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2026 Supreme(Guj) 1081

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Devan M. Desai, J.
Asmitaben Premjibhai Lathiya W/O. Rajeshbhai Tulsibhai Savani – Appellant
Versus
Shashikantbhai Ambashankarbhai Bhatt – Respondent
Second Appeal No. 219 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

In a suit for specific performance, the plaintiff must personally prove readiness and willingness by testifying; a power of attorney holder cannot substitute for the principal regarding essential matters of personal conduct. Furthermore, a suit for specific performance of a cancelled contract is not maintainable without a primary declaratory relief.

Headnote:(A) Specific Relief Act, 1963 - Section 16(c) - Suit for specific performance - Requirement of readiness and willingness - Whether a power of attorney holder can depose on behalf of the principal in matters within the principal's personal knowledge - A party seeking specific performance must personally prove readiness and willingness by stepping into the witness box and subjecting themselves to cross-examination - A power of attorney holder cannot substitute the principal's testimony regarding subjective states of mind and personal conduct as these are matters of personal involvement. (Paras 14, 16, 18)

(B) Code of Civil Procedure, 1908 - Section 100 - Scope of Second Appeal - Concurrent findings of fact - Appellate court cannot interfere with concurrent factual findings unless they are shown to be perverse, based on inadmissible evidence, or wholly lacking support - Re-appreciation of evidence is not permissible in second appeal simply because another view is possible. (Paras 10, 20, 21)

(C) Contractual dispute - Specific performance - Maintainability - When an agreement is cancelled by notice, the plaintiff must seek a formal declaration that said cancellation is illegal; in the absence of such a prayer, a suit for specific performance of the cancelled contract is not maintainable. (Paras 11, 19)

Facts of the case:
A dispute arose following the unilateral cancellation of an agreement to sell property via public notice. The purchaser instituted a suit for specific performance. During the proceedings, the plaintiff failed to testify personally and instead relied on the evidence of an agent (power of attorney holder). Both lower courts dismissed the suit on the grounds that the plaintiff failed to personally establish readiness and willingness, failed to challenge the validity of the contract's termination, and relied on incompetent evidence for critical factual matters.

Findings of Court:
The court concluded that the plaintiff failed to meet the mandatory requirement of proving continuous readiness and willingness as performance of the contract requires personal evidence of conduct and preparedness. The court affirmed that an agent with power of attorney is not a valid substitute for a principal when the matters at issue require personal knowledge of the principal only. Furthermore, the failure to seek a declaratory decree to set aside the termination of the agreement rendered the suit for specific performance untenable.

Issues: The main issues addressed were whether a power of attorney holder can testify in place of a principal for establishing readiness and willingness, the requirement for declaratory relief to challenge a terminated contract, and the extent of the court's jurisdiction to re-examine factual findings in a second appeal.

Ratio Decidendi: Readiness and willingness under statutory provisions demand personal evidence of the plaintiff's conduct and capability, which cannot be delegated to an agent who lacks personal knowledge of the essential transaction terms. Additionally, where a contract has been explicitly revoked or terminated by a party, a plea for its specific enforcement is unsustainable unless preceded by a prayer seeking a declaration that such termination is invalid.

Result: Second Appeal dismissed.

Table of Content
1. summary of procedural history and factual background leading to the current appeal. (Para 1 , 2)
2. parties' contentions regarding readiness, willingness, and witness competency. (Para 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13)
3. requirement for personal testimony of principal in specific performance cases. (Para 14 , 15 , 16)
4. continuous readiness and need for declaration to challenge contract termination. (Para 17 , 18 , 19)
5. limited scope of high court intervention in concurrent findings of fact. (Para 20 , 21)
6. dismissal of the second appeal and associated application. (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. 133 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. 65 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. 264 and Survey No. 26 paiki 1/4 (hereinafter referred to as the “suit property”) admeasuring Hec-Are-Sq.Mtrs. 1-06-22 together with Kharaba land admeasuring Hect-Are-Sq.Mtrs. 00-08-09, 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 and legally executed the contract for sale in favour of plaintiff of disputed property?

2. Whether defendant proves that the contract for sale executed for disputed property was duly cancelled due to non-compliance on part of plaintiff?

3. Whether plaintiff proves that plaintiff is entitled to get the relief for declaration in negative as prayed for?

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

5. What order? Decree?”

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 substantial questions of law:

“(1) Whether the Ld. Co

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2026 Supreme(Guj) 1081

IN THE HIGH COURT OF GUJARAT AT AHMEDABADDevan M. Desai, J.Asmitaben Premjibhai Lathiya W/O. Rajeshbhai Tulsibhai Savani – AppellantVersusShashikantbhai Ambashankarbhai Bhatt – RespondentSecond Appeal No. 219 of 2026, Civil Application (For Stay) No. 1 of 2026Decided On : 16-04-2026

Cases Referred (5)

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Devan M. Desai, J.
Asmitaben Premjibhai Lathiya W/O. Rajeshbhai Tulsibhai Savani – Appellant
Versus
Shashikantbhai Ambashankarbhai Bhatt – Respondent
Second Appeal No. 219 of 2026, Civil Application (For Stay) No. 1 of 2026
Decided On : 16-04-2026