1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 168/2005 1) Shri Ajit Gaitonde, major, married, 2) Smt. Julie Gaitonde, major, wife of appellant No.1 abovenamed, Both residing at 2, Vishwanath Bhavan, Ceaser Road, Ambolim, (Andheri West) Bombay 400 058. ......... Appellants. Versus Smt. Ezilda Emiliana Cristina Pinto (since deceased) major, married, represented by her duly constituted attorney Shri Oskar J. D'Souza, C/o. Carl Enterprises, 192/Duste Corner, Municipal Market, Mapusa, Goa. 1a) Oscar D'Souza, son, major, 1b) Mrs. Marlene D'Souza, daughter-in-law, major, both residing at Camar Khazan, Mapusa, Goa. 1c) Elba Sequeira Nazareth (daughter), married. 1d) Augusto Sequeira Nazareth both residing at Kamat Kinara, Bldg. No.15, S-2, Miramar, Panaji, Goa. ......... Respondents. Mr. S.D. Lotlikar, Senior Advocate with Mr. P. S. Lotlikar, Advocate for the appellants. 2 Mr. M. B. D'Costa, Senior Advocate with Mr. J. A. Lobo, Advocate for respondent No.1(c) and (d). CORAM : SWATANTER KUMAR, CJ. & N.A. BRITTO, J. Date : 22nd January, 2009. ORAL JUDGMENT : ( Per SWATANTER KUMAR, CJ.) 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, 3 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.1/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 4 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. 4. Be that as may, we are not called upon to comment upon 5 the legality or otherwise of these contentions which have been raised before us. It is a settled rule that where a Court is rendering a finding, it has got to be relatable to a plea taken up in the pleadings of the parties and the issue framed thereupon. In the written statement, no such a plea was raised. Even the written statement of the defendants was vague in this behalf. The learned trial Court did not frame any issue as regard to the authority or otherwise of the power of attorney and the consequence of its ratification or otherwise. The learned trial Court held that the power of attorney did not empower the holder of the attorney to enter into agreement to sell or transfer the property, and as such, the findings of the trial Court are in apparent violation of the basic rule of law and the provisions of the Code of Civil Procedure. It was expected of the trial Court to frame an issue and subject the parties to trial on that issue. Non-framing of an issue is a defect in the trial and has certainly affected the rights of the parties to the suit, adversely. These are the findings which could be recorded only based on specific pleadings and upon taking appropriate evidence to the extent which parties may deem fit and proper. 5. Resultantly, we have no hesitation in setting aside the 6 Judgment and Decree of the trial Court on this short ground alone. Accordingly, the Judgment and Decree under appeal is set aside and the matter is remanded to the Trial Court for conducting trial in accordance with law, after framing issues on appropriate aspects of the case and after such pleas are raised. No order as to costs. The parties are directed to appear before the trial Court on 17th February, 2009 at 10.00 a.m. CHIEF JUSTICE JUDGE ssm.