MAIN POINTS
When signature and contents of the said power of attorney are admitted, there is no question of proving the said document.
Court’s discretion to grant decree of specific performance is discretionary but not arbitrary.
Efflux of time and escalation of price of the property by itself cannot be a valid ground to deny the relief of specific performance.

JUDGMENT :

M.Y. EQBAL, J.

Leave granted.

2. This appeal by special leave is directed against the judgment and order dated 1.3.2012 passed by the High Court of Karnataka whereby Regular First Appeal No.265 of 1999 filed by the defendant-respondent was allowed and the judgment and decree passed by the trial court in the suit of the appellant-plaintiff was set aside.

3. The facts giving rise to the present appeal are that the respondent-first defendant is the absolute owner of 1/3rd undivided share in the property bearing no.43, Mission Road, Bangalore (hereinafter referred to as the ‘suit schedule property’) and his elder brother-second defendant is his power of attorney holder. It is the case of the plaintiff that on 25.6.1979, the second defendant-respondent as registered power of attorney holder entered into an agreement to sell 1/3rd share in the suit property to the appellant-plaintiff for consideration of Rs.40,000/-and received advance of Rs.5,000/-. As per the aforesaid registered agreement, the balance consideration was to be paid on or before 30.12.1980 and the parties to the agreement had to take necessary steps for obtaining permission from the competent authority under the Urban Land (Ceiling and Regulation) Act. Plaintiff’s further case is that he paid the entire sale consideration to the second defendant who received the same on behalf of the first defendant. It is contended that the plaintiff had been always ready and willing to perform his part of the contract and that the plaintiff has been requesting the defendants to take necessary steps to obtain permission from the Urban Land Ceiling Authority. Since the defendants failed to take necessary steps, the plaintiff issued legal notice to the defendants on 5.3.1980 and 25.5.1980 calling upon the defendants to complete the sale in favour of the plaintiff and to perform their part of the contract. The defendants sent reply to notice on 4.10.1980 wherein they repudiated the agreement in question. As averred, the plaintiff has been in possession of the undivided share of the defendants in the schedule property in pursuance of the above agreement for sale. Since the defendants failed to execute the sale deed, the plaintiff filed a suit for specific performance praying for a direction to the defendants to execute the sale deed in respect of 1/3rd share in the suit property.

4. In the suit, the defendants 1 and 2 have filed separate written statements. In the written statement filed by first defendant he has admitted that he is the owner of 1/3rd share in the suit property. He has also admitted that the 2nd defendant is the brother and registered power of attorney holder of the first defendant. But he pleaded that the power of attorney was given by him to the second defendant only for the limited purpose of looking after and managing the suit property. He denied that there was an agreement to sell the suit property in favour of the plaintiff and also denied of having received advance amount of Rs. 5000/-. Respondent-first defendant alleged that the said agreement was prepared by his elder brother by misusing the power of attorney and second defendant had acted on the ill-advise of the plaintiff, to play fraud on him. He contended that the suit property was worth more than Rs.3,00,000/-on the date of the said agreement and he had sent a registered notice to the plaintiff on 1.10.1983 denying the execution of the said agreement.

5. It has been further alleged by the respondent-first defendant that one D. Narendra had filed a suit O.S. No.767/78, re-numbered as O.S.2762/80, seeking partition of 1/3rd share in the suit scheduled property. Appellant-plaintiff herein was the 4th defendant in the said suit and he had filed his written statement on 27.2.1979, wherein he pleaded that he had agreed to purchase the suit property. He contended that the same goes to show that the plaintiff had planned to snatch the property and that the agreement in question came into existence in c