Bombay High Court
1 Sanjeevani W/O Babaso @ ... vs 1 Shankar Laxman Lokare on 6 November, 2023
Bench: Anuja Prabhudessai
2023:BHC-AS:34127
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 17051 OF 2023
IN
SECOND APPEAL NO. 631 OF 2018
Sanjeevani Babaso Shivgonda Patil ..Applicant
v/s.
Shankar Laxman Lokare ..Respondents
Mr. Surel Shah a/w. Mr. Ishaan Kapse and Mr. Relekar Sakshaat
for the Appellant/Applicant.
Mrs. Pushpa Ganediwala i/b. Mr. Prashant Bhavake, Mr. Anshu
Agrawal and Mr. Ankit Rathod for the Respondent.
CORAM : ANUJA PRABHUDESSAI, J.
DATED : 6th NOVEMBER, 2023.
P.C.
1. The applicant has challenged the judgment and decree dated
22.10.2016 whereby the learned Principal District Judge, Kolhapur,
dismissed the appeal and confirmed the judgment and decree dated
26.08.2003 passed by the Civil Judge, Senior Division, Kolhapur in
suit for specific performance, being Special Civil Suit No. 379 of
1999.
2. The appellant is the owner of the land Plot No.169 admeasuring
993.7. sq. meters , which is referred to as the suit property. The
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appellant and the respondent entered into an agreement for sale dated
20.03.1996 to sell the said property for sale price at the rate of Rs.36.50
per square meter. It is stated that the respondent plaintiff had paid an
amount of Rs.50,000/- towards earnest money and agreed to pay
Rs.25,000/- by the end of August 1996. The balance amount was to be
paid within 11 months or on or before 19.2.1997.
3. The respondent-plaintiff has undisputedly paid Rs.75000/-, and
had further issued notice dated 23.01.1997 showing willingness to pay
the amount, and called upon the appellant-defendant to perform his part
of the contract i.e. get the land measured and clear from drain water.
The appellant-defendant did not respond to the said notice. Hence a
second notice came to be issued on 7.4.1999 and thereafter the suit came
to be filed on 21.08.1999.
4. The records indicate that the plaintiff did not step into the witness
box and instead his Power of Attorney deposed in the suit.
5. In Man Kaur (deceased) By Lrs vs. Hartar Singh Sangha
(2010) 10 SCC 512 the Apex Court has observed:
"To succeed in a suit for specific performance, the
plaintiff has to prove: (a) that a valid agreement of sale
was entered by the defendant in his favour and the terms
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thereof; (b) that the defendant committed breach of the
contract; and (c) that he was always ready and willing to
perform his part of the obligations in terms of the
contract. If a plaintiff has to prove that he was always
ready and willing to perform his part of the contract, that
is, to perform his obligations in terms of the contract,
necessarily he should step into the witness box and give
evidence that he has all along been ready and willing to
perform his part of the contract and subject himself to
cross examination on that issue. A plaintiff cannot
obviously examine in his place, his attorney holder who
did not have personal knowledge either of the transaction
or of his readiness and willingness. Readiness and
willingness refer to the state of mind and conduct of the
purchaser, as also his capacity and preparedness on the
other. One without the other is not sufficient. Therefore a
third party who has no personal knowledge cannot give
evidence about such readiness and willingness, even if he
is an attorney holder of the person concerned."
6. The Apex Court has further observed that :
"18. ...
(c) The attorney holder cannot depose or give evidence in
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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."
7. It is further held that :
"18. ...
(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
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an old and infirm parent, a father/mother exclusively
managing the affairs of a son/daughter living abroad.
8. In the instant case, the attorney holder is not a close relative of
the appellant-plaintiff. The question whether he was competent to
depose on behalf of the plaintiff needs consideration. The appeal is
already admitted on the substantial question of law.
9. Under the circumstances, interim relief in terms of prayer clause
(a).
. The execution and implementation of the impugned
judgment and decree dated 26th August, 2002 in Special
Civil Suit No. 379 of 1999, stands stayed pending hearing
of the appeal, subject to the condition that the appellant-
plaintiff shall not transfer, alienate or create third party
rights in respect of the suit property.
. Interim Application stands disposed of.
(ANUJA PRABHUDESSAI, J.)
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