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Bombay High Court

Santosh Nathu Vaidya And Anor vs Namdeo Adkuji Budde And 4 Ors
on 4 April, 2016
Equivalent citations: AIR 2016 (NOC) 584 (BOM), AIR 2016 (NOC) 584 (BOM.) (NAGPUR
BENCH), 2016 (4) ABR 321, (2017) 2 ALLMR 340 (BOM)
1 sa60.07.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH AT NAGPUR
 SECOND APPEAL NO.60/2007

1. Santosh s/o Nathu Vaidya,

aged about 65 years, Occ. Cultivator,
r/o Narsala, Tq. Dist. Nagpur.

2. Sureseh s/o Santosh Khante,

aged about 40 years, occ. Business,
r/o Juna Subhedar Layout, Nagpur. .....APPELLANTS

ig ...V E R S U S...

1. Namdeo s/o Adkuji Budde,

aged about 50 years, Occ. Cultivator,

r/o Tajbag Nagar, nagpur.

2. Umraoji s/o Keshaoraoji Dhole

(Deleted as per Court's Order

dated 27.02.2007)

3. Eknathiji s/o Champatrao Darode,

aged 40 years, Occ. Service,
r/o Omkar Nagar, Nagpur.

4. Hasan Ali s/o Khurshidali,

aged about 45 years, Occ. Cultivator,
r/o Tajbag, Nagpur.

5. Kailas s/o Bhakaru Lute,

aged about 40 years, Occ. Cultivator,

r/o Tajbag, Umred Road, Nagpur. ...RESPONDENTS

-------------------------------------------------------------------------------------------
Mr. J. M. Gandhi, Advocate for appellants.
Mr. S. R. Narnaware, Advocate for respondent nos. 1, 3 and 4.
-------------------------------------------------------------------------------------------

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2 sa60.07.odt

CORAM:- A. B. CHAUDHARI, J.
Date of Reserving the Judgment : 01.04.2016
 Date of Pronouncing the Judgment : 04.04.2016

J U D G M E N T

1. Being aggrieved by judgment and decree dated 02.01.2007 in Regular Civil Appeal No.300/2001 passed by
Ad hoc District Judge 10, Nagpur by which the judgment and decree dated 13.02.2001 in Regular Civil Suit
No.214/1989 dismissing the suit filed by respondents-plaintiffs was set aside and the decree for specific
performance of contract etc. was made, the present second appeal was filed by the unsuccessful defendants.

FACTS:

2. the respondents-plaintiffs, through their power of attorney holder by name Dhairyasheel,

instituted Special Civil Suit No.214/1989 for specific performance of contract against the
defendant no.1-Santosh Vaidya. Defendant no.2-Kailash Lute was in fact the proposed vendee in
the agreement who was joined as defendant because of his absence. The case of respondents-

plaintiffs was that defendant no.1-Santosh Vaidya was the owner of field survey No.32, 1.57 HR at mouza
Hudkeshwar and he entered into an agreement on 07.04.1986 in favour of the plaintiff ::: Uploaded on -
07/04/2016 ::: Downloaded on - 29/07/2016 20:55:48 ::: 3 sa60.07.odt and defendant no.2 for the sale thereof at
the rate of Rs.40,500/-

per Acre and all the proposed vendees paid an amount of Rs.10,000/- as earnest amount to him. It was also
agreed that defendant no.1 will execute the sale deed within 1 ½ years from the date of the agreement and
remaining consideration would be paid accordingly at the time of registration of the sale deed. It was agreed
that in case there was any legal impediment in getting the sale deed registered, further time of 1 ½ years
would be extended.

It was then stated in the plaint that the defendant no.2 thereafter paid additional amount of Rs.10,000/- to
defendant no.1-Vendor on the tenth day from the date of agreement. Thereafter, they were insisting on the
defendant no.1 to execute and register the sale deed by completing all the legal formalities namely; to obtain
necessary no objections from the Urban Land Ceiling authorities, town planning and other competent
authorities which are required to be placed before the Registrar for registration. But the defendant no.1 did
not respond and for want of no objection from those authorities, it was not possible to register the sale deed.
The plaintiff and defendant no.2 were throughout ready and willing to get the sale deed registered and pay
the remaining consideration to defendant no.1. But it could not be done due to lapse on the ::: Uploaded on -
07/04/2016 ::: Downloaded on - 29/07/2016 20:55:48 ::: 4 sa60.07.odt part of defendant no.1 and he was
careless and negligent in getting the no objections from the Government authorities for preparation of
necessary documents. The defendant no.1 having not complied with the obtaining of permissions and no
objections from the authorities, was not entitled to cancel the agreement nor could do so since the
agreement itself provided for extension by another 1 ½ year. The plaintiffs and defendant no.2 again
informed defendant no.1 that they were ready and willing to get the sale deed registered and then
defendant no.1 also realised his mistake of not obtaining the necessary documents of no objections etc and
agreed to make compliance. However, defendant no.1 still did not produce no objections from the
competent authority or clearance from Urban Land Ceiling authorities, town planning authorities and,
therefore, the registered notice dated 03.03.1989 was issued to him to attend Sub Registrar's office on
13.03.1989 but he did not turn up and, therefore, had no alternative but to file suit for specific performance
of contract thereafter. Accordingly, suit was filed for decree of specific performance of contract and in the
alternative for refund of money on 27.03.1989. The suit was dismissed for want of prosecution on 21.01.1994
and was again restored by detailed order on 19.11.1997. thereafter, it was set ::: Uploaded on - 07/04/2016 :::
Downloaded on - 29/07/2016 20:55:48 ::: 5 sa60.07.odt down for trial. The power of attorney holder of
respondent-

plaintiff PW1-Dhairyasheel (PW1) was examined on their behalf while the appellants-defendants examined
PW1-Santosh and defendant no.3 PW2-Suresh the subsequent purchaser who purchased the suit property
on 14.09.1989 and 31.01.1994 i.e. after the suit was lodged in the Court. The trial Judge thereafter dismissed
the suit. The respondents filed appeal before the District Judge who, as stated earlier, allowed appeal and
decreed the suit. Hence, this appeal.

SUBMISSIONS:

3. Mr. Gandhi, learned counsel for the appellants assailed the impugned judgment and order
passed by the lower appellate Court and submitted that the suit as filed by plaintiffs through
power of attorney holder holder was not maintainable because initially with the suit photocopy
of the power of attorney was filed and thereafter attested power of attorney Exh.-99 was filed but
the photocopy was not attested though original Exh.-99 was attested at later point of time. The
power of attorney who did not have any personal knowledge about Exh.-39-agreement, was
examined as the only witness for the plaintiffs and, therefore, his evidence ::: Uploaded on -
07/04/2016 ::: Downloaded on - 29/07/2016 20:55:48 :::

6 sa60.07.odt was totally inadmissible and of no assistance to the plaintiffs as a result the same was liable to
be ignored in entirety. Though the power of attorney exhibited, its contents were not proved and by mere
exhibition, the document cannot be read in evidence.

Defendant no.2-Kailash Lute was also the proposed vendee in the agreement Exh.-39, but he was added as
defendant no.2. He did not turn up in the court and, therefore, it could easily be inferred that all the
proposed vendees were not ready and willing to perform their part of contract. The evidence of power of
attorney holder would be hearsay evidence, he having no knowledge about the transaction.

4. The agreement of sale Exh.-39 was not the original document of agreement of sale and photocopy was
exhibited upon which the objection was taken but it was overruled by the trial Judge, which is wrong. In the
absence of original document of agreement, the Court could not have placed reliance thereon. The
agreement was required to be registered as it was stated therein that the possession was delivered on the
date of agreement and in the absence of document being registered or impounded, the agreement was not
legal, valid and such suit based thereon was ::: Uploaded on - 07/04/2016 ::: Downloaded on - 29/07/2016
20:55:48 ::: 7 sa60.07.odt liable to be dismissed.

5. The appellant-defendant no.1 had, by notice dated 14.10.1989, cancelled the agreement and in the absence
of any challenge to the cancellation, the suit was not maintainable and was liable to be dismissed. The
attempt of the plaintiffs to show that they were ready and willing to perform their part of contract through
documents Exh.95, 95A and 96 was wholly misconceived as from the conduct of the power of attorney
holder it could be easily inferred that the plaintiffs were not ready and willing nor had they proved that
they were ready and willing to perform their part of contract. The aforesaid letters were forged and
fabricated in order to show that they were ready and willing to perform their part of contract and the
appellate Court should have rejected those letters. The certificates Under Postal Certificate are also
tampered.

Looking at Exh.-97 and 98, there was reason to believe that the conduct of the plaintiffs was not clean and it
is well settled that when the conduct of the plaintiffs is not clean, the Court should not exercise the
discretion of granting specific performance of contract.

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8 sa60.07.odt

6. The suit was filed after 2 ½ years. Therefore, the discretion to decree the suit could not have been
exercised in favour of the plaintiffs. The appellant-defendant no.1 had executed the sale deed in respect of
the suit property in entirety by two sale deeds dated 14.09.1989 and 31.01.1994 in favour of defendant no.3-
Suresh, who had thereafter, sold the plots to the others and, therefore, for specific performance of contract
on the basis of agreement in question the decree could not have been passed additionally because the suit
was dismissed and was not in existence from 27.01.1994 till 19.11.1997. The legal effect should have been
considered by the trial Court in respect of the subsequent sale deeds in favour of defendant no.3-Suresh and
consequently ought to have declined to grant the specific performance.
7. Inviting my attention to Civil Application No.271/2016 under Order XLI Rule 27 of the Code of Civil
Procedure along with the documents therein, he contended that this additional evidence should be
permitted to be taken on record as the sale deeds of the plots sold to various persons were not filed on
record through inadvertence but the interest of justice should not suffer and, ::: Uploaded on - 07/04/2016 :::
Downloaded on - 29/07/2016 20:55:48 ::: 9 sa60.07.odt therefore, these sale deeds should be taken on record
which would be necessary for adjudication. The learned counsel for the appellants cited following
judgments and prayed for reversal of the judgment of the lower appellate Court.

1. Man Kaur.vs.Hartar singh; 2011 (1) SCC (SRJ) 197.

2. S. Kesari.vs.Anjum Jehan; 2013 (3) ALL M.R. (SC) 916.

3. A. C. Narayan..vs..State of Maharashtra & Anr.;

2013 ALL MR (Cri) 4048 (SC).

4. Janki Vashdeo Bhojwani and anr.vs.Indusind Bank Ltd. & ors;

AIR 2005 SC 439.

5. Church of Christ..vs..Ponniamman Educational Trust;

(2012) 8 SCC 706.

6. Varsha Maheshwari..vs..Bhushan; 2011 (3) Mh. L.J. 666.

7. Gajanan..vs..Sakhubai; 2012 (4) Mh.L.J.470.

8. S.R.Ahmad ..vs.. Alima Begum; 2009 (6) ALL. MR 86

9. Omprakash..vs..Laxminarayan; 2013 (6) ALL MR 941

10. Bhupendra..vs..Leelabai; 2010 (5) Mh.L.J. 390.

11. Arjun ..vs.. Rama; 2014 (2) Mh. L. J. 390.

12. Janak Dulari Devi ..vs.. Kapil Deo; 2011 (6) SCC 555.

13. A. C. Arulappan..vs..Ahalya Naik; AIR 2001 SCC 2783.

14. Ramkumar..vs..Thawar Das; (1999) 7 SCC 303.

15. Ajaib Singh..vs..Tulsidevi; (2000) 6 SCC 566.

16. Lourdu Mari ..vs..Loui's; AIR 1996 SC 2814.

17. Union of India ..vs..Ibrahim Uddin; (2002) 8 SCC 148.

18. Citadel..vs..Ramaniyam; (2011) 9 SCC 147.

19. I.S.Sikander..vs.. Ksubramani; (2013) 15 SCC 27.

20. K. S.Vidyanadam ..vs..Vairavan; 1997 (2) Mh.L.J.642.

::: Uploaded on - 07/04/2016 ::: Downloaded on - 29/07/2016 20:55:48 :::

10 sa60.07.odt

21. Tejram..vs..Patirambhau; AIR 1997 SC 2702.

22. Life Insurance Corporation..vs.. Rampal; (2010) 4 SCC 491.

23. Tukaram..vs..Manikrao; (2010) 4 SCC 329.

8. Per contra, Mr. Narnaware, learned counsel for the respondents-plaintiffs, supported the judgment of the
lower appellate Court and submitted that the lower appellate Court rightly granted the decree for specific
performance of contract and at any rate, admittedly, the agreement in favour of the respondents made by
defendant no.1 was never in dispute. The agreement was exhibited by the trial Judge on the basis of
admission in the written statement as defendant no.1 categorically admitted the agreement in question.
According to him, it is well settled legal position that admission is the best piece of evidence and admission
in the written statement can be acted upon. Insofar as the objections about the power of attorney and his
evidence is concerned, the learned counsel argued that all the points are raised by the learned counsel for
the appellant before this Court for the first time and were never put to the power of attorney holder in the
cross-examination nor pleaded in the written statement and, therefore, they cannot be considered. Inviting
my attention to the proviso to Rule 14 of Order VI of the Code of Civil ::: Uploaded on - 07/04/2016 :::
Downloaded on - 29/07/2016 20:55:48 ::: 11 sa60.07.odt Procedure, the learned Counsel for the respondent
contended that the power of attorney holder is the person authorised by the plaintiffs, about which there is
no dispute and none of the plaintiffs or defendant no.2 have at all disputed the authority given by them to
the power of attorney holder and, therefore, it was not legal and proper for the appellants to dispute about
giving of the authority to the person authorised namely power of attorney holder PW1-Dhairyasheel.
Learned counsel for the respondent then contended that, it is admitted position that the agreement with the
respondents is prior in point of time of later sale deeds in favour of defendant no.3. After the institution of
the suit, the sale deeds were executed in favour of defendant no.3- Suresh. In reply to the application under
Order XLI Rule 27, he contended that he has filed the reply to the application and obviously all those
transactions shown in the sale deeds filed along with the application are hit by the doctrine of lis pendens.
Finally, learned counsel for the respondents prayed for dismissal of the appeal as according to him, no
question of law muchless substantial question of law arises in the present appeal.

::: Uploaded on - 07/04/2016 ::: Downloaded on - 29/07/2016 20:55:48 :::

12 sa60.07.odt CONSIDERATION:

9. I have heard learned counsel for the rival parties at length. I have also perused the entire
record, documentary as well as oral. I have perused the reasons recorded by the Courts below.

This Court had, at the time of admission on 27.02.2007, framed three substantial questions of law, which are
as under with my answers:

(1) whether the Power of Attorney holder for the proposed vendees could validly depose about
the existence of readiness and willingness on the part of the plaintiff/proposed vendees to
perform their part of the contract when this fact could have been within the special knowledge of
the plaintiffs themselves? ...Yes.

(2) Whether the appellate Court was justified in reversing the judgment of the trial Court and
granting a decree for specific performance in favour of the plaintiffs when one of the proposed
vendees who had executed the agreement of sale was not joined as a party to the appeal and the
aforesaid fact clearly reflected that he was not ready and willing to get the sale deed executed in
his favour? ...Yes.

(3) Whether the agreement of sale could be specifically enforced in a case where the vendees
were more than one and some of them were not ready and willing to get the agreement
specifically enforced?

...Yes.

::: Uploaded on - 07/04/2016 ::: Downloaded on - 29/07/2016 20:55:48 :::

13 sa60.07.odt The learned trial Judge had framed the following issues in the suit numbering 10.

1. Does the plaintiff prove that the defendant no.1 put plaintiffs and defendant no.2 in actual possession of
suit property? ...No.

2. Do the plaintiffs prove that the plaintiffs and defendant no.2 were and are ready and willing to perform
the part of contract as alleged? ...No.
3. Do they further prove that defendant No.1 has committed breach of contract? ...No.

4. Do they further prove that they are entitled to specific performance of contract as alleged? ...No.

5. Do the plaintiffs alternatively prove that they are entitled for refund of earnest money and charges tot eh
extent of Rs.1,20,000/- as alleged? ...No.

6. Does the defendant no.1 and 2 prove that the time is essence of contract? ...Yes.

7. Is suit bad for misjoinder of the parties as alleged?

...Yes.

8. Is suit within limitation? ...-

9. Does defendant no.3 prove that he is entitled to the compensatory cost of rs.5,000/- as alleged? ...No.

10. what order & decree? ...As per final order.

The learned lower appellate Court had framed the following points for determination numbering 9.

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14 sa60.07.odt

1. Whether the time was essence of contract?

...No.

2. Whether the appellants proved that they and respondent no.2 were put in physical possession of the suit
field? ...Yes.

3. Whether they were ready and willing to perform their part of contract? ...Yes.

4. Whether the respondent no.1 committed breach of contract?

ig ...Yes.

5. Whether the appellants are entitled to Specific performance of Contract? ...Yes.

6. In the alternative whether they are entitled to refund of earnest amount and damages?

...Does not survive.

7. Whether the suit was bad for misjoinder of parties?

...No.

8. Whether the judgment of the trial Court needs any interference? ...Yes.

9. Order? ...As per final order.

10. Taking up first the Civil Application No.277/2016 under Order XLI Rule 27 for additional evidence for
decision, I find upon reading of the said application in entirety so also the reply that, the appellants want to
bring on record the subsequent ::: Uploaded on - 07/04/2016 ::: Downloaded on - 29/07/2016 20:55:48 ::: 15
sa60.07.odt sale deeds in respect of the alleged plots sold by appellant no.2- defendant no.3 during the period
from April-1994 to January-

1995 and 7/12 extract in the name of appellnat no.2 so also order of conversion dated 11.08.2015 passed by
Sub Divisional Officer from agricultural to non agriculture purpose. In my opinion, all these documents of
sale deeds executed by appellant no.2 are obviously during the pendency of the suit before the trial Judge
and after filing of the suit and, therefore, alike the appellant no.2- defendant no.3, who purchased the suit
property after filing of the suit these additional documents showing sales of plots by sale deeds are clearly
governed by the principles of lis pendens. In other words, all the sale deeds placed on record by appellant
no.2 as additional evidence are in the nature of extension of the sale deeds obtained by appellant no.2,
which is also covered by the principles of lis pendens. All such documents of sale deeds covered by the lis
pendens cannot become the additional evidence for the purpose of adjudicating the real dispute between
the parties in relation to the suit. Needless to repeat that the principles of lis pendens would govern the
issue. Therefore, the application for additional evidence cannot be entertained. That apart, all these
documents are registered sale deeds, which were ::: Uploaded on - 07/04/2016 ::: Downloaded on - 29/07/2016
20:55:48 ::: 16 sa60.07.odt very much available that too to the full knowledge of the appellant no.2 since he
himself was the executent of the sale deeds and particularly when his evidence was recorded on 24.01.2001,
he could have easily produced all the registered sale deeds. At any rate, the said additional evidence is of no
consequence and does not help any party to the dispute in the light of law of the lis pendens. Civil
Application No.277/2016 is, therefore, rejected.

Answer to Question No.1:

11. Now coming to the controversy in the suit and the submissions made before me, the argument
made by the learned counsel for the appellant on the point of power of attorney holder and his
evidence, it will have be necessary to have a look at Order VI Rule 14 of the Code of Civil
Procedure which reads thus:

"Order VI: Pleadings generally:

14. Pleading to be signed.- Every pleading shall be signed by the party and his pleader (if any):

Provided that where a party pleading is, by reason of absence or for other good cause, unable to
sign the pleading, it may be signed by any person duly authorized by him to sign the same or to
sue or defend on his behalf."

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17 sa60.07.odt

12. The aforesaid proviso to Rule 14 categorically shows that a person authorised is entitled to file and
prosecute the suit till its disposal. In the instant case, it is not in dispute that the plaintiffs had authorised
Dhairyasheel (PW1) to act as their power of attorney holder for signing of various documents, prosecuting
and contesting the litigations etc. It is not at all disputed by any of the plaintiffs or defendant no.2. None of
he plaintiffs or defendant no.2 have stated that they have not authorised Dhairyasheel (PW1) the power of
attorney holder. Insofar as the aspect of attestation at a later point of time after execution of the power of
attorney is concerned, I do not think any significance can be given to it since none of the persons giving
authority have disputed the authority of the power of attorney holder either orally or in writing to plead
and prosecute their lis. In the light of the above provision, therefore, it is not possible to accept the
submissions about the incompetence of power of attorney. The counsel for the appellant then argued that
the power of attorney holder had no personal knowledge about the execution of agreement and, therefore,
his evidence is worthless and should not have been relied upon by the appellate Judge. In this context, I
have perused the pleadings as well as entire evidence of Dhairyasheel (PW1) ::: Uploaded on - 07/04/2016 :::
Downloaded on - 29/07/2016 20:55:48 ::: 18 sa60.07.odt and the cross-examination. In the examination-in-
chief, the power of attorney holder deposed about the entire transaction in question, readiness and
willingness, details about the agreement, payments made and so on and so forth, which clearly shows his
personal knowledge about the transaction in question and the filing of the litigation i.e. the suit in question.
If according to the appellants, he had no personal knowledge about the transaction, there ought to have
been appropriate pleadings in the written statement and appropriate cross-examination to him to bring out
from his mouth that he did not have any personal knowledge about the transaction. However, it is
significant to note that not only that there is no cross-examination on that point but there is no even a single
suggestion to him that he does not know anything about the transaction and that he was not a witness to
depose on behalf of the plaintiffs or the proposed vendees. In the absence of appropriate pleadings and the
cross-examination, it would be difficult to accept such a submission. Secondly, the submissions that his
evidence was hearsay evidence, again will have to be rejected as he deposed about the whole transaction.
There is further submission that the contents of the power of attorney were not proved by the power of
attorney holder and the answer ::: Uploaded on - 07/04/2016 ::: Downloaded on - 29/07/2016 20:55:48 ::: 19
sa60.07.odt obviously would be that Dhairyasheel (PW1) deposed about details or the power of attorney in
his favour which was also exhibited and there is no cross-examination that he was not authorised by the
plaintiffs and defendant no.2 nor the plaintiffs and defendant no.2 disputed his authority to act on their
behalf.

As to his evidence before the Court, in this context the learned counsel for the appellants vehemently relied
on some judgments about the evidence of power of attorney holder, numbering 1 to 7 is in the list of
reliance. I have carefully gone through all these decisions. The first decision was rendered in the case of
Janki Bhojwani (supra). In that case, the apex Court specifically found on facts that the power of attorney
holder did not have personal knowledge about the matters of the appellants and, therefore, he could not
depose about his personal knowledge of the matter of the appellants and therefore he could neither depose
on his personal knowledge nor could be cross-examined on those facts which were to the personal
knowledge of the principal. As stated earlier, there is no even remote suggestion or pleading anywhere or
admission in the evidence about want of personal knowledge.

On the contrary, Dhairyasheel (PW1) deposed on his personal knowledge about each and every details of the
transaction which ::: Uploaded on - 07/04/2016 ::: Downloaded on - 29/07/2016 20:55:48 ::: 20 sa60.07.odt was
not challenged. Hence, such matters cannot be resolved by merely raising questions but there has to be
foundation in pleadings as well as evidence which is absent in the present case.

The existence of readiness and willingness on the part of the plaintiffs or the proposed vendees to perform
their part of contract has, in fact, been deposed by Dhairyasheel (PW1) the power of attorney holder of the
plaintiffs. It is significant to note that upon careful reading of the examination-in-chief and the cross-

examination of this witness Dhairyasheel (PW1) for the plaintiffs, it is seen that he categorically deposed in
paragraph 4 of his evidence as under:

"4. ...The plaintiffs repeatedly requested the defendant no.1 to execute the Sale Deed but as the
defendant no.1 failed to obtain the necessary documents from the different authority, the Sale
deed could not be executed.

On 14.10.1987 the defendant no.1 issued the notice to plaintiffs and defendant no.2. By this notice
the defendant no.1 alleged that the suit agreement was cancelled by him. The plaintiffs had duly
replied to this notice. The office copy of the reply notice is placed on record vide Exhibit-94. The
postal acknowledgment is at Exhibit-95. By this reply notice, the vendees had called upon to
defendant no.1 to attend Sub Registrar's office on 13.3.1989 for execution of the Sale Deed. We
waited for him up to 4.00 p.m. However, the defendant no.1 ::: Uploaded on - 07/04/2016 :::
Downloaded on - 29/07/2016 20:55:48 :::

21 sa60.07.odt did not attend the Registrar's office on that day. Hence, the vendees were constrained to file
he present suit. The defendant no.1 was many times requested both orally and in writing to execute the Sale
Deed. The vendees were all the while and are still ready and willing to perform their part of contract and to
get the Sale Deed executed. In the present suit the plaintiffs have claimed the decree for specific
Performance of contract."

13. The cross-examination of this witness if carefully seen, shows that this evidence in paragraph 4 has not
even been touched in the cross-examination muchless shattered. Not only that there is no even suggestion to
this witness that the plaintiffs were not ready and willing or that the plaintiff and defendant no.2 were not
ready and willing to perform their part of contract.

Further, perusal of the evidence of two witnesses of the defendant namely; appellant nos. 1 and 2, does not
even show a semblance of evidence that there was no readiness and willingness on the part of the plaintiffs
and defendant no.2. It clearly appears from the entire record that power of attorney holder had full
personal knowledge about the entire transaction and that plaintiffs and defendant no.2 were ready and
willing to perform their part of contract. In the wake of the above factual position in this case, all :::
Uploaded on - 07/04/2016 ::: Downloaded on - 29/07/2016 20:55:48 ::: 22 sa60.07.odt the judgments on this
point cited by learned counsel for the appellant from Serial No.1 to 4, which are on their facts are, not
applicable in the present case.
The question no.1, therefore, will have to be answered in the affirmative that the power of attorney holder
could validly depose about the readiness and willingness.

As to Question No.2:

14. Vide order dated 27.02.2007 on Civil Application No. 1253/2007, the appellants themselves at
their risk deleted respondent no.2 (one of the vendees) from the array of parties to this appeal. I
find that in the absence of respondent no.2 (one of the vendees), the question cannot be raised by
the appellants.

Even otherwise, grant of decree for specific performance of contract in favour of five vendees together
would not and cannot be affected, if one of the proposed vendees is not a party to the appeal before the
District Judge. The rights of all the plaintiffs, but for one, to ask for specific performance of contract merely
because one of the proposed vendees is not a party, cannot be denied. It is not in dispute that all the vendees
were party to the suit. The other vendees would be entitled to execute the decree in ::: Uploaded on -
07/04/2016 ::: Downloaded on - 29/07/2016 20:55:48 ::: 23 sa60.07.odt their favour. That apart, the learned
counsel for the appellants did not raise any arguments on question no.2 but since the question was framed,
the same is being answered by me.

In view of above, the question no.2 will have to be answered in the affirmative.

As to Question No.3:

15. Learned counsel for the appellants then argued that respondent had failed to prove their
readiness and willingness and that the documents Exh.-95, 95A etc. were forged and fabricated
documents. It was also contended that the document of agreement dated 07.04.1986 Exh.-39 was
not the original document brought on record. In this connection, it would be appropriate to quote
following portion from the evidence of Dhairyasheel (PW1) :

"The deft.No.1 had agreed to obtain all necessary no objection certificates and permission. The
sale deed was to be executed within 1 ½ years after procuring all the documents. It was also
agreed between the parties that if any legal impediment was there in the execution of sale deed,
the period would be extended further by 1 ½ years. The xerox copy of the agreement of sale is
placed on record. (The learned counsel for the defts. Raised ::: Uploaded on - 07/04/2016 :::
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24 sa60.07.odt objection with regard to exhibiting the document and making it admissible in evidence. The
learned counsel for the plffs. Drew my attention to the admission in respect of execution of document
appearing in para 2 of the W.S. Exh.19. Thus in view of this admission appearing in the W.S. the objection is
overruled). The xerox copy of agreement of sale is marked as Exh.93. (As admitted)."

16. It is clear from the above that the photocopy of the agreement of sale was exhibited with the clear
admission in the written statement made by contesting defendant no.1. In view of the above admission, I do
not think that the document Exh.-39 could not be read in evidence as it is well settled legal position that the
admission is the best piece of evidence and can be acted upon. The above order overruling the objection is
legal, correct and proper.

17. Insofar as readiness and willingness is concerned, I have seen the pleadings in the plaint so also
testimony of Dhairyasheel (PW1). There are clear pleadings about readiness and willingness by the
proposed vendees to perform their part of the contract so also the evidence which can be seen from :::
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deposition and as earlier stated there is absolutely no cross-examination on the readiness and willingness of
the plaintiffs. It is, therefore, wrong to say that the plaintiff had not discharged their burden to prove
readiness and willingness since there is categorical pleading and evidence both. I have then perused the
documents Exh.-95, 95A, 96, 97 and 98. Perusal of these documents, to my mind, takes one nowhere. The
letter under postal certificate addressed to the defendants even if ignored, the case of the plaintiffs does not
get anyway shattered since independently the plaintiffs proved their readiness and willingness by
appropriate pleadings and evidence as held by me above and it went unchallenged before the trial Judge. It
is then seen that defendant no.2-Kailash was added as party to the suit for which reasons were given in
paragraph 10 of the suit namely that the defendant no.2 was not available at the time of filing of the suit
and, therefore, he could not be joined as plaintiff to the suit but since he was necessary party to the suit, he
was joined as defendant no.2 and liberty was reserved to apply for transposition, if necessary, in future.
That apart, it is not the case of the appellants that the plaintiffs were never ready and willing to perform
their part of his contract or that none of the plaintiffs had ::: Uploaded on - 07/04/2016 ::: Downloaded on -
29/07/2016 20:55:48 ::: 26 sa60.07.odt ready money to pay balance consideration for obtaining the same.

There is no cross-examination, not even suggestion the plaintiffs did not have money to make payment of
balance consideration or that they were not ready and willing. These are the aspects which are required to
be pleaded and brought in the cross-examination but unfortunately as stated earlier, there is absolutely no
cross-

examination on this points and, therefore, it could not be said that merely because one vendee was added as
defendant, the agreement of sale could not be enforced. It is not even the case of the appellants that some of
the proposed vendees were not ready and willing to get the agreement specifically enforced for which there
ought to have been some pleading and evidence, which is totally absent in the present case. Therefore,
question no.3 will have to be answered in the affirmative.

18. The learned counsel for the appellants then submitted that the agreement was cancelled by Exh.-102
dated 14.01.1987 and the suit was, therefore, not maintainable. I have carefully seen the memos of appeal
before the lower appellate Court as well as the Court. This ground has not been even remotely raised.

Counsel for the appellant has raised this ground for the first time ::: Uploaded on - 07/04/2016 ::: Downloaded
on - 29/07/2016 20:55:48 ::: 27 sa60.07.odt that too during arguments. I think, the counsel cannot be allowed
to raise this question. He relied on the decision in the case of I. S. Sikander. (supra) In this context, I have
perused the entire pleadings of the appellants and I find that in the written statements, there is no objection
raised that the suit was not maintainable because of the alleged cancellation. I have carefully gone through
the issues farmed and I do not find that a single issue about cancellation of agreement was framed in the
suit by the trial Judge. I have also carefully seen the points of determination framed by the lower appellate
Court and I find that no such point for determination was at all farmed nor it was argued nor was decided
by the lower appellate Court. The substantial questions of law framed by this Court also do not show any
such question. Be that as it may. Even otherwise, I find that recitals in the agreement Exh.-39 clearly show
that it was for defendant no.1 to obtain all no objections for registration of the sale deed from various
authorities and admittedly he had not obtained those even at the time of issuing Exh.-102. Admittedly the
agreement Exh.-39 itself provided that in the eventuality of not obtaining document of no objections, the
period would be extended by another 1 ½ years. The suit was duly filed within the ::: Uploaded on -
07/04/2016 ::: Downloaded on - 29/07/2016 20:55:48 ::: 28 sa60.07.odt limitation of three years. Therefore, in
the wake of clause for extension of time by 1 ½ years in the agreement itself, the Court is bound to ignore
the cancellation under Exh.-102 being ineffective and of no consequence. The judgment in the case of I. S.
Sikander is, therefore, not applicable in view of the facts of the case and as per the discussion made above.

19. Learned counsel for the appellant then argued that the suit was instituted after 2 ½ years and sales to
defendatn no.3 and in turn to various persons were already made and, therefore, the discretionary relief of
specific performance should not have been granted. He cited decision on this point. However, I find that the
right of the plaintiff to obtain specific performance of contract within the period of limitation cannot be
defeated and at any rate sale deeds obtained by appellant no.2 were obtained after institution of the suit
filed in the Court so also the sale deeds of the plots executed by him even without obtaining conversion
order from the concerned Sub Divisional Officer as it was admittedly obtained in the year 2015 for the first
time. The appellant no.2 thus committed all sorts of illegalities. The principles of lis pendens would,
therefore, clearly take care of the situation. To ::: Uploaded on - 07/04/2016 ::: Downloaded on - 29/07/2016
20:55:48 ::: 29 sa60.07.odt deny the discretionary relief of specific performance of contract to the plaintiffs
though they had approached the court within the prescribed time would work out injustice to the plaintiffs.
The appellant no.2, in fact, misconducted himself by purchasing the suit property after filing of the suit and,
thereafter, went on selling spree. The submission is, therefore, unacceptable. The learned counsel for the
appellants contended that the plaintiffs claimed to be in possession of the suit property and, therefore, the
agreement Exh.-39 was inadmissible in evidence for want of registration thereof. Perusal of the record
shows no such issue or point for determination was at all framed nor such objection was raised.

That apart, there is a clear recital in Exh.-39 that after measurement by Patwari, the possession of the suit
field will be given. Not only that, both the Courts have concurrently held that the possession was never
delivered to the plaintiffs but appellants were in possession. Hence, no registration was necessary. The
submission, therefore, will have to be rejected.

19. In the result, I find no merit in the appeal. Hence, I make the following order.

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30 sa60.07.odt

ORDER

(i) Second Appeal No. 60/2007 is dismissed.

(ii) No order as to costs.

JUDGE

kahale

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