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TMI Blog2024 (5) TMI 1324X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 225) and Khasra Nos. 67/1 to 212 situated at village Khirsau, Tehsil Sihora, District Jabalpur, M.P 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. 2.1 On 22.05.1996, the appellant/plaintiff paid an additional amount of Rs. 20,000/- for which an endorsement was made on the backside of the agreement. Further amount of Rs. 40,000/- was paid on 30.06.1996 which too was endorsed on the backside of the agreement. On 26.12.1996, another agreement was executed between the appellant/plaintiff and the Power of Attorney Holder extending the execution of the sale deed till 31.03.1997, remaining terms being the same. The date was further extended to 31.05.1997 vide entry made in the subsequent agreement dated 26.12.1996. Another entry was made on 23.04.1997 mentioning that the agreement to sell shall come to an end on 31.05.1997. 2.2 However, the respondent/defendant no. 1 being the Power of Attorney Holder of r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tement filed by the respondent/defendant no. 5. 2.5 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. Since the extended time for registration of sale deed was till 31.05.1997 and the suit was to be filed on or before 30.05.2000. However, on the said date, the Court was closed for summer vacation which ended on 18.06.2000 and the suit was filed on 19.06.2000. Therefore, the suit was within limitation, having been filed on the last date of limitation. 2.6. In appeal preferred by the respondent nos. 1 to 3/defendant nos. 12 to 14, the High Court has passed the impugned judgment allowing the appeal to set aside the judgment and decree of the Trial Court consequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Attorney Holder of Defendant nos. 2 to 11, the other co-owners/coparceners of the suit property. However, the agreement itself no where states that Gajay Bahadur Bakshi has executed the agreement as Attorney Holder of Defendant nos. 2 to 11. On the contrary, it is mentioned in the agreement that Gajay Bahadur Bakshi would be responsible for getting the sale deed executed and registered by all the coowners or co-khatedars at the time of registration. Neither the names of all the co-owners/coparceners/co-khatedars are mentioned in the agreement, thus, the High Court is right in finding that all the co-owners have not signed the agreement. The subsequent endorsement of receipt of additional amount of Rs. 40,000/- is also not signed by all the co-parceners. The same is the condition with the 3rd agreement dated 26.12.1996 and the extension endorsement dated 27.03.1997 and 23.04.1997. Significantly, the so-called power of attorney pleaded in the plaint through which the defendant nos. 2 to 11 authorised defendant no. 1 to execute the agreement, have not been produced and proved in the Trial Court. Thus, neither in the agreement nor in course of trial the power of attorney is proved b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the witness box. Instead, his Power of Attorney Holder - Parmod Khare has got himself examined as PW-1. This witness was examined on 05.09.2002 and the power of attorney was executed on 26.08.2002. It is not a case where the suit itself was filed by a Power of Attorney Holder. He appeared subsequently only for recording his evidence as the Special Power of Attorney Holder of the plaintiff. The legal position as to when the deposition of a Power of Attorney Holder can be read in evidence has been dealt with by this Court in several decisions. 9. In Janki Vashdeo Bhojwani & Anr. vs. Indusind Bank Ltd. & Ors. (2005) 2 SCC 217, it is held that a Power of Attorney Holder cannot depose for principal in respect of matters of which only principal can have personal knowledge and in respect of which the principal is liable to be cross-examined. It is also held that if the principal to the suit does not appear in the witness box, a presumption would arise that the case set up by him is not correct. This Court has discussed the legal position in the following words in paras 13 to 22: "13. Order 3 Rules 1 and 2 CPC empower the holder of power of attorney to "act" on behalf of the principal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttorney holder can appear, plead and act on behalf of the party but he cannot become a witness on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in the witness box on behalf of himself. To appear in a witness box is altogether a different act. A general power-ofattorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff. 18. The aforesaid judgment was quoted with approval in the case of Ram Prasad v. Hari Narain [AIR 1998 Raj 185 : (1998) 3 Cur CC 183] . It was held that the word "acts" used in Rule 2 of Order 3 CPC does not include the act of power-ofattorney holder to appear as a witness on behalf of a party. Power-of-attorney holder of a party can appear only as a witness in his personal capacity and whatever knowledge he has about the case he can state on oath but he cannot appear as a witness on behalf of the party in the capacity of that party. If the plaintiff is unable to appear in the court, a commission for recording his evidence may be issued under the relevant provisions of CPC. 19. In the case of Pradeep Mohanbay (Dr.) v. Minguel Carlos Dias [(2000) 1 Bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... willing to perform his part of the contract and subject himself to cross-examination on that issue. A plaintiff cannot obviously examine in his place, his attorney-holder who did not have personal knowledge either of the transaction or of his readiness and willingness. Readiness and willingness refer to the state of mind and conduct of the purchaser, as also his capacity and preparedness on the other. One without the other is not sufficient. Therefore a third party who has no personal knowledge cannot give evidence about such readiness and willingness, even if he is an attorney-holder of the person concerned. 18. We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge: (a) An attorney-holder 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 attorney-holder 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs of a son/daughter living abroad." 11. In a more recent judgment of this Court in the matter of A.C. Narayanan vs. State of Maharashtra & Anr. (2014) 11 SCC 790, this Court again considered the earlier judgments, particularly, Janki Vashdeo Bhojwani (supra) and having noticed that Janki Vashdeo Bhojwani relates to Power of Attorney Holder under CPC whereas in the matter of (A.C. Narayanan) the Court was concerned with a criminal case. It was observed that since criminal law can be set in motion by anyone, even by a stranger or legal heir, a complaint under Section 138 of the Negotiable Instruments Act, 1881 preferred by the Power of Attorney Holder is held maintainable and also that such Power of Attorney Holder can depose as complainant. 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 entitle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is three years. From these two circumstances, it does not follow that any and every suit for specific performance of the agreement (which does not provide specifically that time is of the essence of the contract) should be decreed provided it is filed within the period of limitation notwithstanding the time-limits stipulated in the agreement for doing one or the other thing by one or the other party. That would amount to saying that the time-limits prescribed by the parties in the agreement have no significance or value and that they mean nothing. Would it be reasonable to say that because time is not made the essence of the contract, the time-limit(s) specified in the agreement have no relevance and can be ignored with impunity? It would also mean denying the discretion vested in the court by both Sections 10 and 20. As held by a Constitution Bench of this Court in Chand Rani v. Kamal Rani [(1993) 1 SCC 519]: (SCC p. 528, para 25).................." 15. In Azhar Sultana vs. B. Rajamani & Ors. (2009) 17 SCC 27, this Court held thus in para 28: "28. ..........The court, keeping in view the fact that it exercises a discretionary jurisdiction, would be entitled to take into consi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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