AJIT GAITONDE Vs. EZILDA EMILIANA CRISTINA POINT

JUDGEMENT

(1.) The present appeal is directed against the judgment and decree passed by the learned Civil Judge, Sr. Division, Panaji, Goa by which he dismissed the suit of the plaintiffs for grant of relief of specific performance. However, he directed refund of the earnest money of Rs. 1,15,000/- with interest, which is stated to have been paid under the terms of the agreement. In view of the course of action that we propose to take while disposing of the present appeal, it is not necessary for us to notice the facts, in detail, in this appeal. Suffice it to note that the parties had entered into an agreement for sale, dated 25.9.1987 which was executed by a attorney on behalf of the original owner. However, the relationship between the parties was that of mother and son. The plaintiffs brought a suit for specific performance to which various defences were raised. The learned trial Court while declining to grant the decree for specific performance in favour of the plaintiffs, primarily, dismissed the suit on the ground that the defendants can always fall upon the plaint and the evidence produced by the plaintiffs to prove that their case is false and that this aspect has to be based on the material produced by the plaintiffs. The learned trial Court observed that when the defendant could demonstrate the false claim of the plaintiffs through evidence, there could be no question of the plaintiffs' claiming that they were taken by surprise and that such a plea could not be taken by the defendants and held that the purpose of raising the plea in defence is not to surprise the plaintiffs at the time of trial and when plaintiffs themselves produced evidence which revealed that the plaintiffs' case is false, the plaintiffs could not be allowed to urge that although their evidence prove their case to be false, the suit should be allowed because of deficiency in the written statement filed by the defendant. The learned trial Court observed that the defendants 1(c) and 1(d) demonstrated through the evidence of the plaintiffs, viz. the agreement Exhibit PW. 1 /A and the Power of Attorney Exhibit PW.l/D that the attorney had no power to enter into agreement for sale and that there was no clause to ratify the acts and as such, it was not necessary for the defendants to take the plea in their defence and that they could very well demonstrate that the case of the plaintiffs was false, in which the defendants have succeeded. By holding so, the learned trial Court observed that the power of attorney Oscar D'Souza had no power to enter into agreement for sale with the plaintiffs.

(2.) The correctness of the above finding is challenged by the appellants before us, primarily on the ground that no such plea was raised in the written statement filed by defendant No. 1 and no issue was framed. The finding has been recorded in the absence of any issue in that regard and thus, it is against the very essence of civil jurisprudence.

(3.) The learned Counsel appearing for the respondents argued that the power of attorney alleged to have been executed in favour of the attorney holder did not empower him to sell the property and there was not even ratifying clause. On the other hand, according to the appellants, the attorney holder had full right to transfer the property and, therefore, execution of the agreement to sell in no way suffers from any infirmity and even the mother, the real owner, had written in favour of the appellant No. 1 to agree to sell the property.