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Synopsis

The Supreme Court has said in a suit for specific performance, a power of attorney holder cannot depose for the principal for the acts done by him for it is necessary for the principal to enter to witness box, depose and subject himself to cross examination.

A bench of Justices Pankaj Mithal and Prashant Kumar Mishra said, a third party having no personal knowledge about the transaction cannot give evidence about the readiness and willingness. 

"We are of the view 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)," the bench said.

In other words, the court explained, if the power of attorney holder has rendered some ‘acts’ in pursuance of power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the act done by the principal and not by him.

Similarly, it further pointed out, he cannot depose for the principal in respect of the matter of which only the principal can have personal knowledge and in respect of which the principal is entitled to be cross-examined. 

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, the bench said.

"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. The term ‘readiness and willingness’ refers to the state of mind and conduct of the purchaser, as also his capacity and preparedness, one without the other being not sufficient. Therefore, a third party having no personal knowledge about the transaction cannot give evidence about the readiness and willingness," the bench said while upholding the judgment of the Madhya Pradesh High Court and dismissed an appeal filed by Rajesh Kumar.

The matter related to the appellant/plaintiff entering 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 admeasuring 145.60 acres, situated at village Khirsau, Tehsil Sihora, District Jabalpur, MP for sale consideration at the rate of Rs 3,000 per acre, totalling Rs 4,41,000. The appellant/plaintiff paid earnest money of Rs 41,000 on the date of agreement to sell and the balance amount was to be paid on the date of registration of the sale deed which was to be done within six months from the date of agreement. 

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 on May 14, 1997 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. The sale deed of May 14, 1997 was executed behind the back of the appellant/plaintiff which came to his notice subsequently on which a legal notice was sent on May 30, 1997. 

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. Non-examination of the appellant/plaintiff as a witness was held not having any adverse impact on plaintiff’s case. The trial court also found that the time allowed for execution of sale deed was extended twice and he had also paid earnest money, therefore, the appellant/plaintiff was ready and willing to perform his part of the contract and the suit is not barred by limitation.

The High Court, on its part, allowed the appeal and set aside the judgment and decree of the trial court consequently dismissing the appellant/plaintiff’s suit. 

The appellant contended the High Court erred in holding that power of attorney holder cannot depose in a civil suit on behalf of the plaintiff. According to him, non-appearance of the appellant/plaintiff as a witness would not have any adverse impact in a suit of this nature and that the readiness and willingness can be proved by the attorney holder. 

On the contrary, the respondents said neither in the agreement nor in course of trial the power of attorney was proved by tendering the same in evidence. Hence, the High Court rightly held that the agreement was not signed by all the co-owners. They also said agreement was void ab initio because it was not executed by all the owners of the suit land. 

In the case, the bench, however, said, "We are of the view that in the instant case, the plaintiff/appellant has failed to enter into the witness box and subject himself to cross-examination, he has not been able to prove the prerequisites 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."

The bench further pointed out 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 of May 14,1997 executed in favour of defendant nos 12 to 14 and sent a legal notice on May 30, 1997 and even objected to the subsequent purchasers’ application for mutation of their names in the revenue records on August 20, 1997 and refers to a meeting of the Gram Panchayat of December 06,1997, yet the suit was preferred, on May 09, 2000 on the last date of limitation.

Thus, the suit having been preferred after a long delay, the plaintiff is not entitled for specific performance on this ground also, the court held.