- (1.) It appears to this Court that a reversal decree passed by the first Appellate Court reversing the dismissal of the suit is the subject-matter of consideration by the second Appellate Court. Although no points were formulated by the Division Bench of this Court at the time of admission of the appeal but there can not be any embargo in formulating such points at the time of hearing as the law prescribes for the same. Therefore, the appeal will be heard on the points that- 1) whether the non-compliance of section 16 of the Specific Relief Act by the plaintiff/purchaser is good enough for the purpose of contesting the issue as against him ? 2) whether the power-of-attorney being exhibit (2) is a valid piece of document for the purpose of admissibility in evidence ?
(2.) It appears to this Court that the Court of first instance discussed the matter thoroughly in respect of both the accounts. So far second point is concerned, it was held that there should be due compliance of section 85 of the Evidence Act read with section 33 of the Registration Act in respect of execution of the power-of-attorney. Therefore, the real meaning is that either the power- of-attorney will be authenticated or be registered to make a valid piece of document. In the instant case, although all the parties are residence of city of Calcutta (Kolkata), but, I find that power-of-attorney was simply executed in the city of Bombay (Mumbai). There is no plausible reasoning in connection thereto. Therefore, such authenticated document can not be a valid piece of evidence under section 85 of the Evidence Act. Section 33 A of the Registration Act says that authentication will be made within whose sub-district the principal resides. I have no manner of disbelieve that all the parties are residing in the city of Calcutta. But the same was not executed there admittedly. Therefore, any readiness and/or willingness being an outcome of purported agreement for sale on the basis of such document can not have any leg to stand. Therefore, it is expressly visible that the plaintiff was not ready and willing to perform the part performance of the contract as per section 16 of the Specific Relief Act. So far the 1st point is concerned, the Court of first instance in effect held that there is a difference between pleading and proof as regards readiness arid willingness in terms of section 16 of the Specific Relief Act. The first Appellate Court, unfortunately held that this can not be the solitary ground for refusing to grant relief in respect of specific performance of the contract. I have no semblance of doubt that such reasoning is not only wrong but also uncalled for. Therefore, I have no hesitation in my mind that the second appeal has been proceeded before this Court on the right substantial questions of law and shall be allowed on that score.
(3.) Therefore, the second appeal is allowed and accordingly the same is disposed of. The order of the first Appellate Court stands set aside. The order of the Court of first instance stands confirmed. Decree will be drawn up as early as possible, preferably by 25th February, 2004. Lower Court records will be sent down by 1st March, 2004. The appropriate proceedings in the Court below, if any, will be taken. However, no order is passed as to costs. Second appeal allowed.;