Specific Performance -- Readiness and Willingness Proved Through Application to Sub-Registrar -- Decree upheld, sale deeds during pendency of suit held non est
(i) Evidence Act, 1872, S.114 -- Adverse Inference -- Non-Appearance of Plaintiff in Witness Box -- Non-appearance of plaintiff in the witness box permits a presumption that the case pleaded by him is not correct. This presumption is rebuttable, and where it stands rebutted by other cogent evidence on record, it ceases to be material or applicable. (ii) Civil Procedure Code, 1908, O.3 R.1 -- Power of Attorney Holder -- Scope of Deposition on Behalf of Principal -- A power of attorney holder may depose on behalf of the principal only in respect of acts within his personal knowledge, and cannot depose for the principal regarding acts done by the principal that are not personally known to him. (iii) Agreement to Sell -- Readiness and Willingness of Plaintiff -- Proof Through Application to Sub-Registrar -- Where an allegation in an application submitted to the Sub-Registrar that the plaintiff came prepared with necessary funds is not sufficiently denied, absence of separate proof of possessing such finance is not material. The application, duly stamped by the office of the Sub-Registrar and proved through evidence, establishes readiness and willingness even without proof of signature of the Sub-Registrar, particularly where defendants raise no denial of its contents. The relief of specific performance is rightly granted on this basis.
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