SUPREME COURT OF INDIA

Before:- R.C. Lahoti, CJ, H.K. Sema and B.N. Srikrishna, JJ.

Civil Appeal Nos. 1408-1409 of 2005 (Arising out of SLP(C.) Nos. 3581-3582 of 2004. D/d. 25.2.2005.

Dulara Devi & Ors. - Appellants

Versus

Mahdei - Respondent

Civil Procedure Code, 1908, Section 100 - Specific Relief Act, 1963, Section 20 - Suit for specific performance decreed by trial court and first appellant court - Second appeal against - Summary dismissal by High Court holding that the findings of fact were concurrent and no case made out calling for interference - There are several relevant factors calling for consideration for exercise of discretion by the court in favour of or against decreeing a suit for specific performance - The same having not been considered, matter remitted back to High Court for fresh decision.

[Paras 3 and 4]

ORDER

R.C. Lahoti, C.J. - Leave granted.

2. A suit for specific performance of agreement to sell filed by the respondent was decreed in part. The decree was confined to sale of ¼th share only. Both the parties preferred cross appeals. The appeal filed by the plaintiff was allowed while the appeal filed by the defendant was dismissed. The First Appellate Court directed the suit to be decreed in full. The second appeal preferred by the defendant has suffered a summary dismissal by the High Court forming an opinion that the findings of fact were concurrent and, therefore, no case was made out calling for interference in exercise of second appellate jurisdiction.

3. Having heard the learned counsel for the parties, we are satisfied to hold that the disposal of the appeal at the hands of the High Court has not been satisfactory. There are several relevant factors calling for consideration for exercise of discretion by the Court in favour of or against decreeing a suit for specific performance which, in our opinion, ought to have received consideration by the High Court.

4. The appeal is allowed. The impugned judgment of the High Court is set aside. Instead, the appeal is directed to be restored on the file of the High Court. The High Court shall, in the first instance, hear the learned counsel for the parties so as to identify the substantial questions of law arising for decision in the appeal within the meaning of Section 100 of the Civil Procedure Code, 1908. If the High Court feels satisfied that there are substantial questions of law involved in the case calling for decision by the High Court then the same shall be framed and the appeal set down for hearing.

5. The parties through their learned counsel are directed to appear before the High Court on 4th April, 2005.

6. No order as to the costs.

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