Alok Bhushan Vs Sri Arujun Kumar Prasad

IN THE HIGH COURT OF JHARKHAND AT RANCHI

S.A. No. 130 of 2020

Alok Bhushan, aged about 28 years, son of Sri Rajendra Kumar Sinha, resident of Sudamdih River Side Washery Colony, P.O. & P.S.- Sudamdih, District Dhanbad

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… … Plaintiff/Respondent/Appellant

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-Versus-

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Sri Arjun Kumar Prasad, son of Late Badri Mahato, resident of Barmasia, P.S.- Dhansar, P.O. & District- Dhanbad

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… … Defendant/Appellant/Respondent

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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Appellant : Mrs. J. Mazumdar, Advocate For the Respondents :

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08 /07.01.2025 Heard the learned counsel appearing on behalf of the

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appellant.

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2. This second appeal has been filed against the judgment and decree dated 20.02.2020 (decree signed on 27.02.2020) passed by the learned District & Additional Sessions Judge-XI, Dhanbad in Civil Appeal No.115 of 2018 in terms of which the learned First Appellate Court has been pleased to allow the appeal preferred by the defendant (respondent herein) and has been further pleased to set aside the judgment and decree dated 20.04.2018 (decree signed on 04.05.2018) passed by the learned Additional Civil Judge (Junior Division) – XIII, Dhanbad in Title Suit No.79 of 2006 whereby the suit filed by the plaintiff (appellant herein) was decreed.

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3. The learned counsel for the appellant submits that the impugned judgment passed by the learned First Appellate Court is a judgment of reversal. She submitted that the learned First Appellate Court has primarily rested its judgment on the ground that the plaintiff never deposed before the court as a witness and instead a power of attorney had appeared as witness before the court. She has referred to Order III, Rule 1 of CPC to submit that instead of the plaintiff, his power of attorney could have deposed as witness and therefore the impugned judgment of reversal calls for interference.

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4. The learned counsel for the Appellant has also submitted that being the plaintiff in a case of specific performance of contract, it was for the plaintiff to plead and prove the case before the Court and in the instant case, the plaintiff had paid the entire consideration amount in connection with the property involved in the present case, and therefore, there was no legal impediment in examination of the power of attorney of the plaintiff. She further submitted that it was the case of the defendant that he had refunded an amount of Rs.45,000/through cheque and balance by cash, but the defendant did not prove this aspect of the matter.

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5. After hearing the learned counsel for the Appellant and going through the impugned judgment passed by the learned appellate court, this Court finds that the suit was filed by the plaintiff namely Alok Bhushan for specific performance of contract and get a registered sale deed executed in his favour with respect to the property described in the schedule to the plaint. A prayer was made for passing appropriate order directing the defendant to do all the acts necessary to put the plaintiff in full possession of the scheduled property and further relief.

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6. It was the case of the plaintiff that the plaintiff was in need of a piece of land and the defendant approached the plaintiff and offered to sell the suit property and both the parties entered into an agreement of sale dated 25.04.2005 which was reduced into writing and the entire consideration amount of Rs.53,622/- was paid to the defendant on the very same date. As per the condition of the agreement, sale deed was to be executed by the defendant within four months in favour of the plaintiff.

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7. It was further case of the plaintiff that he had already performed his part and was still ready and willing to get the sale deed in respect to the suit property and it was upon the defendant to fulfill his part for executing and registering the sale deed in favour of the plaintiff. The plaintiff made several requests, but the defendant deferred the matter on one or the other pretext; the plaintiff issued lawyer’s notice requesting the defendant to execute and register the sale deed in favour of the plaintiff. The breach of agreement to sale entered

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between the parties could not be compensated in terms of money and the plaintiff was still ready and willing to perform all acts, deeds and things that may be required for execution and registration of the sale deed in respect to the suit property as per the agreement dated 25.04.2005. The cause of action for the suit arose four months after the date of agreement i.e. on 25.08.2005 and further cause of action arose after service of 2^nd notice arising out of breach of contract.

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8. The defendant, on notice, had appeared and filed his written statement and opposed the suit. It was contended that the suit was barred under the provision of Specific Relief Act and barred by limitation. It was asserted that the market value of the suit was more than Rs.53,622/- and no amount was received by the defendant for any agreement. However, the defendant asserted that he had received an amount of Rs.45,000/- as loan and had put his signature on two stamp papers and two blank papers and he had put his signatures on the papers, but he had returned the said amount partly by cheque and partly by cash. It was his further case that there was no agreement prepared between the parties and that the plaintiff had practised fraud and had not come to the court with clean hands. It was asserted that the plaintiff was not entitled to any relief.

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9. On the basis of the pleadings of the parties, the learned trial court framed six issues for consideration which are as follows:

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(i) Is the suit as framed maintainable?

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(ii) Has the plaintiff valid cause of action for the suit?

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(iii) Is the suit barred by limitation?

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(iv) Whether the contract for sale dt. 25.04.2005 with respect to schedule land in favour of the plaintiff is still subsisting?

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(v) Whether the defendant is bound to execute and register the sale deed with respect to Schedule land in favour of the plaintiff when he has already received the entire consideration money?

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(vi) To what relief/reliefs is the plaintiff entitled?”

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10. The plaintiff examined four witnesses, but plaintiff himself did not appear as a witness. The learned trial court considered the Issue Nos. (iv) and (v) together and after scrutinizing the materials came to a finding in Paragraph-13 that the agreement dated 25.04.2005 is valid

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one and was still subsisting and the defendant was bound to execute and register the sale deed with respect to the suit land in favour of the plaintiff and the plaintiff has proved his readiness and willingness. The learned trial court decided the Issue Nos. (iv) and (v) in favour of the plaintiff. Paragraph-13 of the trial court judgment reads as under:

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“ 13. The expression readiness and willingness cannot be treated as straight-jacket formula and has to be determined from totality of the facts and circumstances of the case. The plaintiff has proved through witnesses as well as documents that he has performed his part as stipulated in agreement dated 25.04.2005 and he has shown his readiness and willingness, but defendant despite receiving such notice did not come forward to discharge his obligation. Therefore, I find and hold that agreement dated 25.04.2005 is valid one and is still subsisting and the defendant is bound to execute and register the sale deed with respect to Schedule land in favour of the plaintiff. The plaintiff has proved his readiness and willingness. Accordingly, these two issues are decided in favour of plaintiff.”

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11. The learned trial court also decided the issue of limitation and other issues i.e. Issue Nos. (I), (II), III) and (VI) in favour of the plaintiff on contest at Paragraph-15 and directed the defendant to execute and register sale deed in respect of the scheduled land as per the terms and conditions of the sale.

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Paragraph-15 of the trial court judgment reads as under:

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“ 15. So far the relief claimed by the plaintiff is concerned, Section 10(B) of the Specific Relief Act envisages that specific performance of any contract may in discretion of the court be enforced, when the act agreed to be done is such that compensation in money for its non-performance would not afford adequate relief and in its explanation, it has been mentioned that unless and until the contrary is proved, the court shall presume that a breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money. So the plaintiff in the present case is ready to perform his part and the breach of contract by the defendant cannot relieve him adequately by awarding compensation to plaintiff. Further as per Art. 54 of Limitation Act, the period of limitation for filling a suit for specific performance is three years from the date fixed for the performance, or if no such date is fixed, when the plaintiff has noticed that performance is refused. The cause of action has arisen to the plaintiff after defendant refused to execute sale

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deed within four months after the date of agreement i.e. 25.08.2005 and also cause of action arisen to the plaintiff to sue the defendant when plaintiff given the first legal notice after expiry of 15 days’ time and as such, the suit filed by the plaintiff is to be well within the limitation provisions and as such, defendant contention that suit of the plaintiff is barred by limitation is not acceptable plea and accordingly, it is answered in negative defendant. Further, the plaintiff is entitled for the reliefs claimed. Thus, I find that plaintiff has valid cause of action and present suit is maintainable. Accordingly, plaintiff is entitled to ger the relief. Hence, these four issues are decided in favour of plaintiff.”

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12. The defendant filed an appeal and the learned First Appellate Court framed the following points for determination:

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(I) Whether holder of power of attorney can depose for the principal?

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(II) Whether the defendant/appellant entered into the agreement to sell dated 25.04.2005 to sell the suit land described in detail in the schedule to the plaint as alleged?

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(III) Whether the plaintiff/respondent has always been ready and willing to perform his part of the agreement dated 25.04.2005?

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(IV) Whether the suit of the plaintiff/respondent is false and frivolous to the knowledge of the plaintiff/respondent and whether the plaintiff/respondent has concealed the true and material facts from the court?

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(V) Whether there is any defect in the judgment and decree of the trial court?”

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13. The learned Appellate Court recorded that both the parties i.e. the original plaintiff and the defendant were known to each other and had good relations and considered the Point No.(I) as to whether the holder of power of attorney can depose on behalf of the principal in Paragraph-17 of the Appellate Court judgment. The learned Appellate Court recorded that PW-3, Rajendra Kumar Sinha, who was the father of the plaintiff, had appeared and deposed before the Court on the basis of power of attorney executed by the plaintiff. The learned Appellate Court recorded the following finding:

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“ 17. ……………….. It is made clear that here the case of the plaintiff is that he entered into an agreement for sell of suit property with the defendant. In my view, the agreement to sell is a personal agreement. I further perused the alleged agreement

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dated 25.04.2005 and find that P.W.3, Rajendra Kumar Sinha, who is father of the plaintiff had not put his signature upon the alleged agreement as a marginal witness or attesting witness. Absence of his signature upon the alleged agreement, it presumed that he had no personal knowledge about the alleged agreement to sell. As per Order 3, Rule 1 and 2, C.P.C., a power of attorney holder can appear, apply or act in any court, but such act cannot be extended to depose in the witness box. Power of attorney holder is not acting as a witness on behalf of the principal, but he can only represent the principal himself. Deposing in a witness box and being cross-examined is a personal act and cannot be done through an agent/ power of attorney holder. In the present case, it appears that suit for specific performance of contract has been filed by Alok Bhushan in whose favour the alleged agreement to sell was executed, but it is crystal clear that Alok Bhushan did not come forward before the court as a witness of the suit. However, in course of proceeding before the lower court, a special power of attorney has been submitted on behalf of the plaintiff by which the plaintiff empowered his father, Rajendra Kumar Sinha for act on his behalf. Here it is made clear that the alleged special power of attorney has not been marked exhibit in this matter by the lower court. I further find that on the basis of alleged power of attorney, the plaintiff's father Rajendra Kumar Sinha came before the court and stepped into the witness box as P.W.3 and gave his evidence in this matter. Now coming to evidence of P.W.2, Mihir Lal who claimed himself as an attesting witness of the agreement. This person has deposed in para-8 of his evidence by which he has stated that he reached at the house of plaintiff, Alok Bhushan where both the parties of the agreement were present and the agreement to sell was executed at the house of plaintiff where he and Prabodh Singh (one of the attesting witness P.W.1) were present except this nobody was present at that relevant point of time. Upon perusal of this evidence, it is crystal clear that when the agreement to sell dated 25.04.2005 was executed between plaintiff and defendant where the father of the plaintiff, Rajendra Kumar Sinha (P.W.3) was not present there. I find that being attesting witness of the agreement to sell this person did not support the fact that at the time of executing the agreement, the P.W.3 was present there. In my mind, the power of attorney holder does not have personal knowledge of the alleged matter of the plaintiff and therefore he can neither depose on his personal knowledge nor can he be cross-examined on those facts which are to the personal knowledge of the principal. Thus, it is crystal clear that the power of attorney holder has no power to depose in this matter on behalf of the plaintiff.”

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14. The learned Appellate Court ultimately held that the power of attorney holder does not have personal knowledge of the matter of the plaintiff and therefore, the power of attorney could neither depose on his personal knowledge, nor could he be cross-examined on those facts, which are to the personal knowledge of the principal, and held that power of attorney holder had no power to depose in the matter.

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15. The learned Appellate Court also recorded that when the agreement to sale dated 25.04.2005 was executed between the plaintiff and the defendant, the father of the plaintiff Rajendra Kumar Sinha P.W.3 was not present and also recorded that the attesting witnesses to the agreement to sale did not support the fact that at the time of executing the agreement, P.W.3 was present.

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16. While deciding the Point No. (II), the learned Appellate Court considered the materials on record and recorded at Paragraph-19 that the plaintiff did not come forward before the court as plaintiff witness to prove the fact that he had put his signature upon the agreement dated 25.04.2005. The findings with regard to determination of point No. (II) are as follows:

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“ 19. ……….. In the present case, I find that the plaintiff, Alok Bhushan did not come forward before the court as a plaintiff witness to prove the fact that he put his signatures upon the agreement dated 25.04.2005. Thus, I find that the plaintiff failed to discharge his initial burden that he put his signatures upon the deed of agreement to sell dated 25.04.2005 and both the attesting witnesses put their signatures in his presence. Here, it is important to mention that the defendant witnesses came before the court and pointed out that there is no agreement to sell was executed by the defendant / appellant alleged to be plaintiff / respondent. Thus, the plaintiff/respondent failed to prove the fact that an agreement to sell dated 25.04.2005 was executed between the parties and the same was valid, legal and genuine document.”

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17. With respect to determination of Point Nos. (III) and (IV), the learned Appellate Court recorded the following findings:

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“20. …………… On this point, I perused plaint and find that the plaintiff, Alok Bhushan himself instituted the suit for specific performance of contract against the defendant. I further find that in the light of Order VI Rule 14 of C.P.C., the plaintiff himself

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signed and verified the plaint. Thus, it is crystal clear that the suit for specific performance was not instituted by the power of attorney holder of the plaintiff. I further find that the plaintiff has filed Vakalatnama with his signature and he appointed Sri R.K. Lala and others as Advocates. The alleged situation clearly shows that on the basis of averment and pleading of the plaintiff, the plaint was made and constructed by his learned lawyers and it was instituted before the court of law.

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In this point, the P.W.3, Rajendra Kumar Sinha, who is father of the plaintiff, is material witness. This person has only stated that he was appointed by the plaintiff, who is his son, to sign and verify the petitions and engage any legal practitioner to conduct the case and receive and file any document before the court of law. However, this witness did not allege any word why the plaintiff did not come forward before the court to give his evidence with respect to material facts of the matter. This witness did not give any explanation why the plaintiff did not turn up before the court as a witness. While it was open to the parties to adduce proper reasons for the non-examination of the plaintiff, but on the facts and circumstances of the particular case, no reasons have been adduced and hence adverse inference drawn against the plaintiff. It is also equally true that the relationship of father and son to the mandatory requirement under section 16 (c) of the Act. It would be open to and also the duty of the plaintiff to plead and prove the reasons for the nonexamination of the plaintiff, but the non-examination of the plaintiff was not explained in this court on behalf of the plaintiff side. In my view the failure to examine the plaintiff, who is son of PW.3, would amount to non-compliance of the requirements under section 16 (c) of the Act. ….

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Upon perusal of the record, it appears that the plaintiff after lodging the case against the defendant, advocate notice was sent to Arjun Kumar Prasad (defendant) first time on 24.05.2006 through registered post and again pleaded that further second notice was sent upon the defendant on 25.06.2006. However, here it is made clear that on behalf of the plaintiff, only one postal registered slip has been submitted, thus, the version of the plaintiff that the legal notice upon the defendant sent two times is not correct. I further find that there is no case of the plaintiff that after sending the notice for executing the sale-deed, he present before the Sub-Registrar Office, Dhanbad. Thus, the version of the plaintiff that he is/was ready to perform his part of the contract is totally false.

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I further find that the contract of the agreement to sell dated 25.04.2005 stated to have been executed by the defendant, Arjun Kumar Prasad evinced that the plaintiff/respondent gave

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entire consideration amount Rs.53,622/- to the defendant / appellant at the time of executing the alleged agreement to sell. However, it is surprised to me that after giving and receiving the entire consideration money why the contract of the agreement to sell of the suit property was executed in place of sale-deed. In my mind, if the entire consideration money has to be given by the plaintiff to the defendant certainly, in place of execution of the agreement to sell paper, a sale-deed with respect to suit property should have been executed while it was not to do so. The alleged circumstances projected that on behalf the plaintiff, some material facts were suppressed and the conduct of the plaintiff is doubtful because he did not come before the court to depose the fact that in place of execution of sale-deed as to why the contract of the agreement to sell was to be executed in between the parties. In my view, if the plaintiff comes before the court and depose the same, it was cross-examined on this point. Therefore, the conduct of the plaintiff shows that any how the plaintiff desire to suppress the real fact.

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Apart from this, I find that the defendant/appellant had set up his defence that he received loan of Rs.45,000/- from the plaintiff/respondent and by taking advantage of the same, the plaintiff had obtained his signature upon two stamp papers and two blank papers, so as to facilitate the sanctioning of the alleged loan, but the plaintiff had used such stamp papers and papers to forge and fabricate the alleged agreement to sell dated 25.04.2005. Now coming to proceed on this point and noticed the signatures of Alok Bhushan (plaintiff) upon the agreement to sell dated 25.04.2005 and special power of attorney alleged to be executed by the plaintiff in his father's favour Rajendra Kumar Sinha dated 27.12.2006. I find that the handwriting of the Alok Bhushan (plaintiff) upon agreement to sell dated 25.04.2005 and the handwriting present in the special power of attorney deed of Alok Bhushan (Plaintiff) has no similarities. Therefore, the disputed signatures of Alok Bhushan, who is the plaintiff before the Ld. Lower Court, upon the agreement to sell dated 25.04.2005 and in the power of attorney document were not that of the said agreement to sell. On the other word, the signatures of Alok Bhushan in the agreement to sell deed and signatures of Alok Bhushan upon the power of attorney deed are different. There is no similarities. Here it is made clear that Section 73 of the Indian Evidence Act has empowered the court that even the court to its satisfaction may compare one signature or handwriting with the other appearing on the record. Thus, I further find that the plaintiff did not come forward before the court to prove the fact that he put his signatures on the agreement to sell as well as signatures upon the power of attorney. Thus, I find that the plaintiff/respondent has concealed

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the true and material facts from the court. I further find that the plaintiff has also suppressed some material facts and attempted the grab the suit schedule property and dragged the defendant to the court of law. I further find that the conduct of the plaintiff / respondent projected that he failed to prove readiness and willingness to perform his part of the agreement.”

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18. The learned appellate court also recorded that the handwriting of the plaintiff upon the agreement to sale dated 25.04.2005 and his handwriting in the power of attorney had no similarities.

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19. The learned appellate court considered that the decree passed by the learned trial court was not based on proper appreciation of law and facts and it cannot be allowed to stand. The learned appellate court held that the learned trial court had not considered the issue that the plaintiff did not come before the court as witness in the suit of specific performance of contract as per the requirement of Section 16(c) of the Specific Relief Act and ultimately set aside the judgment and decree passed by the learned Trial Court and allowed the appeal.

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20. This Court has gone through the impugned judgment and is of the considered view that the learned Appellate Court has rightly taken a view that the power of attorney could not have deposed on behalf of the plaintiff, who had initially filed the suit inasmuch as the plaintiff was required to be examined and cross-examined with respect to other aspects of the matter dealing with the specific performance of the contract and there was also a dispute regarding payment of consideration amount as the defendant claimed that the amount was paid as loan and was also refunded and further the power of attorney was not marked as exhibit and also that the learned appellate court found that the signature of the plaintiff in the power of attorney and the agreement had no similarities. The appellate court recorded that there were many aspects of the matter which were based on the personal knowledge of the plaintiff but he did not appear personally as witness and his father appeared as witness without any explanation for not deposing before the court and the provisions of section 16(c) were not satisfied.

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21. The law is well settled that a power of attorney who did not have personal knowledge either of the transaction or of the readiness and willingness of the plaintiff, cannot depose on behalf of the plaintiff in the matter of specific performance of contract with respect to personal knowledge of the plaintiff in respect to which the plaintiff is required to be cross examined. The learned counsel for the appellant has also not pointed out any perversity in the impugned judgement in the matter of consideration of materials on record and the specific argument is that the entire consideration amount having been paid, there was no legal impediment in examination of power of attorney in place of the plaintiff. In the judgement passed by the Hon’ble Supreme Court in Civil Appeal no. 7840 of 2023 dated 17^th of May 2024 (Rajesh Kumar -versus- Anand Kumar and others) reported in 2024 SCC OnLine SC 981 , it has been held by referring to the earlier judgements passed in the cases of Janki Vashdeo Bhojwani -vsIndusind Bank Ltd. (2005) 2 SCC 217, Man Kaur -vs- Hartar Singh Sangha (2010) 10 SCC 512 and A.C. Narayanan -vs- State of Maharashtra (2014) 11 SCC 790 that a power of attorney who did not have personal knowledge either of the transaction or of the readiness and willingness of the plaintiff, cannot depose on behalf of the plaintiff in the matter of specific performance of contract. Paragraph 12 of the aforesaid judgement is quoted as under: -

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"12. Having noticed the three judgments of this Court in Janki Vashdeo Bhojwani (supra), Man Kaur (supra) & A.C. Narayanan (supra) , 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). In other words, 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, 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 crossexamined. If a plaintiff, in a suit for specific performance is

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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 crossexamination 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. 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."

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22. This Court finds that the impugned judgment passed by the learned appellate court is a well-reasoned judgment considering every aspect of the matter. This Court also finds that the appellate court has decided the appeal within the contours of settled position of law in the matter of examination of power of attorney instead of the plaintiff in particular reference of specific performance of contract of sale. No question of law much less any substantial question of law arises for consideration in this case in this second appeal. Accordingly, this appeal is hereby dismissed.

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(Anubha Rawat Choudhary, J.)

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Saurav/

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Alok Bhushan v. Sri Arujun Kumar Prasad

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Alok Bhushan v. Sri Arujun Kumar Prasad

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