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2021 DIGILAW 929 (KAR)

GURAPPA v. BASAVARAJ

2021-11-08

HEMANT CHANDANGOUDAR

body2021
JUDGMENT : Hemant Chandangoudar, J. 1. This appeal under sec. 100 of the Code of Civil Procedure is filed against the judgment and decree dtd. 29/7/2008 passed by the Additional Civil Judge (Sr.Dn) Gadag in R.A.No. 46/2004 reversing the judgment and decree dtd. 27/8/2003 passed by the Civil Judge (Jr.Dn) and JMFC, Laxmeshwar in O.S.No. 147/1992. 2. Parties are referred as per their ranks before the trial court for the sake of convenience. 3. The defendant is in appeal. Plaintiff filed a suit for specific performance of agreement of sale dtd. 13/12/1989. The plaint averments in brief are that the defendant, who is the owner of the suit property, executed agreement of sale in favour of the plaintiff agreeing to sell the suit property for total sale consideration of Rs.30,000.00 and out of the same, Rs.21,000.00 was paid as an advance sale consideration, the receipt of which was duly acknowledged by the defendant. It was further contended that though the plaintiff was ready and willing to perform his part of contract to get the registered sale deed executed by paying balance sale consideration amount of Rs.9,000.00 to the defendant, the defendant was not ready to perform his part of contract to execute registered sale deed in favour of the plaintiff by receiving the balance sale consideration. Hence, the suit. 4. The defendant filed written statement denying the execution of agreement of sale in favour of the plaintiff and also denied that there was any financial constraint on the part of the defendant so as to sell the suit property to the plaintiff. It was further contended that the defendant has not received a sum of Rs.21,000.00 towards advance sale consideration. It was further contended that the plaintiff is an Excise Contractor and he supplied liquor to the defendant as and when required and he had paid some amount to the defendant towards supply of alcohol. Hence, sought for dismissal of the suit. 5. The trial court on the basis of the pleadings of the parties, framed issues and recorded evidence of the parties. The plaintiff in order to prove his case, examined his GPA holder as PW1 and two other witnesses as PW2 and PW3 and marked documents as per Ex.P1 to Ex.P17. The defendant, to substantiate his claim examined DW1 and marked Ex.D1. The plaintiff in order to prove his case, examined his GPA holder as PW1 and two other witnesses as PW2 and PW3 and marked documents as per Ex.P1 to Ex.P17. The defendant, to substantiate his claim examined DW1 and marked Ex.D1. The trial court after examining the evidence on record, recorded a finding that the plaintiff has failed to prove that the defendant had executed an agreement of sale in his favour, but however directed to refund Rs.21,000.00 with interest at the rate of 6% per annum to the plaintiff in view of categorical admission of defendant that the plaintiff has paid certain amount to him when he was under the influence of intoxication. Taking exception to the same, defendant filed regular appeal before the first appellate court. 6. The first appellate court, after re-appreciating the evidence on record, reversed the finding recorded by the trial court by holding that the plaintiff has proved the execution of agreement of sale in his favour by the defendant and further decreed the suit for specific performance. Being aggrieved, the plaintiff is in appeal. 7. Learned counsel for appellant submits that the first appellate court was not justified in accepting the evidence tendered by PW1, who is GPA holder of the plaintiff and who has not participated in the alleged transaction and in the absence of personal knowledge of the transaction, the evidence tendered by PW1 cannot be looked into. He further submitted that the plaintiff has not proved execution of agreement of sale as per mandate contained under sec. 61 of the Indian Evidence Act. He further submitted that the plaintiff has not proved that he was always ready and willing to perform his part of contract. However, the first appellate court ignoring these material aspects, has passed impugned judgment and decree which is not sustainable in law and same requires to be set aside. 8. On the other hand, learned counsel for the defendant submitted that the first appellate court after re-appreciating the evidence on record in a proper perspective has passed the impugned judgment and decree and the same is perfectly legal and does not warrant any interference. 9. I have considered the submissions made by the learned counsel for parties and perused the material on record. 10. 9. I have considered the submissions made by the learned counsel for parties and perused the material on record. 10. The question of law that arises for consideration in this appeal is: "Whether the first appellate court was justified in decreeing the suit for specific performance on the basis of the evidence tendered by the GPA Holder of the plaintiff, who had no personal knowledge of the transaction?" 11. The plaintiff filed a suit for specific performance of agreement of sale dtd. 13/12/1989. Though he filed the suit, he executed power of attorney in favour of PW1 to tender evidence on his behalf. The GPA holder was examined as PW1 and in the cross-examination, he has specifically stated that he has not participated in the transaction nor he has any personal knowledge of the transaction or dealings of the plaintiff and defendant. The trial court considering these aspects, held that the plaintiff has failed to prove that the defendant executed agreement of sale in his favour. However, the first appellate court without considering this aspect, reversed the finding recorded by the trial court and decreed the suit. 12. The Hon'ble Apex Court in the case of Man Kaur vs. Hartar Singh Sangha, (2010) 10 SCC 512 has summarized for convenience, the position as to who should give evidence in regard to matters involving personal knowledge. "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 the attorney-holder alone has personal knowledge of such acts and transactions and not the principal, the attorney holder shall be examined, if those acts and transactions have to be proved. (c) The attorney-holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge. (c) The attorney-holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge. (d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by attorney-holder, necessarily the attorney-holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authroised managers/attorney-holder or persons residing abroad managing their affairs through their attorney-holders. (e) where the entire transaction has been conducted through a particular attorney-holder, the principal has to examine that attorney-holder to prove the transaction, and not a different or subsequent attorney-holder. (f) Where different attorney-holders had dealt with the matter at different stages of the transaction, if evidence has to be led as to what transpired at those different stages, all the attorney-holders will have to be examined. (g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his "state of mind" or "conduct", normally the person concerned alone has to give evidence and not an attorney-holder. A landlord who seeks eviction of his tenant, on the ground of his "bona-fide" need and a purchaser seeking specific performance who has to show his "readiness and willingness" fall under this category. There is however a recognized exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or "readiness and willingness". Examples of such attorney-holders are a husband/wife exclusively managing the affairs of his/her spouse, a son- daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad." 13. In view of the principles enunciated by the Hon'ble Apex Court in Man Kaur (supra), the attorney holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge. In view of the principles enunciated by the Hon'ble Apex Court in Man Kaur (supra), the attorney holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge. In the present case, the GPA holder, who was examined as PW1, has categorically admitted that he was not present at the time of transaction nor he has personal knowledge with regard to transaction between the plaintiff and the defendant. 14. The GPA holder was not competent to tender his evidence on behalf of the plaintiff. Hence, in the absence of evidence, the first appellate court was not justified in reversing the judgment and decree passed by the trial court. 15. In view of the preceding analysis, the impugned judgment and decree passed by the first appellate court is not sustainable in law and same requires to be set aside. 16. The defendant having admitted the receipt of Rs.21,000.00 way back in the year 1981, it would be appropriate to direct the defendant to refund the amount of Rs.21,000.00 with interest at the rate of 18% per annum from the date of filing of the suit. Hence, the following: ORDER: The appeal is allowed. The judgment and decree dtd. 29/7/2008 passed by the Civil Judge (Sr.Dn) Gadag in R.A. No. 46/2004 is set aside and the judgment and decree passed by the court of Civil Judge (Jr.Dn) and JMFC, Laxmeshwar in O.S. No. 147/1992 is modified to the extent that the defendant is directed to refund the amount of Rs.21,000.00 to the plaintiff with interest at the rate of 18% per annum from the date of institution of the suit till actual deposit.