The attorney holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge.

JUDGMENT :

Hemant Chandangoudar, J.

1. This appeal under sec. 100 of the Code of Civil Procedure is filed against the judgment and decree dtd. 29/7/2008 passed by the Additional Civil Judge (Sr.Dn) Gadag in R.A.No. 46/2004 reversing the judgment and decree dtd. 27/8/2003 passed by the Civil Judge (Jr.Dn) and JMFC, Laxmeshwar in O.S.No. 147/1992.

2. Parties are referred as per their ranks before the trial court for the sake of convenience.

3. The defendant is in appeal. Plaintiff filed a suit for specific performance of agreement of sale dtd. 13/12/1989. The plaint averments in brief are that the defendant, who is the owner of the suit property, executed agreement of sale in favour of the plaintiff agreeing to sell the suit property for total sale consideration of Rs.30,000.00 and out of the same, Rs.21,000.00 was paid as an advance sale consideration, the receipt of which was duly acknowledged by the defendant. It was further contended that though the plaintiff was ready and willing to perform his part of contract to get the registered sale deed executed by paying balance sale consideration amount of Rs.9,000.00 to the defendant, the defendant was not ready to perform his part of contract to execute registered sale deed in favour of the plaintiff by receiving the balance sale consideration. Hence, the suit.

4. The defendant filed written statement denying the execution of agreement of sale in favour of the plaintiff and also denied that there was any financial constraint on the part of the defendant so as to sell the suit property to the plaintiff. It was further contended that the defendant has not received a sum of Rs.21,000.00 towards advance sale consideration. It was further contended that the plaintiff is an Excise Contractor and he supplied liquor to the defendant as and when required and he had paid some amount to the defendant towards supply of alcohol. Hence, sought for dismissal of the suit.

5. The trial court on the basis of the pleadings of the parties, framed issues and recorded evidence of the parties. The plaintiff in order to prove his case, examined his GPA holder as PW1 and two other witnesses as PW2 and PW3 and marked documents as per Ex.P1 to Ex.P17. The defendant, to substantiate his claim examined DW1 and marked Ex.D1. The trial court after examining the evidence on record, recorded a finding that the plaintiff has failed to prove that the defendant had executed an agreement of sale in his favour, but however directed to refund Rs.21,000.00 with interest at the rate of 6% per annum to the plaintiff in view of categorical admission of defendant that the plaintiff has paid certain amount to him when he was under the influence of intoxication. Taking exception to the same, defendant filed regular appeal before the first appellate court.

6. The first appellate court, after re-appreciating the evidence on record, reversed the finding recorded by the trial court by holding that the plaintiff has proved the execution of agreement of sale in his favour by the defendant and further decreed the suit for specific performance. Being aggrieved, the plaintiff is in appeal.

7. Learned counsel for appellant submits that the first appellate court was not justified in accepting the evidence tendered by PW1, who is GPA holder of the plaintiff and who has not participated in the alleged transaction and in the absence of personal knowledge of the transaction, the evidence tendered by PW1 cannot be looked into. He further submitted that the plaintiff has not proved execution of agreement of sale as per mandate contained under sec. 61 of the Indian Evidence Act. He further submitted that the plaintiff has not proved that he was always ready and willing to perform his part of contract. However, the first appellate court ignoring these material aspects, has passed impugned judgment and decree which is not sustainable in law and same requires to be set aside.

8. On the other hand, learned counsel for the defendant submitted that the first