of facts, which is impermissible.
(Paras 4–5)

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4. Dismissal at Admission Stage

Since no substantial question of law arose for consideration, the High Court declined to admit the second appeal and dismissed it at the admission stage itself.
(Para 5)

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5. Grant of Time on Equitable Considerations

Notwithstanding dismissal of the appeal, the Court considered the fact that the appellant was running a supermarket in the suit premises and granted four months’ time to vacate, balancing equities between the parties.
(Para 6)

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6. Consequence of Non-Compliance

The Court clarified that if the appellant fails to vacate within the granted time, the plaintiffs are entitled to initiate execution proceedings for eviction and recovery of possession.
(Para 6)

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RATIO DECIDENDI

1. A second appeal under Section 100 CPC is not maintainable against concurrent findings of fact recorded by the Trial Court and the First Appellate Court, unless a substantial question of law is made out.

2. Re-appreciation of evidence or challenge to factual conclusions is impermissible in second appeal.

3. In the absence of a substantial question of law, the High Court can dismiss the second appeal at the admission stage.

4. Even while dismissing a second appeal, the High Court may grant reasonable time to the tenant to vacate the premises on equitable considerations, without affecting the decree-holders’ right to execute the decree on default.