Case Note & Summary
The appellant, original defendant No.2, challenged the concurrent findings of the trial court and the appellate court which decreed a suit for specific performance in favour of respondent No.1, the original plaintiff. The dispute pertained to an agreement dated 25.08.2001 between respondent No.1 and respondent No.2 for sale of plot No.100, Sheet No.82D. Respondent No.1 paid Rs.20,000 as earnest money out of the total consideration of Rs.70,000, with the sale deed to be executed by 24.02.2002. Respondent No.1 claimed he was ready and willing, issued a notice, and appeared before the Registrar, but respondent No.2 did not appear. Respondent No.2 admitted the agreement and receipt of earnest money but alleged that respondent No.1 lost interest upon learning that the appellant was in possession. The appellant claimed possession under an agreement dated 04.03.2002 executed by respondent No.2. The suit was decreed by the trial court directing respondent No.2 to execute the sale deed and the appellant to hand over vacant possession. The appellate court confirmed the decree. In the second appeal, two substantial questions of law were framed: whether the plaintiff’s failure to enter the witness box and reliance on his father’s evidence as power of attorney holder was fatal, and whether the courts below correctly appreciated evidence on readiness and willingness. The High Court, after hearing both sides, held that the father, who accompanied the plaintiff on the date of agreement, had personal knowledge of the transaction and the plaintiff’s financial capacity. Relying on the principles summarized in Man Kaur (Dead) by LRs v. Hartar Singh Sangha, the court found that the attorney holder’s evidence was sufficient to prove readiness and willingness. The court also noted that respondent No.2 admitted the agreement and earnest payment. Consequently, the High Court found no reason to interfere with the concurrent findings of fact and dismissed the appeal, confirming the decree of specific performance.
Headnote
A) Evidence - Power of Attorney Holder - Personal Knowledge - Code of Civil Procedure, 1908 - Suit for specific performance - Plaintiff did not enter witness box but his father, who held power of attorney and was present at execution of agreement, deposed - Father had personal knowledge of material facts and plaintiff's financial capacity - Held that evidence of attorney holder was not fatal to suit; such evidence could be relied upon to prove readiness and willingness (Paras 9, 11).
B) Specific Performance - Readiness and Willingness - Section 16(c) of Specific Relief Act, 1963 - Plaintiff's readiness and willingness to perform contract - Plaintiff issued notice and appeared before Registrar, father testified about financial arrangements - Courts below concurrently found readiness and willingness proved - High Court held that no interference warranted in second appeal as findings were based on proper appreciation of evidence (Paras 10, 11).
Issue of Consideration
Whether the failure of the plaintiff to enter the witness box and evidence given by his Power of Attorney holder (father) was fatal to his suit for specific performance; Whether the Courts below correctly appreciated the evidence on record and the law while holding that the plaintiff had proved his readiness and willingness
Final Decision
Appeal dismissed; concurrent findings of courts below upheld; no interference in second appeal; decree of specific performance and possession confirmed.
Law Points
- Power of attorney holder can depose on matters within personal knowledge
- Readiness and willingness must be proved by person having personal knowledge
- Concurrent findings of fact not interfered in second appeal under Section 100 CPC
Case Details
2018 LawText (BOM) (04) 166
Second Appeal (SA) No. 450 of 2017
Shri S.S. Alaspurkar for appellant; Shri A.M. Sudame for respondent No.1
Tousif Ahmed s/o Abdul Aaheman
Ferozkhan s/o Sarfarzkhan; Smt. Saraswatibai w/o Ambadas Roy (since deleted, legal heir Smt. Jyoti Ashok Roy brought on record)
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Nature of Litigation
Suit for specific performance of agreement to sell and perpetual injunction, later amended for possession.
Remedy Sought
Respondent No.1 (plaintiff) sought specific performance of agreement dated 25.08.2001, perpetual injunction, and possession of suit plot.
Filing Reason
Respondent No.1 claimed that he entered into an agreement with respondent No.2 for purchase of plot No.100, paid Rs.20,000 earnest money, but respondent No.2 failed to execute the sale deed despite notice and his readiness to pay balance consideration.
Previous Decisions
Trial court decreed the suit in favour of respondent No.1, directing specific performance and possession. Appellate court dismissed the appeal and confirmed the decree.
Issues
Whether the failure on the part of the respondent No.1 (plaintiff) to enter the witness box and evidence given by his Power of Attorney holder (father) was fatal to his maintaining the suit for specific performance of agreement dated 25.08.2001?
Whether the Courts below had correctly appreciated the evidence on record as also position of law while holding that the respondent No.1 (plaintiff) had proved his readiness and willingness in the present case while granting decree in his favour?
Submissions/Arguments
Appellant argued that plaintiff's failure to depose personally was fatal; the power of attorney holder could not prove readiness and willingness; mere notice and oral claim of readiness insufficient without documentary proof of funds.
Respondent No.1 argued that father had personal knowledge of the transaction as he accompanied plaintiff on date of agreement; Advocate Korde corroborated; father could depose on readiness due to personal knowledge; pleadings and evidence sufficient; reliance on Man Kaur and A. Kanthamani.
Appellant relied on judgments including Ganesh Dassji, Umabai, I.S. Sikandar, Kalawati, and Janki Vashdeo Bhojwani to contend that evidence of attorney holder was insufficient and readiness not proved.
Respondent No.1 relied on Section 16(c) of Specific Relief Act and Appendix A of CPC to show that pleadings and material on record met legal requirements for proving readiness.
Ratio Decidendi
Where a power of attorney holder has personal knowledge of the material facts of the transaction and the plaintiff's financial capacity, such holder's evidence can be relied upon to prove readiness and willingness in a suit for specific performance. The failure of the plaintiff to enter the witness box is not fatal if the attorney holder's evidence sufficiently establishes the essential requirements under Section 16(c) of the Specific Relief Act, 1963. Concurrent findings of fact based on proper appreciation of evidence should not be disturbed in second appeal under Section 100 of CPC.
Judgment Excerpts
Whether the failure on the part of the respondent No.1 (plaintiff) to enter the witness box and evidence given by his Power of Attorney holder (father) was fatal to his maintaining the suit for specific performance of agreement dated 25.08.2001 ?
Whether the Courts below had correctly appreciated the evidence on record as also position of law while holding that the respondent No.1 (plaintiff) had proved his readiness and willingness in the present case while granting decree in his favour ?
We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge: (a) An attorneyholder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit. (b) If the attorneyholder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorneyholder alone has personal knowledge of such acts and transactions and not the principal, the attorney holder shall be examined, if those acts and transactions have to be proved. (c) The attorney holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge. (d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorneyholder...
It has come on record that when this transaction took place on the said date, father of respondent No.1 had accompanied him to the place where respondent No.2 was residing. The tenor of the oral evidence given by the father of respondent No.1 shows that he had personal knowledge of important facts pertaining to the aforesaid agreement dated 25.08.2001 and that his deposition was also based on personal knowledge of such facts.
Procedural History
Regular Civil Suit No. 83 of 2002 filed by respondent No.1 before Civil Judge, Junior Division, Amravati; trial court decreed the suit directing specific performance and possession; Regular Civil Appeal No. 87 of 2009 filed by appellant before District Judge, Amravati; appellate court dismissed appeal confirming trial court decree; Second Appeal No. 450 of 2017 filed by appellant before High Court of Bombay, Nagpur Bench.
Acts & Sections
- Specific Relief Act, 1963: Section 16(c)
- Code of Civil Procedure, 1908: Section 100, Appendix A
