Holding

The question of the plaintiff's readiness to perform was a factual issue, not a substantial question of law, and therefore the High Court could not disturb the concurrent findings of fact.

Summary

The appellant entered into a sale agreement for land where time was not stipulated as the essence. When the respondent failed to execute the sale deed, the appellant sued for specific performance. The trial court and the first appellate court both held that time was not essential, the appellant was ready to perform, and the suit was filed within a reasonable time. The High Court, however, set aside these findings, treating the issue of the appellant's readiness to perform as a substantial question of law on second appeal. The Supreme Court held that the question was factual, not a substantial question of law, and that Section 100 of the CPC precludes disturbing concurrent findings of fact on a second appeal. Consequently, the appeal was allowed, restoring the lower courts' judgments.

Issues considered

Whether the High Court can entertain a second appeal on a question of fact disguised as a substantial question of law under Section 100 CPC.
Whether time was the essence of the contract and whether the plaintiff acted within a reasonable time.
Whether the plaintiff was ready and willing to perform her part of the contract.

Legislation cited

Code of Civil Procedure, 1908s. 100

Subjects

specific performancecontracttime not essencereasonable timesecond appealSection 100 CPCsubstantial question of lawconcurrent findings of factcivil procedure

Judgment

VEERAYEE AMMAL A
v.
SEENIAMMAL

OCTOBER 19, 2001

[R.P. SETHI AND SHIVARAJ V. PATIL, JJ.] B

Code of Civil Procedure, 1908 : Section JOO.

Second Appeal-Power ofHigh Court-Condition precedent to entertain
second appeal-Substantial question of law-What is.
c
Suit for specific performance-_Decree by trial court-Affirmed by Ap-
pellate Court-Both Courts holding that time is not the essence of contract-
Finding that plaintiff was always ready and willing to pe1fom1 her part ofact-
Finding by both courts that action was initiated by plaintiff within reasonable
time-Second appeal-Question framed by High Court-Whether plaintiffwill-· D
ing to perform her part of contract-Held, not a substantial question of law-
Finding of.fact disturbed by High Court in second appeal held not justified.

Contract-Time not essence of contract-Plaintiff should approach the
court within reasonable time.
E
Words and Phrases:

'Reasonable'-Meaning o.f.

The appellant-plaintiff entered into an agreement to sell, on 16.3.1980
with respondent-defendant. The parties had agreed to complete the sale by F
15.6.1980 despite the fact that time was not the essence of contract. On
failure of respondent-defendant to comply with conditions of agreement
and to execute the sale deed the appellant-plaintiff filed a suit for specific
performance. The trial court decreed the suit and the first appeal filed by
respondent-defendant was dismissed. The trial court as well as the First
Appellate Court held that time was not the essence of contract and that the G
appellant-plaintiff did not abandon the contrac~ voluntarily and was
always ready and willing to perform her part of the contract. On the basis
of the evidence on record both these courts also found that legal action was
initiated by the appellant-plaintiff within a reasonable time. In second
appeal the High Court set aside the concurrent findings of facts of courts H
467
468 SUPREME COURT REPORTS [2001) SUPP. 4 S.C.R.
A below. The substantial question of law framed by it viz. whether in the
circumstances of the case the plaintiff had established that she has been
ready and willing to perform her part of the contract was answered in the
negative. Hence this appeal.

Allowing the appeal and setting aside the impugned judgment of the
B High Court, the Court

HELD : 1. The impugned judgment being against the settled provi·
sions of law is not sustainable. Section 100 of the Code of Civil Procedure,
1908 was amended in 1976 making it obligatory upon the High Court to
c entertain the second appeal only if it was satisfied that the case involved a
substantial question of law. The object of amendment was to minimise the
litigation, to give the litigant fair trial in accordance with the accepted
principles of c:!tural justice, to expedite the. disposal of civil suits and
proceedings so that justice is not delayed, to avoid complicated procedure,
to ensure fair deal to the poor sections of the community and restrict the
D
second appeals only on such questions which are certified by the courts to
be substantial question of.. law. Despite amendment, the provisions of
Section 100 of the Code have been liberally construed and generously
applied by some judges of the High Courts with the result that objective
intended to be achieved by the amendment of Section 100 appears to
E have been frustrated. Even before the amendment of Section 100 of the
Code, the concurrent finding of fact could not be disturbed in the second
appeal. [471-D·G]

Paras Nath Thakurv. Smt. Mohani Dasi (Deceased) & Ors., AIR (1959)
p SC 1204; Sri Sinha Ramanuja Jeer Swamigal v. Sri Ranga Ramanuja Jeer
alias Emberumimer Jeer & Ors., Am (1961) SC 1720; V. RamachandraAyyer
& Am: v. Ramalingani Chettiar & Am:, AIR (1963) SC 302 and Madamanchi
Ramappa '& Anr. v. Muthaluru Bojjappa, AiR (1963) SC 1633, referred to.

2. The question of law formulated as substantial question of law in
G the instant case cannot, in any way, be termed to be a question oflaw much
less as substantial question of law. The question formulated in fact was a
question of fact. It .was concurrently held in favour of the appellant.
plaintiff. Therefore, the High Court was not justified to disturb the same
by subst~tuting its own finding for the findings of the courts below, arrived r
I
H at on appreciation of evidence. [473-E] '

\
VEERAYEE AMMAL v. SEENI AMMAL [SETHI; J.] 469
Sir Chunilal v. Mehta & Sons Ltd. v. Century Spinning & Mamifcl"turing A
Co. Ltd., AIR (1962) SC 1314 and Kondiba Dagadu Kadam v. Savitribai
Sopan Gt{jar & Ors., JT (1999) 3 SC 163, referred to.

Reserve Bank of India & Am: v. Ramakrishna Govind Morey, AIR
(1976) SC 830, cited.
B
3. In the instant case as the time was not the essence of the contract,
the appellant-plaintiff was required to approach the court of law within a
reasonable time. The word 'reasonable' has in law primafacie meaning of
reasonable in regard to those circumstances of which the person con-
cerned is called upon to act reasonably knows or ought to know as to what c
was reasonable. It is evident from the record that the legal action initiated
by the appellant-plaintiff was rightly held by the Trial Court and the First
Appellate Court to have been commenced without delay and definitely
within a reasonable time. The High Court was not justified in disturbing
the finding of fact arrived at on appreciation of the evidence, while dispos-
ing of the second appeal. [474-C; 475-C] D

Chand Rani (Smt.) (Dead) by Lrs. v. Kamal Rani (Smt.) (Dead) by Lrs.,
(1993) 1 SCC 519 and K.S. Vidyanadam & Ors. v. Vairavan, [1997) 3 SCC 1,
referred to.
E
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7185of1997.

From the Judgment and Order dated 9.8.96 of the Madras High Court
in S.A. No. 1161 of 1983.

K.V. Vijay Kumar for the Appellant.
F
K. Ramamurthy, S. Prasad and Prashant Pakhiddey for the Respondent.

The Judgment of the Court was delivered by

SETHI, J. Concurrent findings of fact were set aside by the High Court
G
vide the judgment impugned in this appeal by holding that the alleged substan-
tial question of law formulated by it stood proved in favour of the respondent-
<lefcndant as the appellant-plaintiff had not established that she had been ready
and willing to perform her part of the contract. It was further held that the relief
of specific performance, being an equitable relief, the sr..ne could not be
enforced in favour of the appellant who was found 10 have failed lo prove that H
470 SUPREME COURT REPORTS [2001) SUPP. 4 S.C.R.
A she performed or had always been ready and willing to perform the essential
terms of the agreement executed between the parties.

The facts giving rise to the filing of the present appeal are that the
appellant entered into an agreement to sell (Exhibit A-2) with the respondent-
defendant initially on 5.1.1980 and subsequently on 16.3.1980 with respect to
B land measuring 27 cents for a price of Rs.24,300. A sum of Rs.8,000 is stated
to have been paid to the respondent-defendant on the day of the execution of
the agreement which was reduced to writing and signed by the parties. As the
·respondent-defendant failed to execute the sale deed, the appellant-plaintiff
filed a suit for specific performance of contract after notice to her. In her
c written statement respondent-defendant admitted the execution of the agree-
ment and the receipt of Rs.8,000. It was, however, contended that as the
appelfant-plaintiff committed breach of the contract and failed to pay the
balance amount of consideration, her suit for specific performance was not
maintainable. It was further contended that time was the essence of the contract
between the parties as was evident from the terms of the agreement.
D
On the pleadings of the parties, the Trial Court framed the following
issues:

"l. Whether the plaintiff was always ready and willing to perform his
part of contract?
E
2. Whether time was of the essence of contract?

3. Whether the plaintiff abandoned the contract voluntarily?

4. To what relief if any is the plaintiff entitled?"
F
Deciding all the issues in favour of the appellant-plaintiff, the Trial Court
decreed the suit permitting the appellant-plaintiff to deposit the balance amount
within two weeks. The respondent-defendant was directed to execute the sale
deed within two weeks fn'm the date of deposit of the balance amount of
consideration. The first appeal filed by the respondent-defendant was dis-
G missed by the 1st Additional District Judge, Madurai vide his judgment dated
25th October, 1982. In second appeal, the High Court framed the following
question of law considering it as substantial question of law:

"Whether in the circumstances of the case, the plaintiff has established
I
{
that she has been ready and willing to perform her part of the contract."
H
VEERA YEE AMMAL v. SEEN! AMMAL [SETHI, J.] 4 71

It has been conceded before us that both the courts of fact had concluded A
that the time was not the essence of the contract and that the appellant-plaintiff
<lid not abandon the contract voluntarily and was always ready and willing to
perform her part of the contract.

Whereas the learned counsel appearing for the appellant-plaintiff has
urged that the judgment of the High Court is contrary to the mandate of Section
B
100 of the Code of Civil Procedure, the learned counsel for the respondent-
defendant has tried to justify it on various grounds and persuaded us to hold
that the appellant-plaintiff, on facts, had failed to establish that she had been
ready and willing to perform her part of the contract. It is contended that even
though time was not the essence of the contract, yet the appellant-plaintiff was c
under a legal and statutory obligation to seek enforcement of the rights accru-
ing to her on the basis of agreement within a reasonable time.

Section 100 of the Code of Civil Procedure (hereinafter referred to as
"the Code") was amended by the Amending Act No.104 of 1976 making it
obligatory upon the High Court to entertain the second appeal only if it was
D
satisfied that the case involved a substantial question of law. Such question
of law has to be precisely stated in the Memorandum of Appeal and formulated
by the High Court in Its judgment, for decision. The appeal can be heard only
on the question, so formulated, giving liberty to the respondent to argue that
the case before the High Court did not involve any such question. The E
Amending Act was introduced on the basis of various Law Commission
Reports recommending for making appropriate provisions in the Code of Civil
•
Procedure which were intended to minimise the litigation, to give the litigant
fair trial in accordance with the accepted principles of natural justice, to
expedite the disposal of civil suits and proceedings so that justice is not
F
delayed, to avoid complicated procedure, to ensure fair deal to the poor
sections of the community and restrict the second appeals only on such
questions which are certified by the courts to be substantial question of law.
We have noticed with distress that despite amendment, the provisions of
Section 100 of the Code have been liberally construed and generously
applied by some Judges of the High Courts with the result that objective G
intended co be achieved by the amendment of Section 100 appears to have been
frustrated. Even before the amendment of Section 100 of the Code, the
concurrent finding of facts could not be disturbed in the second appeal. This
Court in Paras Nath Thakur v. Smt. Molumi Dasi (Deceased) & Ors., AIR
(1959) SC 1204 held: fl
472 SUPREME COURT REPORTS [2001] SUPP. 4 S.C.R.
A "It is a well settled by a long series of decisions of the Judicial
. Committee of the Privy Council and of this Court, that a High Court,
on second appeal, cannot go into questions of fact, however, erroneous
the findings of fact recorded by the courts of fact may be. It is not
necessary to cite those decisions. Indeed, the learned counsel for the
plaintiff-respondents did not and could not contend that the High Court
B
was competent tq go behind the findings of fact concurrently recorded
by the two courts of fact."

To the same effect are the judgments reported in Sri Sinha Ramanuja
Jeer Swamigal v. Sri Ranga Ramanuja Jeer alias Emberumanar Jeer & Ors.,
c AIR (1961) SC 1720; V.Ramachandra Ayyar & Anr. v. Ranwlingam Chettiar
& Anr., AIR (1963) SC 302 and Madamanchi Ramappa & Anr. v. Muthalu_ru
Bojjappa, AIR (1963) SC 1633. After its amendment, this Court in various
judgments held that the existence of the substantial question of law is a
condition precedent for the High Court to assume jurisdiction of entertaining
the second appeal. ·The conditions specified in Section 100 of the Code are
D required to be strictly fulfilled and that the second appeal cannot be decided ·
on merely equitable grounds. As to what is the substantial question of law, this
Court in Sir Chunilal V. Mehta & Sons Ltd. v. Centttl)' Spinning & Manufac-
turing Co.Ltd., AIR (1962) SC 1314 held that:

"The proper test for determining whether a question of law raised in
E
the case is substantial would, in our opinion, be whether it is of general
public importance or whether it directly and substantially affects the
rights of the. parties and if so whether it is either an open question in
the sense that it is not finally settled by this Court or by the Privy
Council or 'by the Federal Court or is not free from difficulty or calls
F for discussion or alternative views. If the question .is settled by the
highest court or the general principles to be applied in determining the
question are well settled and there is a mere question of applyirig those
principles or that the plea raised is palpably absurd the question would
not be a substantial question of law."
G In Kondiba Dagadu Kadam v. Savitribai Sopan Gujar & Ors., JT 1999
(3) SC 163 this Court again considered this aspect of the matter and held:

"If the question of law termed as substantial question stands already
· decided by a large bench of the High Court concerned or by the Privy
H Council or by the Federal Court or by the Supreme Court, its merely
VEERAYEE AMMAL v. SEENI AMMAL [SETHI, J.] 473
wrong application on facts of the case would not be termed to be a A
substantial question of law. Where a point of law has not been pleaded
or is found to be arising between the parties in the absence of any
factual format, a litigant should not be allowed to raise that question
as substantial question of law in second appeal. The mere appreciation
of the facts, the documentary evidence or the meaning of entries and
B
the contents of the document cannot be held to be raising a substantial
question of law. But where it is found that the appellate court has
assumed jurisdiction which did not vest in it, the same can be adjudi-
cated in the second appeal, treating it as substantial question of law.
Where the first appellate court is shown to have exercised its discretion
in a judicial manner, it cannot be termed to be an error either of law c
or of procedure requiring interference in second appeal. This Court
in Reserve Bank of India & Anr. v. Ramakrishna Govind Morey, AIR
(1976) SC 830) held that whether trial court should not have exercised
its jurisdiction differently is not a question of law justifying interfer-
ence." D
The question of law formulated as substantial question of law in the
instant case cannot, in any way, be termed to be a question of law much less
as substantial question of law. The question formulated in fact is a question
of fact. Merely because of appreciation of evidence another view is also
possible would not clothe the High Court to assume the jurisdiction by terming E
the question as substantial question of law. In this case Issue No.1, as framed
by the Trial Court, was, admittedly, an issue of fact which was concurrently
held in favour of the appellant-plaintiff and did not justify the High Court to
disturb the same by substituting its own finding for the findings of the. courts
below, arrived at on appreciation of evidence. F

When, concededly, the time was not the essence of the contract, the
appellant-plaintiff was required to approach the court of law within a reason-
able time. A Constitution Bench of this Hon'ble Court in Chand Rani (Smt.)
(Deatl) By Lrs. v. Kamal Rani (Smt.)(Dead) By Lrs., [1993) 1 SCC 519 held
that in case of sale of immovable property there is no presumption as to time G
being the essence of the contract. Even if it is not of the essence of contract,
the court may _infer that it is to be performed in a reasonable time if the
conditions are (i) from the express terms of the contract; (ii) from the nature
of the property; and (iii) from the surrounding circumstances, for example, the
object of making the contract. For the purposes of granting relief, the reason- H
474 SUPREME COURT REPORTS [2001] SUPP. 4 S.C.R.
A able time has to be ascertained from all the facts and circumstances of the case.

In K.S. Vidyanadam & Ors. v. Vairavan, [1997] 3 SCC 1 this Court held:

"Even where time is not of the essence of the contract, the plaintiffs
must perform his part of the contract within a reasonable time and
B reasonable time should be determined by looking at all the surrounding
circumstances including the express terms of the contract and the
nature of the property."

The word "reasonable" has in law prima.facie meaning ofreasonable in
regard to those circumstances of which the person concerned is called upon to
c act reasonably knows or ought to know as to what was reasonable. It may be
unreasonable to give an exact definition of the word "reasonable". The reason
varies in its conclusion according to ideosyncrasy of the individual and the time
and circumstances in which he thinks. The dictionary meaning of the "reason-
able time" is to be so much time as is necessary, under the circumstances, to
D do conveniently what the contract or duty requires should be done in a particu-
lar case. In other words it means as soon as circumstances permit. In Law
Lexicon it is defined to mean "A reasonable time, looking at all the circum-
stances of the case; a reasonable time under ordinary circumstances; as soon
as circumstance will permit; so much time as is necessary under the circum-
stances, conveniently to do what the contract requires should be done; some
E more protracted space than 'directly'; such length of time as may fairly, and
properly, and reasonably be allowed or required, having regard to the nature
of the act or duty and to the attending circumstances; all these convey more
or less the same idea."

In the instant case the parties had agreed to complete the sale by 15.6.1980
F
despite the fact that Lhe time was not the essence of the contract. The appellant-
plaintiff is stated to have issued letters to the respondent-defendant calling
upon to execute the sale deed and thereafter also issued notice. It was further
alleged and held proved by the courts of fact that the nature of the property
was wet land which continued to be such during the trial. As the appellant-
G plaintiff had contracted to purchase the land with a view to construct a resi-
dential house, the respondent-defendant had undertaken to remove the tel-
egraph pole in one part of the property. The Trial as well as the First Appellate
Court found that in pursuance of the agreement the said pole was got removed
in the first week of November, 1980 and lhe appellant-plaintiff issued a notice
H (Exhibit A-4) on 11.11.1980 calling upon the respondent-defendant to execute
VEERAYEE AMMAL v. SEEN! AMMAL [SETHI, J.] 475
the sale deed. The appellant-plaintiff also made a publication on 1?.11.1980 A
in a daily newspaper intimating the people at large not to purchase the property
of the respondent-defendant as the same was the subject matter of agreement
to sell executed in favour of the appellant-plaintiff. On the failure of the
respondent-defendant to comply with the conditions of the agreement, the
demands made in the letters and the notice, the appellant-plaintiff filed OS
B
No.1249 of 1980 in the month of November, 1980 itself. The legal action
initiated by the appellant-plaintiff was rightly held by the Trial Court and the
First Appellate Court to have been commenced without delay and definitely
within a reasonable time. The High Court was not justified in disturbing the
finding of fact arrived at on appreciation of the evidence, while disposing of
the second appeal. c
The impugned judgment being against the settled provisions of law is not
sustainable. The appeal is accordingly allowed by setting aside the impugned
judgment and restoring the judgments of the Trial Court and the First Appellate
Court decreeing the suit of the appellant-plaintiff against the respondent-de-
fendant. No costs. D

T.N.A. Appeal allowed.