1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR SECOND APPEAL NO.365 OF 2008 Kishore s/o Waman Mundle .vs. Krishnakant Kripashankar Mishra =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Office Memorandum of Coram appearances, Court's orders or directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Mr.U.P.Deopujari Adv. for the appellant. Mr.D.L.Dharmadhikari Adv. for resps. C ORAM : C.L.Pangarkar, J. DATED : 23rd April, 2010. 1. Heard the learned counsel for the appellant and the respondents. 2. This is an appeal by the original plaintiff. The plaintiff instituted a suit for specific performance of contract against the defendants contending that defendant no.2 had entered into a contract of sale of the suit house with the plaintiff for and on behalf of rest of the defendants. It was contention of the plaintiff that he was always ready and willing to perform his part of contract but defendants were avoiding to execute the sale-deed. Hence, he instituted the suit. It appears that even before the suit was filed, the property was transferred by the 2 defendant nos. 1 to 5 in favour of defendant nos. 6 to 9. The decree for specific performance was also, therefore, sought against defendant nos. 6 to 9. Defendant nos. 1 to 5 remained absent and were proceeded ex parte. 3. The defendants nos. 6 to 9, however, contested the claim and contended that the suit was barred by limitation and defendants were the bona fide purchasers. It was also contended that only defendant nos. 2 was not authorised to enter into an agreement of sale of the property. 4. The learned Judge of the Trial Court found that the plaintiff had paid Rs.1000/- towards earnest initially and subsequently a sum of Rs.25000/-. He found that the time was the essence of the contract and the agreement entered into by defendant no.2 was illegal and void. Holding so, he dismissed the suit for specific performance as well as claim for refund of the earnest. 5. The plaintiff, therefore, preferred an appeal before the District Judge. The Additional District Judge, who heard the appeal, found that the plaintiff was ready and willing to perform his part of contract. He, however, observed that defendant no.2 alone had no authority to enter into a contract of sale for and on behalf of the other defendants. He, therefore, found that the decree for specific performance of contract could not be passed and therefore, directed defendant no.2 to refund the earnest money. 6. The plaintiff feels aggrieved and prefers this second 3 appeal. 7. I have heard the learned counsel for the appellant and the respondents. 8. The learned counsel for the appellant submits before me that the only substantial question of law in this appeal was non-consideration of the evidence available on record. He submits that the learned judge of the trial court had rejected the specific performance on the ground that other defendants had not authorised defendant no.2 to enter into the contract, which according to the learned counsel, is against the evidence available on record. He submits that non-consideration of this is a substantial question of law. There is no doubt that where the evidence is not considered by the courts below though available on record, that may be one of the grounds to challenge the finding and that could be a substantial question of law. The question, however, is whether, as suggested by the learned counsel for the appellant, there was non- consideration of evidence on record. He had taken me through the agreement of sale as well as several Powers of Attorney executed by the other defendants in favour of defendant no.2 and by defendant no.2 in favour of the plaintiff. 9. Upon going through the agreement of sale (Exh.32), it is found that the said agreement is dated 14/1/1979. The said agreement recites that defendant no.2 Rameshchandra is authorised by the other co-owners to 4 enter into a contract on the basis of Powers of attorney said to have executed in favour of defendant no.2 to 7. I am taken through the several Powers of Attorney by the learned counsel for the respondents. After having gone through the Powers of Attorney, it is apparent that those Powers of Attorney though authorise defendant no.2 to enter into an agreement of sale were executed after the alleged agreement of sale. Obviously, therefore on the date the said agreement was entered into, the rest of the defendants had not authorised defendant no.2 alone to enter into a contract of sale on their behalf. They have not by that power of attorney ratified the said agreement executed in favour of the plaintiff. In the circumstances, the finding as recorded by the appellate court that there was no authority by the defendants in favour of defendant no.2 appears to me to be correct. Therefore, this does not appear to be the case of non-consideration of evidence at all. 10. It is brought to my notice by the learned counsel for the respondents that the defendant nos. 1and 2 i.e. Krishnakant and Rameshchandra are dead. Defendant no.1 is said to have died during pendency of suit while defendant no.2 Rameshchandra during the pendency of the first appeal. The heirs of defendant no.1 were not brought on record. The heirs of defendant no.2, who died during the pendency of the appeal, were also not brought on record. The learned counsel for the respondents, 5 therefore, submits that the suit and appeal had, therefore, abated. 11. Order 22 Rule 4 Sub-Rule 4 of C.P.Code says that where the defendants had not filed written statement in the matter, their legal representatives may not be brought on record. In view of this, if the defendants did not care to file the written statement and contest the claim, the appeal could not be said to have abated at all and suit could not be said to have abated for not bringing the legal representatives on record. In view of this, there is no substance in the contention as raised by the learned counsel for the respondents. However, I find that the decree as is passed by the first appellate court does not suffer from any infirmity. There is no substantial question of law involved. The question which was involved is rightly decided by the courts below. There is no substance in the appeal. The same is dismissed in limine. JUDGE. chute 6