1 - Prabhat Kumar Dubey S/o Late Bihari Lal Dubey, R/o D-16, Vinoba Nagar v. 1 - Jyoti Variyani W/o
Case Details
1 2025:CGHC:6951 NAFR RAHUL JHA Digitally signed by RAHUL JHA Date: 2025.02.07 13:21:57 +0530 HIGH COURT OF CHHATTISGARH AT BILASPUR Judgment reserved on : 10/12/2024 Judgment delivered on: 07/02/2025 FA No. 7 of 2018 1 - Prabhat Kumar Dubey S/o Late Bihari Lal Dubey, R/o D-16, Vinoba Nagar, Raipur, Tahsil And District Raipur, Chhattisgarh. Appellant/Defendant No.1 Versus 1 - Jyoti Variyani W/o Shri Prakash Chandra Variyani, R/o D-16, Sector- 2, Devendra Nagar, Raipur, District Raipur, Chhattisgarh Respondent No.1/Plaintiff 2 - Sandhya Goel W/o Sudhanshu Prakash Goel, R/o 5027b, Sector-38, Chandigarh (W) Respondent No.2/Defendant No.2 For Appellant : Mr. Surfaraj Khan, Advocate For Respondent
Legal Reasoning
attorney-holders. This Court in Janki Vashdeo Bhojwani v. Indusind Bank Ltd.5 held as follows: (SCC pp. 222-24, paras 13, 17-18 & 21) "13. Order 3 Rules 1 and 2 CPC empower the holder of power of attorney to 'act' on behalf of the principal. 9 In our view the word 'acts' employed in Order 3 Rules 1 and 2 CPC confines only to in respect of 'acts' done by the power-of-attorney holder in exercise of power granted by the instrument. The term 'acts' would not include deposing in place and instead of the 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 acts 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 a personal knowledge and in respect of which the principal is entitled to be cross-examined.” 14. Therefore, in absence of evidence of plaintiff, the entire trial is vitiated because in the present suit, the husband of the plaintiff (Jyoti Variyani) namely Prakash Chandra Variyani (PW1) has deposed on her behalf as power of Attorney holder. Hence, the finding of the Trail Court, though burden to prove the issue was on Defendant No.2, however, she has not entered into the witness box in the second inning of the trial, but the claim in respect of this issue is raised by the plaintiff for obvious reason, technically to prove the same, Defendant No.2 ought to have forward into the witness box, but no formal prove is required in view of the Section 58 of the Indian Evidence Act, is erroneous finding. Issue no. 1A can only be proved by Defendant No. 2 Sandya Goel, who had executed the agreement to sale dated 09/02/2000 and no other 10 person can step into the shoes of Defendant No.2, who had executed the agreement to sale dated 09/02/2000. 15. For the foregoing reasons, the appeal filed by the appellant/defendant No.1 is allowed. The impugned judgment and decree dated 27/09/2017 passed in Civil Suit No. 91-A/2004 by the II Additional District Judge, Raipur is set-aside. Consequently, the suit is dismissed. 16. There shall be no order as to cost(s). 17. Let a decree be drawn accordingly. Sd/- (Bibhu Datta Guru) JUDGE Rahul/ Gowri
Arguments
: Mr. Amrito Das and Mr. Ankur Agrawal, No.1 Advocate (HON'BLE SHRI BIBHU DATTA GURU, JUDGE CAV JUDGMENT 1. Challenge in the present appeal by Defendant No.1/appellant is to the Judgment and decree dated 27/09/2017 passed in Civil Suit 2 No. 91-A/2004 by the learned II Additional District Judge, Raipur, whereby the suit was decreed in the following terms:- A. Defendant No.2 is entitled for decree of specific performance in terms of agreement to sell dated 09/02/2000 against the Defendant No.1, and Defendant No.2 having already got the sale deed executed in compliance thereof through Court, is not required to get the same executed again; B. Defendant No.2 having sold the suit property to the plaintiff in terms of sale deed dated 16/11/2009, which being valid one, confers title on the plaintiff; C. In the peculiar facts and circumstances of the case, parties are left to bear their respective costs. (For the sake of convenience, the parties would be referred hereinafter as per their status shown in the suit before the trial Court) 2. At the very outset, it is noteworthy to mention that initially the suit was filed by Defendant No.2, Sandya Goel against the Defendant No.1, Prabhat Kumar Dubey (Appellant herein) seeking specific performance of the contract, however, subsequently, respondent No.1 herein, Jyoti Variyani has been impleaded as plaintiff and the original plaintiff i.e. Respondent No.2 herein Smt. Sandhya Goel has been transposed as Defendant No.2, which can be seen from order-sheet of the trial Court dated 17/01/2017. 3. (i) The facts which are essential for adjudication of this appeal are that originally, Defendant No.2 instituted a Civil suit against Defendant No.1 seeking specific performance of contract dated 3 09/02/2000 (Ex.P/1) in respect of property being house number D- 16, Sector-2, Devendra Nagar, Raipur (hereinafter referred to as ‘Suit Property’). One of the conditions specified in the said agreement to sale was that Defendant No. 1 shall obtain No Objection Certificate from Raipur Development Authority (in short RDA) and thereafter subject to making the balance payment by Defendant No.2, the sale-deed shall be executed by Defendant No.1 in favour of Defendant No. 2. (ii) It has been pleaded in the plaint that despite repeated request, defendant No.1 did not obtain No Objection Certificate from RDA on lame excuses, leading to non-execution of sale deed in favour of defendant No.2. Thus, ultimately, on failure to execute sale-deed in terms of the said agreement to sale, the suit was instituted by Defendant No.2 against Defendant No.1. (iii) In the said suit, Defendant No.1 was proceeded ex-parte, leading to passing of ex-parte decree dated 09/12/2004. In terms of said decree Defendant no. 2 got sale deed dated 16/02/2006 executed through the Court. Defendant No.2 also got her name recorded in the records of Raipur Development Authority and after obtaining requisite permission on 16/05/2008 from the said authority, constructed first floor and sold the same to the Plaintiff/Jyoti Variyani, in terms of sale deed dated 16/11/2009. (iv) Defendant no.1 in the meantime applied for setting aside of the ex parte decree, which was allowed in terms of order dated 4 31/01/2011. The plaintiff came to know about such setting aside for the first time in the year 2012, when she received notice from the Court, on the application of Defendant No.1 under section 144 of the Code of Civil Procedure. It was further pleaded that defendant No.1 has admitted execution of the agreement to sale in question and has also specifically pleaded in his written statement that he was always ready and willing to execute the sale deed in favour of defendant no.2 (v) Defendant No. 1 has contested the suit and categorically stated that he was always ready and willing to execute the sale- deed, however, since he could not get NOC from the RDA, he could not execute the sale deed in compliance of the said agreement. (vi) The Defendant No.2 (the original plaintiff) has supported the plaint averments. 4. The learned trial Court, after hearing the parties, and on the basis of pleadings of the respective parties framed four issues and on conclusion of the trial, the learned trial Court passed the impugned judgment and decree by decreeing the suit in favour of Defendant No.2. Thus, this appeal by the Defendant No.1/Appellant herein. 5. Learned counsel for the appellant/defendant No.1 would submit that Defendant No.2 (original plaintiff) on the basis of ex parte decree, got the sale-deed dated 16/02/2006 executed in her 5 favour through the Court. The said decree having been set-aside in terms of order dated 31/01/20211 makes the said sale-deed void and, as such, Defendant No.2 (original plaintiff) cannot be said to be to have acquired any title, so as to pass the same in terms of subsequent sale-deed dated 16/11/2009 (Ex.P/8) to the present plaintiff. Reliance has been placed on the order of the Supreme Court in the matter of R. Shama Naik v. G. Srinivasiah, SLP (Civil) No. 13933/2021, decided on 28/11/2024. 6. Learned counsel for the respondent/plaintiff, per contra, would submit that the plaintiff is the bonafide purchaser and she has purchased the suit property in terms of sale-deed dated 16/11/2009 from defendant No.2 (original plaintiff ), who, at the relevant time, was the title holder, on the basis of sale deed executed by the Court in her favour and for said purchase, she obtained loan from the bank. Learned counsel for Defendant No.2 would further submit that the agreement dated 09/02/2000 (Ex.P/1) is admitted by defendant no.1 without any demur. He would also submit that in response to the demand notice dated 18/01/2003 (Ex. P/2)) of defendant no.2, defendant no.1 vide his reply dated 28/01/2003 (Ex.P/3) has admitted his willingness to execute sale-deed, provided he gets NOC from RDA. Learned counsel would submit that the plaintiff had purchased the property on 16/11/2009 after obtaining due permission for transfer from 6 RDA, thereafter, the sale-deed was executed. According to the learned counsel, the plaintiff paid the entire consideration amount and obtained the title, which was without any encumbrance on the date, the sale deed was executed in her favour. Even, there was no litigation in respect of the subject property on the date the plaintiff purchased the same from the Defendant No.2. Learned counsel would next submit that the plaintiff purchased the suit house with the improvement as was made by the Defendant No.2 after paying the entire consideration for ground and first floor, therefore, the plaintiff/respondent No.1 is entitled for protection under Section 51 of the Transfer of Property Act, 1882. He would submit that Defendant No.1 does not have any right and title over the improvement made and purchased by the plaintiff. He would submit that the impugned judgment and decree is just and proper, warranting no interference of this Court and the appeal may be dismissed. Reliance has been placed in the matter of Shri Ram Sahu v. Vinod Kumar Rawat, (2021) 13 SCC 1 and Sayeda Akhtar v. Abdul Ahad, (2003) 7 SCC 52. 7. I have heard learned counsel for the parties and perused the record with utmost circumspection. 8. The Trial Court has framed four issues, which are as under:- No. 1A Issues Whether the defendant number 2 (erstwhile plaintiff) is entitled for specific performance of contract dated 9th of February 2000 from defendant number one? Finding In ‘Affirmative’ 7 1B 2 If yes, whether the plaintiff (erstwhile defendant number 2) in view of sale deed executed in compliance of judgment and decree dated 9th of December, 2004, is not liable to get the sale deed executed again?. Whether the defendant number 2/plaintiff in terms of contract dated 9th of February 2000 has paid the balance consideration of Rs. 4 Lakhs? 3. Relief and cost? Additional Issue 4 considering totality of Whether circumstances and the relief sought by the plaintiff, present suit is barred by limitation? the In ‘Affirmative’ In ‘Affirmative’ In terms of Para 22 In ‘Negative’ 9. It would be noteworthy to mention here that the Plaintiff has not examined herself as witness to prove her case. The proposed seller/Defendant No.2 has not entered into the witness box. 10. Issue No. 1A i.e. “Whether the Defendant No. 2 (erstwhile plaintiff) is entitled for specific performance of contract dated 09/02/2000 from Defendant No.1”, the same has been decided by the Trial Court in ‘affirmative’ without examination and evidence of Defendant No.2, Sandhya Goel herself, whereas the Issue No. 1A can only be proved by Defendant No.2, Sandya Goel who had executed the agreement to sale dated 09/02/2000. 11. Issue No. 1B i.e. “if yes, whether the plaintiff (erstwhile Defendant No.2) in view of sale-deed executed in compliance of judgment and decree dated 09/12/2004 is liable to get sale-deed executed again” is also answered in ‘affirmative’, despite the fact that the same is an erroneous issue, because after the judgment and 8 decree dated 09/12/2004 having being set-aside, all the subsequent events and transaction pursuance to said decree amount to redundant. Hence, no issue can be decided on the basis of decree dated 09/12/2004, which has already been set- aside and not in existence. 12. The trial Court committed a gross error by proceeding in the suit by transposing the erstwhile plaintiff as Defendant No.2 and impleading the subsequent purchaser as Plaintiff who is not a party to the agreement to sale dated 09/02/2000. Hence, no decree for specific performance of contract can be granted in favour of present plaintiff, who has no relation and not a party to the agreement to sale dated 09/02/2000. Inspite of the fact that Jyoti Variyani has signed and verified the plaint, however, the plaintiff Jyoti Variyani never came in the witness box to prove the suit or case. 13. It is well settled law that “Power of attorney Holder cannot be deposed for his or her principal”. The Supreme Court in the matter of Man Kaur (Dead) by Lrs. V Hartar Singh Sangha, (2010) 10 SCC 512 has held at paragraph 15 as under:- “15. We may next refer to two decisions of this Court which considered the evidentiary value of the depositions of the