SANTOSH VAIDYA Vs. NAMDEO BUDDE AND ORS.

JUDGEMENT

(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.

(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 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 - 1/2 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 - 1/2 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 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 - 1/2 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 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.

(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 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 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.