Specific Relief Act, 1963 – s. 12 – Specific performance of part of contract – Deposition of a power of attorney holder, when can be read in evidence – On facts, the appellant entered into an agreement to sell with power of attorney holder for purchase of land for a sale consideration – Appellant paid earnest money on the date of agreement to sell and the balance amount was to be paid on the date of registration of the sale deed – Time for execution of the sale deed extended – However, the power of attorney holder executed the sale deed of the suit land in favour of respondents even though they were aware of the earlier sale agreement and its extensions – Sale deed executed behind the back of the appellant – Subsequently, on coming to know of the same, the appellant sent notice – Thereafter, suit filed and the trial court decreed in favour of the appellant – However, set aside by the High Court – Correctness:
Held: In view of s. 12, 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) – 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 cross-examined – It is necessary for the plaintiff to step into the witness box and depose that he was always ready and willing to perform his part of the contract and subject himself to cross-examination on that issue – 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 – On facts, the plaintiff failed to appear in the witness box and subject himself to cross-examination, he has not been able to prove the pre-requisites of s. 12 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 – Instead, the power of attorney holder got himself examined – It is not a case where the suit itself was filed by power of attorney holder – He appeared subsequently only for recording his evidence as the special power of attorney holder of the plaintiff – 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 respondents – Suit was preferred, on the last date of limitation, after a long delay – Thus, the appellant not entitled for specific performance – Judgment and decree passed by the High Court upheld. [Paras 6, 8, 12, 13, 18, 19]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Nidhi Jain. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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