In a specific performance suit where the plaintiff is required to prove that he has performed essential terms of contract, Power of Attorney Holder cannot depose in his place: Supreme Court explains Sec 12 of Specific Relief Act
Justices Pankaj Mithal & Prasanna B. Varale [17-05-2024]

Read Order: RAJESH KUMAR v. ANAND KUMAR & ORS [SC- CIVIL APPEAL NO. 7840 OF 2023] 

Tulip Kanth

New Delhi, May 23, 2024: In a land dispute case where the plaintiff/appellant didn’t enter the witness box and also failed to prove the pre-requisites of Section 12 of the Specific Relief Act,1963, the Supreme Court has dismissed his appeal while upholding the order of the Madhya Pradesh High Court.

The facts of the case were such that the appellant/plaintiff entered into an agreement to sell with respondent no. 4 (acting as Power of Attorney holder of respondents/defendant nos. 2 to 11) for purchase of land located in MP’s District Jabalpur, M.P for sale consideration at the rate of Rs. 3,000/- per acre, totalling Rs. 4,41,000/-. However, the respondent/defendant no. 1 being the Power of Attorney Holder of respondents/defendant nos. 2 to 11 executed the sale deed of the suit land in favour of respondent nos. 1 to 3/defendant nos. 12 to 14 even though the said respondents were aware of the earlier sale agreement and its extensions.

 

It was the case of the appellant/plaintiff that he is in possession of the suit land, therefore, he objected to the application moved by the respondents/defendant nos. 12 to 14 for mutation of their names. The Gram Panchayat assured the appellant/plaintiff that defendant nos. 12 to 14 will execute a sale deed in favour of the appellant/plaintiff, therefore, legal action was not initiated. The present suit was filed on 19.06.2000. 

The respondents/defendants in joint written statement averred that the suit land is in possession of the respondent nos. 1 to 3/defendant nos. 12 to 14 being the bona fide purchasers for value paid vide registered sale deed.The Trial Court decreed the suit upon finding that the agreement to sell has been executed between the appellant/plaintiff and defendant no. 1 as a Power of Attorney Holder of defendant nos. 2 to 11. In appeal preferred by the respondent nos. 1 to 3/defendant nos. 12 to 14, the High Court passed the impugned judgment allowing the appeal to set aside the decree of the Trial Court consequently dismissing the appellant/plaintiff’s suit. Hence the appeal was filed before the Top Court.

Having noticed the three judgments of this Court in Janki Vashdeo Bhojwani & Anr. vs. Indusind Bank Ltd. & Ors [LQ/SC/2004/1376]; Man Kaur vs. Hartar Singh Sangha[LQ/SC/2010/1072]; A.C. Narayanan vs. State of Maharashtra & Anr. [LQ/SC/2013/1031], the Bench opined that in view of Section 12 of the Specific Relief Act, 1963, in a suit for specific performance wherein the plaintiff is required to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract, a Power of Attorney Holder is not entitled to depose in place and instead of the plaintiff (principal). It was further explained by the Bench that if a plaintiff, in a suit for specific performance is required to prove that he was always ready and willing to perform his part of the contract, it is necessary for him to step into the witness box and depose the said fact and subject himself to cross-examination on that issue. 

A plaintiff cannot examine in his place, his attorney holder who did not have personal knowledge either of the transaction or of his readiness and willingness. Therefore, a third party having no personal knowledge about the transaction cannot give evidence about the readiness and willingness.

In light of such aspects, the Bench held that the plaintiff/appellant failed to enter into the witness box and subject himself to cross-examination and he had not been able to prove the pre- requisites of Section 12 of the Specific Relief Act,1963 and more so, when the original agreement contained a definite time for registration of sale deed which was later on extended but the suit was filed on the last date of limitation calculated on the basis of the last extended time.

 In the case in hand, the plaintiff entered into an agreement with only one of the co-owners and thereafter sought extensions for execution of the sale deed but did not prefer any suit though he was aware of the sale deed executed in favour of defendant nos. 12 to 14. The plaintiff sent a legal notice on 30.05.1997 and even objected to the subsequent purchasers' application for mutation of their names in the revenue records on 20.08.1997 and referred to a meeting of the Gram Panchayat. Yet the suit was preferred, on 09.05.2000 on the last date of limitation. Thus, on the strength of observations made by this Court in K.S. Vidyanadam vs. Vairavan [LQ/SC/1997/221] and  Azhar Sultana vs. B. Rajamani & Ors. [LQ/SC/2009/367], the suit having been preferred after a long delay, the Bench held that the plaintiff is not entitled for specific performance on this ground also.

Thus, upholding the judgment of the High Court, the Bench dismissed the appeal.