Nitin Kumar v. Jagat Singh

(iii) No sale deed could have been executed in absence of requisite documents with respect to ownership/title of the property in question, being in possession of the respondent/defendant. The respondent/defendant did not have any transferable title and therefore, could not have executed valid sale deed.

(iv) Forfeiture of the advance money could have only taken place if the appellant/plaintiff had failed to get the sale deed executed before the last date on account of any incapacity or failure on his part. In the instant case, the sale deed could not be executed on account of the respondent/defendant‟s failure to satisfy the appellant/plaintiff with respect to ownership and title of the property in question.

(v) Learned trial court ought not to have given undue advantage to the respondent/defendant on the ground of appellant/plaintiff not being examined before the trial court.

(vi) When the SPA holder, who happens to be the father of the appellant/plaintiff himself was one of the witnesses to the agreement to sell, he was competent to depose with respect to those facts and circumstances. The SPA‟s deposition being part of the transaction could not have been disputed.

(vii) The cross-examination of the respondent/defendant itself proves that he did not have any title document with respect to the land in question and the suit could be decreed on the basis of two important aspects: (i) the admission of the respondent/defendant with respect to execution of the agreement to sell and receipt of the advance money and (ii) cross-examination of the respondent/defendant admitting the absence of title documents with respect to the property in question.

(viii) Lastly, in view of the provisions of Section 58 of the Indian

14. He has placed reliance on the decision of the Supreme Court in the case of Fateh Chand v. Balkishan Das.[1] to submit that the earnest money could not be forfeited since the respondent/defendant has not been able to show any loss. He further placed reliance on the decision of the Suraj Lamp and Industries Private Ltd. v. State of Haryana & Anr.[2] to contend that the transfer of an immovable property by way of sale could only be done by a deed of conveyance and in absence of the same, no right, title, interest etc. could be transferred.

15. Mr. L. B. Rai, learned counsel appearing for the respondent/defendant strongly opposed the submissions made on behalf of the appellant and made the following broad submissions:-

(i) The suit filed by the appellant/plaintiff is misconceived and is an afterthought as the appellant/plaintiff failed to comply with the terms of agreement to sell.

(ii) The forfeiture of the earnest money was an express condition in the agreement to sell itself and the appellant/plaintiff failed to get the sale deed executed within permissible time and even extended time.

(iii) The appellant/plaintiff parallelly executed another agreement dated 25.03.2013 for transfer of the subject property to a third party, namely Vijay Pal Singh Lohiya, which itself shows that the appellant/plaintiff was well versed with the situation, stage, 1963 AIR 1405 location and all other attendant facts with respect to the land in question.

(iv) The SPA has no right to depose with respect to the suit and unless the original plaintiff has not entered into the witness box and supported the suit, the suit remains unproved and accordingly, learned trial court has rightly dismissed the same.

(v) The appellant/plaintiff witness no.1, namely Suresh Pal, in his cross-examination unequivocally admitted that parents of the respondent/defendant used to live in the same village from the time of their forefathers.

(vi) A plot in question existed at the site on the relevant date and no action was taken by the DDA.

(vii) It is a matter of record that the same plot was subsequently purchased by a third party and, therefore, it does not lie in the mouth of the appellant/plaintiff to say that no sale deed could have been executed.

16. Learned counsel placed reliance on a decision of the Hon‟ble Supreme court in the case of Janki Vashdeo Bhojwani and Ors. v. Indusind Bank Ltd. & Ors.[3] and Ram Prasad v. Hari Narain & Ors.[4] to substantiate his submissions.

17. I have considered the rival submissions made by the learned counsels appearing for the parties and perused the record.

ANALYSIS

18. The primary issue which falls for consideration of this Court is whether, in the facts and circumstances of the case, the SPA holder of the appellant/plaintiff was competent to act and depose on behalf of the appellant/plaintiff by entering the witness box for proving appellant/plaintiff‟s case? The subsequent issues concerning the validity of forfeiture, execution of sale deed etc. are contingent upon the determination of this issue.

19. Before dwelling into the aforesaid question, it is imperative to understand in detail the legal position with respect to Order III Rule 1 of CPC,which empowers a Power of Attorney (POA) holder to act on behalf of the principal.

20. For the sake of clarity, Order III Rule 1 of CPC reads as under:-

21. A perusal of the aforesaid provision would evince that the same deals with the scope and validity of certain acts done by an attorney in conducting cases before the Court. The main objective of Order III Rule 1 of CPC appears to be to enable the parties in a litigation to perform certain acts on their behalf through an agent or a pleader, which would otherwise have been mandated by law to be done by the parties in-person. In lucid terms, the said provision enacts a general rule and confers a procedural right upon the parties to be represented.

22. The aforesaid provision is couched in a language which would allow the attorney or agent to „act‟, make an „application‟ or to „appear‟ in a Court on behalf of the principal. It is thus germane to delve into the scope and extent of the authority vested in the agent or attorney in terms of Order III Rule 1 of CPC to perform certain acts. The decision relied upon by the respondent/defendant in the case of Janki Vashdeo (supra), succinctly encapsulates the legal position revolving around the provision under consideration. The relevant extract of the said decision reads as under:- “...........in the case of Ram Prasad Vs. Hari Narain&Ors. AIR 1998 Raj. 185. It was held that the word "acts" used in Rule 2 of Order III of the CPC does not include the act of power of attorney 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 the CPC. We hold that the view taken by the Rajasthan High Court in the case of Shambhu Dutt Shastri (supra) followed and reiterated in the case of Ram Prasad (supra) is the correct view....” (emphasis supplied)

23. The dictum laid down in the case of Janki Vashdeo (supra), has been followed by the Supreme Court in the case of Mohinder Kaur v. Sant Paul Singh[5], wherein, it was reiterated that the power of attorney holder cannot depose for the matters if he was not having personal knowledge of such act or transaction. The relevant paragraph of the said decision reads as under:- “7. In Janki Vashdeo [Janki Vashdeo Bhojwani v. Indusind Bank Ltd., (2005) 2 SCC 217], it was held that a power-ofattorney holder, who has acted in pursuance of the said power, may depose on behalf of the principal in respect of such acts but cannot depose for the principal for the acts done by the principal and not by the power-of-attorney holder. Likewise, the power-of-attorney holder cannot depose for the principal in respect of matters of which the principal alone can have personal knowledge and in respect of which the principal is entitled to be cross-examined. In our opinion, the failure of the respondent to appear in the witness box can well be considered to raise an adverse presumption against him as further observed therein as follows: (SCC p. 223, para 15)

9) 3 SCC 573] observed at SCC pp. 583-84, para 17 that: „17. Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct.…”

24. In the case of Rajesh Kumar v. Anand Kumar & Ors.6, the Supreme Court has held that a plaintiff cannot examine in his place, his attorney holder, who did not have any personal knowledge either of the transaction or with respect to his readiness or willingness to fulfil the transaction. The relevant paragraph of the said decision is reproduced as under:- “12……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 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. If a plaintiff, in a suit for specific performance is required to prove that he was always ready and willing to perform his part of the contract, it is necessary for him to step into the witness box and depose the said fact and subject himself to cross-examination on that issue. A 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. The term „readiness and willingness‟ refers to the state of mind and conduct of the purchaser, as also his capacity and preparedness, one without the other being not sufficient. Therefore, a third party having no personal knowledge about the transaction cannot give evidence about the readiness and willingness.”

25. An analysis of the aforementioned decisions rendered by the Supreme Court unequivocally alludes to a settled position of law that the word „act‟ employed in Order III Rules 1 and 2 of CPC is confined only to the act done by the power of attorney holder in exercise of the 2024 SCC OnLine SC 981 powers granted by the instrument. An agent or attorney is strictly prohibited to depose on behalf of such acts of his principal of which he does not have any personal knowledge.

26. Thus, a significant question which stands posited at this juncture is whether the father of the appellant/plaintiff, namely Suresh Pal, was entitled to depose on behalf of his son for the transaction of agreement to sell. Undisputedly, at the time of execution of agreement to sell, Suresh Pal was only a witness to the transaction and did not act as a power of attorney on behalf of the appellant/plaintiff. It was only at a subsequent point of time that the appellant/plaintiff authorised Suresh Pal to institute the suit for recovery of earnest money. Thus, by no prudent stretch of imagination, it could be said that Suresh Pal „acted‟ on behalf of his son at the time of executing the agreement so as to satisfy the conditions laid down in Order III Rule 1 of the CPC.

27. It was strenuously argued by the appellant/plaintiff that since Suresh Pal was witness to the agreement to sell, he was qualified enough to depose on behalf of the appellant/plaintiff as the relevant facts were in his personal knowledge. Thus, another pertinent issue which needs to be answered is whether being a witness of the agreement to sell would necessarily imply that Suresh Pal had all the requisite information to prove the case on behalf of the appellant/plaintiff. The said issue is no more res integra and reliance can be placed upon the decision rendered by the Supreme Court in the case of Hemkunwar Bai v. Sumersingh & Ors.[7] to answer the same. In the said case, it was explicitly held that a witness to a transaction or agreement would not necessarily know the contents of the document being executed. In addition to the ground that he was a witness, there is no other material to form a view that Suresh Pal was competent to Civil Appeal No. 8827/2011 depose about the agreement from his personal knowledge. Therefore, it could be safely concluded that Suresh Pal did not have all the requisite information qua the agreement to sell, contents thereof and subsequent developments as none of such „acts‟ were done by him in the capacity of SPA. All such information cannot be said to be in his personal knowledge merely because he was a signatory as a witness to the agreement to sell. Therefore, Suresh Pal could not have deposed regarding the facts of the agreement to sell and other attendant circumstances from his personal knowledge and thus, he could not have acted in the Court as a competent witness on behalf of his son. His power to „act‟ in the Court on behalf of his principal/son in terms of the SPA did not extend to being a witness of a transaction which was within the personal knowledge of his principal only.

28. In the case of Anil Rishi v. Gurbaksh Singh[8], the Supreme Court was of the opinion that, though not being an inviolable rule, however, in general parlance, the burden of proving a fact rests on the party asserting the fact and not the party denying it. The relevant paragraphs of the said decision have been reproduced as under:- “8. The initial burden of proof would be on the plaintiff in view of Section 101 of the Evidence Act, which reads as under: “101. Burden of proof.—Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.”

9. In terms of the said provision, the burden of proving the fact rests on the party who substantially asserts the affirmative issues and not the party who denies it. The said rule may not be universal in its application and there may be an exception thereto. The learned trial court and the High Court proceeded on the basis that the defendant was in a dominating position and there had been a fiduciary relationship between the parties. The appellant in his written statement denied and disputed the said averments made in the plaint.

19. There is another aspect of the matter which should be borne in mind. A distinction exists between burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is, which party is to begin. Burden of proof is used in three ways: (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counter-evidence; and

(iii) an indiscriminate use in which it may mean either or both of the others. The elementary rule in Section 101 is inflexible. In terms of Section 102 the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same.”

29. This Court in the case of Harish Mansukhani v. Ashok Jain[9], took a view that the plaintiff has to prove his case and stand on his own legs. The Court held that undoubtedly, the defendant therein did not produce his books of account but that would not mean that the plaintiff must succeed on the said account itself.

30. Thus, looking at the nature of the controversy involved in the present lis, it was necessary for the appellant/plaintiff to have deposed during the proceedings before the learned trial court.

31. It has also remained undisputed that the appellant/plaintiff never appeared in the witness box to prove his case. It was only the father of the appellant/plaintiff who deposed on behalf of his son despite not possessing the knowledge required to act on his behalf. An interplay of Order III Rule 1 of CPC read with the judicial pronouncements in the cases discussed above, would solidify the position that in the suit for recovery of earnest money, the appellant/plaintiff was required to appear and depose and in the given facts, he could not have authorised 2008 SCC OnLine Del 1242 anyone else, particularly his father who was merely a witness to the agreement. The facts with respect to the breach of terms of agreement by either of the parties or the alleged failure on the part of the appellant/plaintiff to comply with the terms of the agreement to sell could only have been proved by the appellant/plaintiff himself.

32. It is also significant to refer to the decision of the Supreme Court in the case of Vidhyadhar v. Manikrao10, wherein, the Court was dealing with a situation where a party had not appeared personally in the witness box in support of its case. The Supreme Court took a view that non-appearance of the party to the suit in the witness box would lead to an adverse presumption of its case. Paragraph no.17 of the said decision reads as under:- “17. Where a party to the suit does not appear in the witnessbox and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh [AIR 1927 PC 230: 32 CWN 119]. This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh [AIR 1930 Lah 1: ILR 11 Lah 142] and the Bombay High Court in MartandPandharinath Chaudhari v. RadhabaiKrishnarao Deshmukh [AIR 1931 Bom 97: 32 Bom LR 924]. The Madhya Pradesh High Court in GullaKharagjit Carpenter v. Narsingh Nandkishore Rawat [AIR 1970 MP 225: 1970 MPLJ 586] also followed the Privy Council decision in Sardar Gurbakhsh Singh case [AIR 1927 PC 230: 32 CWN 119]. The Allahabad High Court in Arjun Singh v. Virendra Nath [AIR 1971 All 29] held that if a party abstains from entering the witness-box, it would give rise to an adverse inference against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass v. Bhishan Chand [AIR 1974 P&H 7] drew a presumption under Section 114 of the Evidence Act, 1872 against a party who did not enter the witness-box.”

33. Reliance can further be placed upon the decision in the case of Adivekka v. Hanamavva11, wherein, the Supreme Court has held that in a case where the plaintiff was not examined, the non-examination of the party to the suit would lead to an adverse inference against him. The said presumption can be traced to sub-section (g) to Section 114 of the Indian Evidence Act, 1872 which suggests that if relevant evidence is withheld by the plaintiff, the Court can assume that the evidence would be unfavourable to the plaintiff if it had been produced.

34. Much emphasis has been placed by the appellant/plaintiff on the non-supply of the title documents by the respondent/defendant. However, a perusal of the agreement to sell does not stipulate any such condition and if at all there existed any tacit understanding between the parties, the same could have been proved by the appearance of the appellant/plaintiff through his personal deposition. Admittedly, the same has not been done.

35. Thus, since the appellant/plaintiff has failed to prove his case at the threshold, the decisions cited by the plaintiff/appellant which deal with the principles related to the forfeiture of earnest money or necessity of sale deed would not come to rescue his case. The case of the plaintiff/appellant rested on the testimony of an incompetent witness who did not possess the requisite personal knowledge of the transaction so as to establish the foundational facts necessary for proceeding to the subsequent issues of forfeiture, sale deed etc.

36. In view of the aforesaid, no illegality appears to have been committed by the learned trial court in passing the impugned judgment.

37. Accordingly, the present appeal is bereft of any merit and consequently, the same stands dismissed. Pending application(s) are also disposed of. No order as to costs.

JUDGE AUGUST 21, 2024