JUDGMENT 1. - This civil first appeal under Sec. 96 CPC has been filed against the judgment and decree dated 16.09.1995, passed by the Additional District Judge No. 1, Ajmer decreeing the respondents-plaintiff's (hereinafter 'the plaintiff) suit for specific performance. The facts of the case are that the plaintiff filed a suit in the Court of District Judge, Ajmer on 08.09.1986. Subsequently the suit was transferred to the Court of Additional District Judge No. 1, Ajmer. In the suit it was stated that the plaintiff had entered into an agreement to sell with the defendant-appellant (hereinafter the defendant') on 30.06.1983 pertaining to house No. 1-Kh-9, admeasuring 40' X 60' situate in Vaishali Nagar, Ajmer for a sum of Rs. 85,000/-. It was stated that the defendant executed an agreement in favour of the plaintiff on the said date. A sum of Rs. 15,000/- was paid by the plaintiff to the defendant through cheque on 01.07.1983 and Rs. 10,000/- in cash on the same date. Thereafter, the plaintiff alleged that he had paid further sum of Rs. 25,000/- to the defendant on 01.10.1983 through two cheques consequent to which the total payment to the defendant under the agreement to sell dated 30.06.1983 aggregated to Rs. 50,000/-. It was stated that the defendant as allottee of the Rajasthan Housing Board (hereinafter 'RHB') in respect of the suit property had agreed to get a clearance certificate and permission from the RHB for transferring the said house after making of payment due and outstanding amount to the RHB against the defendant. It was stated that under the agreement in issue a sale/transfer-deed as well as perpetual lease-deed in favour of the plaintiff was to be executed on or before 30.12.1983 and also registered with the jurisdictional Sub-Registrar. The further case of the plaintiff was that he requested the defendant a number of times to discharge his obligations under the agreement to sell dated 30.06.1983 and obtain the requisite clearance certificate from the RHB by making the payment of amount due to them and then execute a registered sale-deed qua the suit property in favour of the plaintiff, but to no avail. It was stated that the plaintiff had been at all times and was still at all time of the filing of the suit and thereafter ready and willing to perform his obligations under the agreement to sell dated 30.06.1983. It was stated that the plaintiff had been at all times and was still at all time of the filing of the suit and thereafter ready and willing to perform his obligations under the agreement to sell dated 30.06.1983. The plaintiff stated that in the circumstances obtaining, he served a registered notice dated 13.03.1985 on the defendant requiring him to perform his part of the contract for sale dated 30.06.1983 and also inform him as he was always eager and ready and willing to perform his part of the contract. It was stated that even the notice did not elicit any response from the defendant. Reiterating that the plaintiff was ready and willing to even deposit the amount due to the RHB by the defendant with the right of adjustment thereof against the balance consideration due and payable under the agreement to sell dated 30.06.1983 to the plaintiff it was prayed that the suit as laid for specific performance in terms of the agreement to sell dated 30.06.1983 be decreed in favour of the plaintiff. 2. On service of notice of the suit, the defendant filed a written statement of absolute denial. It was stated that the defendant had never entered into any agreement to sell with the plaintiff, nor signed any deed in regard thereto on 30.06.1983 or the receipted Rs. 50,000/- or any amount at all from the plaintiff thereunder. Stating that the entire suit as laid was based on gross falsities, without merit and outcome of a conspiracy, it was prayed that the suit be dismissed. 3. On the basis of the pleadings of the parties, the learned trial Court framed five issues which were as under: 4. The plaintiff, in support of his case, examined four witnesses and relied upon 11 documents, exhibited before the trial Court. The defendant, in defence, relied on the evidence of his Power of Attorney, one Kartar Raisinghani, his brother (through whom he had in fact been impleaded in the suit) in view of the fact that the defendant did not reside in Ajmer, but was a resident of USA. On consideration of the evidence before it, the learned trial Court decided all the issues in favour of the plaintiff and decreed the suit. On consideration of the evidence before it, the learned trial Court decided all the issues in favour of the plaintiff and decreed the suit. " 1- D;k fnukad 30-6-1983 dks izfroknh us oknhx.k dks oknxzLr 85]000@& :i;s esa fodz; djus dk bdjkjukek fu"ikfnr fd;k Fkk\ 2- D;k oknhx.k }kjk izfroknh dks dqy :i;s 50]000@& edku dh dher ds vnk dj fn;s\ 3- D;k oknhx.k lnSo vkSj vkt Hkh lafonk dk Hkh fofufnZ"Vikyu djus ds fy, rS;kj gS\ 4- D;k okn gkmflax cksM dks i{kdkj ugha cuk;s tkus ds dkj.k fujLr fd;s tkus ;ksX; gS\ 5- vuqrks"k\ " 5. Mr. Anil Mehta, appearing for the defendant, now the appellant before this Court in this first appeal, has emphatically submitted that the suit as laid and the evidence in support thereof at variance with the pleadings could not have been considered at all. It has been submitted that while the averments in the plaint related to the agreement allegedly executed by the defendant and the receipt of monies by him in pursuance thereof, the evidence on record as laid by the plaintiff pertained to the agreement to sell dated 30.06.1983 in fact having been entered into with one Ram Raisinghani, in whose favour the defendant had allegedly executed a Power of Attorney in the USA on 29.09.1981. Counsel submitted that nowhere in the plaint was any reference made to the agreement to sell dated 30.06.1983 having been entered into by the plaintiff with the defendant through his purported Power of Attorney in favour of Ram Raisinghani. He submits that on this count alone the learned trial Court ought not to have read the said evidence beyond the pleadings before it. Counsel further submitted that even otherwise a bare look at the Power of Attorney dated 29.09.1981 (Ex-2) executed by the defendant in favour of Ram Raisinghani purportedly authorised to enter into agreement to sell dated 30.06.1983 and receive consideration in pursuance thereof would show that the said Power of Attorney does not even remotely authorise the said Ram Raisinghani to execute any agreement to sell on behalf of the defendant. Counsel submits that the Hon'ble Supreme Court in the case of Church of Christ Charitable Trust and Educational Charitable Society v. Ponniamman Educational Trust, (2012) 8 SCC 706 has held that a Power of Attorney should be strictly construed and for executing an agreement to sell or effect a sale by a Power of Attorney, the power should also expressly authorise the donee/agent to execute the contract for sale/sale-deed i.e. (a) to present the document before the Registrar; and (b) to admit execution of the document before the Registrar. Counsel has submitted that in the context of the specific statement of law by the Hon'ble Supreme Court, it is apparent that the Power of Attorney relied upon by the plaintiff (Ex-2) was of no avail to attribute any authorisation by the defendant to the said Ram Raisinghani to execute the agreement to sell dated 30.06.1983 on his behalf. Counsel has submitted that on this count also the learned trial Court committed a gross error in holding that the agreement to sell dt, 30.06.1983 was consequent to any authorisation by the defendant. Counsel submits that consequently not only Issue No. 1 was wrongly decided against the defendant, but so also was Issue No. 2, which related to the receipt of Rs. 50,000/- purportedly on behalf of the defendant by Ram Raisinghani, who from the clear wordings of exhibit-2 was not authorised to receive any amount/consideration against the defendant's immovable property generally or specifically relating to 1-Kh-9, Vaishali Nagar, Ajmer on the basis of entering into any agreement to sell on behalf of the defendant. Counsel has submitted that in this view of the matter, Issue No. 3 with regard to the purported readiness and willingness of the plaintiff to act in accordance with the agreement to sell dated 30.06.1983 was a non-sequitur as there being no valid agreement to sell between the plaintiff and the defendant the question of the plaintiff being ready and willing to act in accordance therewith could not possibly arise. Counsel finally submits that thus the learned trial Court has completely misdirected itself on the three major issues before it and its judgment and decree is therefore liable to be quashed and set aside. 6. Mr. Counsel finally submits that thus the learned trial Court has completely misdirected itself on the three major issues before it and its judgment and decree is therefore liable to be quashed and set aside. 6. Mr. B.L. Agarwal, appearing for the plaintiff, now the respondent before this Court in this first appeal, has however supported the judgment of the learned trial Court stating that it is a well considered and detailed judgment which ought to be upheld by this Court. 7. Heard the counsel for the defendant as also the plaintiff and perused the judgment of the trial Court. 8. It is well settled by the Hon'ble Supreme Court as in the case of Church of Christ Charitable Trust (Supra) that a Power of Attorney has to be strictly construed. A bare look at Exhibit-2 i.e. power of attorney dated 29.09.1981, indicates that there is no authority conferred by the defendant on the said Ram Raisinghani to enter into any agreement to sell or execute a sale-deed in respect of any immovable property owned by the defendant in Ajmer or elsewhere. In my considered opinion, the Power of Attorney dated 29.09.1981 entailed authorisation by the defendant to the donee therein Ram Raisinghani only to appear in litigation on behalf of the defendant. It would be productive to reproduce the Power of attorney dated 29.09.1981, which is as under: "Power of Attorney" For The Property Number 1-Kh-9 At Vaishali Nagar, M.I.G. Group Scheme, Ajmer, Rajasthan, India. Know All Men By These Presents That I, Hari Pessumal Raisinghani of the 1017 Beverly Ct. of Lombard County of Dupage in the State of Illinois has made, constituted and appointed, and BY THESE PRESENTS do__make, constitute and appoint Mr. Ram Raisinghani of the 68/ivxx, Madan Gopal Road, Opposite St. Anselm College, Ajmer, India true and lawful ATTORNEY for me and in my name, place and stead to appear and act in all the Court. of Lombard County of Dupage in the State of Illinois has made, constituted and appointed, and BY THESE PRESENTS do__make, constitute and appoint Mr. Ram Raisinghani of the 68/ivxx, Madan Gopal Road, Opposite St. Anselm College, Ajmer, India true and lawful ATTORNEY for me and in my name, place and stead to appear and act in all the Court. Civil or Criminal Original or appellate, in the registration offices and in any other office and to sign and verify plaints, written statements and petition and also to present appeals in any Court to appoint and constitute on my behalf pleaders or other attorneys whenever my said attorney thinks proper to do so; to compromise cases to withdraw and receive documents or money from any Court, office or opposite party, either in execution of decrees or otherwise, and to do all the acts, that may be necessary in connection with any such cases. All acts, deeds and things lawful done by my said attorney shall be construed as acts, deeds and things done by me if I were personally present and all and whatever may said attorney shall lawful does, I, the said Hari Pessumal Raisinghani, do hereby agree to ratify & confirm giving and granting unto Mr. Ram Raisinghani said ATTORNEY full power and authority to do and perform all and every act and thing whatsoever, requisite and necessary to be done in and about the premises, as fully, to all intents and purposes, as he might or could do if personally present at the doing thereof, with full power of substitution and revocation, hereby ratifying and confirming all that_____said ATTORNEY or______substitute shall lawfully do or cause to be done by virtue hereof. In Testimony Whereof, I have hereunto set my hand and seal this 29th day of September, 1981. Signed, Sealed and Delivered in Presence of I, Janice Beeman, a notary public in and for, and residing in the said County, in the State aforesaid, DO HEREBY CERTIFY, that Hari Pessumal Raisinghani personally known to me to be the same person_____whose name__subscribed to the foregoing Instrument appeared before me this day in person, and acknowledge that__he__signed, sealed and delivered and said Instrument as his free and voluntary act, for the uses and purposes therein set forth. GIVEN under my hand and notarial___seal, this 29th day of September A.D. 1981. sd/- (Notary Public) 9. GIVEN under my hand and notarial___seal, this 29th day of September A.D. 1981. sd/- (Notary Public) 9. I do not find force in the submissions of Mr. B.L. Agarwal that the provision in the Power of Attorney (Ex-2) that "all acts, deeds, and things lawfully done by my attorney shall be construed as acts, deeds and things done by me" validates the agreement to sell dated 30.06.1983. The argument is based on emphasising a sentence in the Power of Attorney in isolation devoid of its context. In my considered opinion, the reliance on the above provision of the Power of Attorney is misplaced. Contextually construed the sentence quoted above relates to all acts, deeds and things done by the donee under the Power of Attorney dated 29.09.1981 before the Courts and equivalent forums where the donor of the Power of Attorney dated 29.09.1981 was a litigant/party. Further in any event, there is no specific empowerment under the Power of Attorney dated 29.09.1981 to dispose of the donor's immovable property. Thus in terms of pure construction and the enunciation of law by the Hon'ble Supreme Court in the case of Church of Christ Charitable Trust (Supra), Ram Raisinghani had no authority to enter into the agreement to sell dated 30.06.1983 with the plaintiff on behalf of the defendant. 10. It is thus apparent that the agreement to sell dated 30.06.1983 cannot relate to the Power of Attorney dated 29.09.1981. Aside of this fact, the plaintiff in his suit/plaint as laid before the trial Court did not advert to the Power of Attorney dated 30.06.1983 at all and instead set up a case of the agreement having been signed by the defendant himself. This was absolutely false as in fact transpired from the plaintiff's own evidence before the trial Court. In my considered view, the learned trial Court therefore wrongly held that the defendant had entered into an agreement to sell dated 30.06.1983 with the plaintiff. Issue No. 1 was therefore erroneously decided by the trial Court. The substratum of the plaintiffs case thus having fallen with this finding of this Court that there was no agreement to sell dated 30.06.1983 between the defendant and the plaintiff, the other issues arising there from struck before the trial Court have of necessity to be decided against the plaintiff. 11. The substratum of the plaintiffs case thus having fallen with this finding of this Court that there was no agreement to sell dated 30.06.1983 between the defendant and the plaintiff, the other issues arising there from struck before the trial Court have of necessity to be decided against the plaintiff. 11. Consequently, in my considered opinion, the judgment and decree dated 16.09.1995, passed by the trial Court is deserving of being set aside. 12. At this stage, Mr. B.L. Agarwal, appearing for the plaintiff, submits that in pursuance of the judgment and decree dated 16.09.1995, passed by the trial Court, an additional sum of Rs. 35,000/- has been deposited by the plaintiff with the trial Court. He prays that the plaintiff be held entitled to refund thereof from the trial Court. That would to my mind be the obvious consequence of this judgment. The result of the judgment and decree being set aside would entail the right to the plaintiff to move an appropriate application before the trial Court for the refund of the said amount of Rs. 35,000/- (Rupees Thirty-Five Thousand only) deposited in compliance with the judgment and decree dt 16.09.1995 (now set aside). 13. In the event such an application is made, the trial Court shall dispose it of in accordance with law. The civil first appeal is accordingly allowed. The judgment and decreed, passed by the trial Court is set aside.Appeal Allowed. *******