Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2026 Supreme(Guj) 1074

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Devan M. Desai, J.
Asmitaben Premjibhai Lathiya W/O Rajeshbhai Tulsibhai Savani Through Poa Rajeshbhai Tulsibhai Savani – Appellant
Versus
Sanatkumar Ambhashankarbhai Bahtt – Respondent
Second Appeal No. 213 of 2026 Civil Application (For Stay) No. 1 of 2026
Decided On : 16-04-2026

Advocates Appeared:
For the Appellant : Mr. Harshvardhan D. Mehta
For the Respondent: Mr. Vishal P Thakker

Specific performance requires the plaintiff to personally prove continuous readiness and willingness under statutory mandates. A Power of Attorney holder cannot testify on matters requiring the principal's personal knowledge. Furthermore, a suit for specific performance of a cancelled agreement is not maintainable absent a formal declaration challenging the cancellation.

Headnote:(A) Code of Civil Procedure, 1908 - Section 100, Order 41 Rule 31 - Specific Relief Act, 1963 - Section 16(c) - Agreement to sell - Specific performance - Readiness and willingness - Power of Attorney holder as witness - Concurrent findings of fact - Scope in second appeal.

(B) Appeal - Scope and ambit - Second appeal under Section 100 - High Court cannot interfere with concurrent findings of fact recorded by lower courts unless such findings are perverse, based on no evidence, or suffer from misreading of evidence or violation of mandatory provisions of law. (Paras 20, 21)

(C) Specific performance - Condition precedent - Plaintiff must aver and prove continuous readiness and willingness to perform essential terms of contract from the date of agreement till the decree is passed - Failure to establish such readiness and willingness disentitles the party to discretionary relief. (Paras 14, 17, 18)

(D) Evidence - Power of Attorney holder - Cannot depose on behalf of a party regarding matters within the personal knowledge of the principal - Principal must personally appear in the witness box to prove facts like readiness and willingness unless the agent acted in the specific transaction - Third-party agents without personal knowledge of the terms and financial preparedness cannot substitute the principal. (Paras 14, 16, 18)(E) Contract Law - Termination of agreement - A suit for specific performance of a cancelled or terminated agreement is not maintainable in law unless the plaintiff specifically seeks a declaratory relief challenging the validity of the cancellation/termination. (Paras 11, 14, 19)

Facts of the case:
A contract for the sale of land was executed with a stipulated time for payment of the balance consideration. The developer/seller issued a public notice cancelling the agreement due to failure to pay within the agreed timeline. The purchaser filed a suit for specific performance, but the purchaser failed to appear personally in the witness box, relying instead on a Power of Attorney holder to prove readiness and willingness. Both the trial court and the first appellate court dismissed the suit.

Findings of Court:
The courts found that the purchaser failed to satisfy the mandate of Section 16(c) of the Specific Relief Act regarding continuous readiness and willingness. The testimony of the Power of Attorney holder was deemed insufficient as they lacked personal knowledge of the essential terms and financial conduct of the principal. Furthermore, the suit was held to be not maintainable as the plaintiff failed to seek a formal declaration regarding the illegality of the agreement's cancellation.

Issues: The main issues were whether a Power of Attorney holder can testify on behalf of a principal regarding personal knowledge of a contract, whether the plaintiff established continuous readiness and willingness, and the legality of seeking specific performance without challenging the underlying termination of the contract.

Ratio Decidendi: Readiness and willingness is a matter of personal conduct and state of mind, which requires the personal appearance of the plaintiff as a witness; a Power of Attorney holder cannot replace the principal in matters requiring personal knowledge. Moreover, any lawsuit for specific performance involving a previously cancelled agreement is legally unsustainable unless a specific relief is prayed to declare such cancellation ineffective or illegal.

Result: Appeal dismissed.

Table of Content
1. procedural history and factual background of the suit property agreement. (Para 1 , 2)
2. contentions on readiness, willingness, poa competency, and necessity of specific prayer for cancellation. (Para 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13)
3. analysis of evidentiary burden and the competence of poa holders in specific performance suits. (Para 14 , 15 , 16 , 17 , 18 , 19)
4. scope of high court interference in second appeals under section 100 cpc. (Para 20 , 21)
5. final dismissal of the second appeal due to lack of substantial questions of law. (Para 22 , 23)

JUDGMENT :

Devan M. Desai, J.

1. The present Second Appeal is filed under Section 100 of the Code of Civil Procedure, 1908 (hereinafter, referred to as “the Code”) by the appellant – original plaintiff assailing the judgment and decree dated 26.02.2026 passed by the learned 4th Additional District and Sessions Judge, Bhavnagar in Regular Civil Appeal No. 135 of 2022 upholding the judgment and decree dated 04.04.2022 passed by the learned Principal Senior Civil Judge, Ghogha in Regular Civil Suit No. 124 of 2015.

2. Heard learned advocate Mr. Harshvardhan Mehta for the appellant – plaintiff and learned advocate Mr. Vishal Thakkar for the respondent – defendant.

For the sake of convenience, parties are referred to as per their original status in the suit. Appellant is original plaintiff and respondent is original defendant.

3. The brief facts of the case are as follows:

3.1 An agreement to sell dated 15.03.2011 was executed by the defendant in favour of the plaintiff in respect of agricultural land situated at Village – Kareda, Taluka – Ghogha, District – Bhavnagar, bearing Revenue Account No. 262 and Survey No. 26 paiki 1/2 (hereinafter referred to as the “suit property”) admeasuring Hec-Are-Sq.Mtrs. 1-06-22 together with Kharaba land admeasuring Hect-Are-Sq.Mtrs. 0-08-09, aggregating to a total area of Hect-Are-Sq.Mtrs. 1-14-31. Under the said agreement, the total sale consideration was fixed at Rs.2,52,000/-, out of which a sum of Rs.52,000/- was paid as earnest money at the time of execution of the agreement, and the balance amount of Rs.2,00,000/- was agreed to be paid at the time of execution of the sale deed. The defendant issued a public notice dated 30.11.2011 purporting to cancel the agreement. The plaintiff immediately responded through a legal notice dated 02.12.2011, clearly asserting her readiness and willingness to perform her part of the contract and calling upon the defendant to execute the sale deed upon receipt of the balance consideration. As the defendant failed to perform his contractual obligations, the plaintiff was constrained to file Special Civil Suit before the Court of learned Principal Civil Judge, Ghogha for a relief of specific performance. Defendant appeared and contested suit by filing written statement. On the basis of pleading, following issues were framed at Exhibit – 28:

“1. Whether plaintiff proves that defendant has duly executed the contract for sale dated 15.03.2011 of disputed land?

2. Whether plaintiff proves that plaintiff has expressed their ready and willingness for complying the conditions on their behalf of above said contract for sale?

3. Whether defendant proves that the contract for sale of disputed property/land executed on 15.03.2011 is forged and illegal?

4. Whether defendant proves that defendant has dulv cancelled the above said contract for sale?

5. Whether plaintiff is entitled to get relief as prayed in para. 11 of the plaint?”

After considering the material placed on record, the learned Principal Civil Judge, Ghogha, vide judgment and decree dated 04.04.2022, dismissed the suit. The First Appeal preferred by plaintiff also came to be dismissed on 26.02.2026. Being aggrieved and dissatisfied with the said judgment and decree, the appellant – original plaintiff is before this Court by way of the present Second Appeal.

3.2 Learned advocate for the appellant – original plaintiff has proposed the following su

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2026 Supreme(Guj) 1074

Cases Referred (7)