LexS. KESARI HANUMAN GOUD versus ANJUM JEHAN & ORS.
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A B c [2013] 2 S.C.R. 750 S. KESARI HANUMAN GOUD v. ANJUM JEHAN & ORS. (Civil Appeal Nos. 2885-2887 of 2005 etc.) APRIL 10, 2013 [DR. B.S. CHAUHAN AND FAKKIR MOHAMED IBRAHIM KALIFULLA, JJ.] CODE OF CIVIL PROCEDURE, 1908: s.96 read with 0. 41, r.31- First appeal before High Court challenging the judgment and decree passed in a suit for specific performance of agreement to sell - High Court holding that the plaintiff was not ready and willing to perform his part 0 of contract - Held: Finding recorded by High Court on this issue is perverse being contrary to evidence on record - Further, High Court while deciding the first appeal u/s 96, did not consider all the issues as is required under 0. 41, r.31 - Judgment and decree passed by High Court set aside and E that passed by trial court restored - Appellant directed to refund the amount of compensation to first respondent along with 9% interest. 0. 3, "· 1 and 2 - Recognized agent - Power of attorney holder - Held: It is a settled legal proposition that power of F attorney holder cannot depose in place of the principal - Nor can he depose for the principal in respect of a matter, as regards which, only the principal can have personal knowledge and in respect of which, the principal is entitled to be cross-examined. G H The appellant in C.A Nos. 2885-2887 of 2005 filed Suit No. 30 of 1984 against respondent no. 1 (defendant no. 1) for specific performance of the agreement to sell entered into between the parties on 15.10.1977 and for 750 S. KESARI HANUMAN GOUD v. ANJUM JEHAN 751 directing respondent no. 1 to execute a registered sale A deed in his favour ignoring the agreement to sell in favour of respondents/defendants no. 3, 6 and 7 which were entered into despite the public notice issued by the plaintiff. It was the case of the plaintiff that he had always been ready and willing to perform his part and it was the first defendant who evaded to perform her part of the suit agreement. Respondent/defendant no. 1 denied the plaint allegation and stated that when the plaintiff failed to raise necessary money, he informed her that she was at liberty B to sell the property to anyone. Respondent no. 3/ c defendant no. 7 also filed Suit No. 135 of 1984 for perpetual injunction restraining the plaintiff from interfering with the construction of a theatre building including the compound wall which was in close proximity to his land. During the pendency of the suit 0 respondent no. 1 executed and got registered a sale deed in favour of respondent no. 2/defendant no. 3 with respect to a part of the suit property. Further, the GPA holder also got registered another sale deed in favour of respondent no. 2/defendant no. 3 with respect to a part of the suit land. The trial court decreed the suit of the E appellant except for a small area which had been purchased by defendant no. 6. The suit filed by respondent no. 3/defendant no. 7 was also dismissed. In the appeals preferred by both sides, the High Court Jleld that the plaintiff-appellant was not ready and willing to perform his part of contract. However, it held the plaintiff entitled to get the sale deed execuited in respect of the land excluding the land sold to defendants nos. 3, 6 and 7. Both the sides filed the appeals. Disposing the appeals, the Court HELD: 1.1 The plaint contained a specific averment that the plaintiff had always been ready and willing to perform his part. In the written statement the said F G H 752 SUPREME COURT REPORTS [2013] 2 S.C.R. A averment was simply denied. In the replication the plaintiff stated that he was capable of raising necessary finance. The appellant/plaintiff examined himself as PW.1, and in his cross-examination he has denied any suggestion made to him to the effect that he had ever 8 informed the power of attorney holder of respondent No.1 that he would be unable to raise the balance of the sale consideration. With respect to the issue regarding financial capacity to pay, the appellant/plaintiff examined PW.2 and PW.3. They fully supported his case, deposing c that he was a man of means, and that he had sufficient properties and the means to purchase the said suit property. The finding recorded by the High Court on this issue is perverse being contrary to the evidence on record. [para 8-12] [761-C-E;; 762-B-D; 763-A-B] D 1.2 It is a settled legal proposition that the power of attorney holder c
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