Mr. Shaukat Ali Khan Poa Mr. ... vs Iqbal Hussein Shaikh
2023 Latest Caselaw 4110 Bom

2023:BHC-AS:12535                                                      20-8-2021-FA=.doc

                    Uday S. Jagtap


                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   CIVIL APPELLATE JURISDICTION

                                           FIRST APPEAL NO. 8 OF 2021
                                                     WITH
                                     INTERIM APPLICATION NO. 2614 OF 2022
                                                      IN
                                           FIRST APPEAL NO. 8 OF 2021

                    Shaukat Ali Khan, Through his POA
                    Mr. Liyakat Ali Khan                              .. Appellant

                              Vs.

                    Iqbal Hussain Shaikh                              .. Respondent

                                                 .....
                    Mr. Vishal Kanade a/w Mr. Abbas Zaidy i/b Zohair & Co. for the
                    appellant
                    None for the respondent
                                                 .....

                                               CORAM : PRITHVIRAJ K. CHAVAN, J.

DATED : 24th APRIL, 2023 P.C.

1. Heard Mr. Kanade, learned Counsel for the appellant.

2. The appellant's suit for specific performance of contract

came to be dismissed by the trial Court on 23 rd November 2019

mainly on the ground that the appellant failed to prove oral

contract between him and the defendant for transfer of

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defendant's 33% share in the appellant favour. It is the

contention of the appellant that he had paid an amount of

Rs.26,50,000/- to the respondent through cheque being 33% of

the market value of the suit flat.

3. Despite service, none for the respondent.

4. Mr. Kanade, learned Counsel for the appellant would argue

that the plaintiff 's constituted attorney had entered into the

witness box on the basis of POA wherein, in fact, the plaintiff-

appellant could have entered into the witness box to substantiate

his claim. However, the deposition of the plaintiff 's brother

ought not to have been rejected as there was no cross-

examination to the same. Moreover, the appellant has filed an

application in the present appeal under Order 41, Rule 27 of the

Code of Civil Procedure, 1908 to bring on record the sale deed

pursuant to which the suit flat was purchased. In this application,

the appellant has produced a communication indicating that the

said sale deed remained with the concerned bank and, therefore,

could not be produced at the stage of trial. He submitted that,

even otherwise, this is a fit case for remand for considering inter

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alia the said sale deed. He submits that even in view of the ratio

laid down by the Supreme Court in the case of Janki Vashdeo

Bhojwani and Anr. Vs. Indusind Bank Ltd. & Ors. AIR 2005 SC

439, the power of attorney holder cannot depose in place and

instead of the principal. He also submits that the appellant and

the respondent being close relatives, something possibly can be

worked out if respondent / original defendant appears on remand

of the suit and, therefore, in view of all the aforesaid contentions

he prayed for remand of the case.

5. Having perused the impugned judgment as well as the

submissions made across the bar, the impugned judgment is set

aside and the matter is remanded back to the trial Court.

6. The Trial Court shall re-admit the suit under its original

number in the Registry of Civil Suit and proceed to determine the

same in accordance with law.

7. The parties shall appear before the trial Court on 7 th June,

2023.

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8. The appeal stands disposed of.

9. In view of the disposal of the appeal, Interim Application

does not survive and the same is also disposed of.

(PRITHVIRAJ K. CHAVAN, J.)

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