PATEL ISHWARLAL SHIVRAM Vs. RAJPUT ADAJI MEGHAJI HEIRS

JUDGEMENT

(1.) THE present appeal is one under section 100 of the Code of Civil Procedure, wherein the appellants are the original defedants and the respondents are the original plaintiffs.

(2.) THE scope of section 100 CPC, and the powers of the High Court while exercising jurisdiction as a second appellate court are by now well demarcated and require no detailed discussion. THE Supreme Court has, in the case of (i) Ramaswamy Kalingaryar Vs. Mathayan Padayachi (AIR 1992 Supp (1) SCC page 712), (ii) Kashibai w/o of Lachiram (2) 1995(7) JT (SC) 48 and (iii) Parsini (dead) through Legal Representatives Vs. Atma Ram (AIR 1996 SC 1558), clearly reiterated the principle that the High Court cannot, while functioning as a second appellate court under section 100 CPC, upset the findings of fact recorded by the lower appellate court by reassessing the evidence, or reassess the qualitative value of such evidence on record, and thus cannot reverse such findings of fact. In fact, the High Court cannot interfere with such findings of fact even by examining or reappreciating the evidence from the aspect of "sufficiency of proof".

(3.) MR. M.R. Vyas, learned advocate appearing for MR. RC Jani for the appellants submitted that time is the essence of the contract and when the specific time is mentioned in the document for repurchase the plaintiffs are not entitled to get the specific performance of the agreement after the period is over. He submitted that this specific term is mentioned in the document Ex. 101 and that looking to the said condition therein it is very clear that the plaintiffs are entitled to redeem the property before the completion of the 26th year from the date of execution.