RSA No. 5015 of 2010 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh RSA No. 5015 of 2010 (O&M) Date of decision: 19.01.2011 Amarjit Kaur and others .....Appellants Versus Jagdev Singh .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Vikram Bali, Advocate, for the appellants **** SABINA, J. Plaintiff filed suit for possession. The case of the plaintiff in brief was that he had purchased the flat in question from Sukhpal Singh on 12.03.1996 and later, the same was transferred in his name. Plaintiff had cleared all the dues and had paid transfer fee to the House fed. Defendant was a tenant in the said house at monthly rent of ` 1200/-. However, defendant had failed to pay rent from March, 1996 onwards. A notice was issued qua termination of the tenancy to the defendant on 2.6.1999. Since then, defendant was in unauthorised occupation of the flat in dispute. RSA No. 5015 of 2010 (O&M) 2 Defendant in his written statement alleged that the flat in dispute was allotted to Sukhpal Singh on 30.8.1986 by the Punjab State Federation of Co-operative House Building Society for a sum of ` 1,10,000/-. The possession of the house was delivered to Sukhpal Singh. An agreement to sell was executed by Sukhpal Singh in favour of Sucha Singh on 14.8.1987. Sukhpal Singh received a sum of ` 85,000/- from Sucha Singh and handed over the possession of the house to Sucha Singh. Thereafter, Sucha Singh deposited installment with the Society upto 2.2.1995. Entire outstanding amount had been deposited by Sucha singh. Sukhpal Singh had also executed a general power of attorney and WILL in favour of Sucha Singh on 14.8.1987. All the documents relating to the flat were handed over to Sucha Singh. Sucha Singh died on 16.11.1992. After his death, Gurmit Kaur became owner in possession of the flat in question on the basis of WILL executed in her favour. Defendant was residing in the flat since 26.11.1992 and had been paying electricity and water charges. The alleged transfer by Sukhpal Singh in favour of the plaintiff on 12.3.1996 was illegal, null and void. Defendant was not a tenant under the plaintiff. On the pleadings of the parties, following issues were framed by the trial Court:- “1.Whether the plaintiff is entitled to the possession of the suit property as alleged in the plaint?OPP 2.Whether the plaintiff is entitled to the recovery of arrears of rent as alleged in the plaint?OPP 3.Relief.” Learned counsel for the appellants has submitted that the RSA No. 5015 of 2010 (O&M) 3 plaintiff had failed to prove his case. Once the house in dispute has been sold to Sucha Singh by Sukhpal Singh, thereafter, Sukhpal Singh has no concern with the same and later on could not execute an agreement to sell in favour of the plaintiff or anybody else. Sucha Singh had come in possession of the house in dispute after an agreement to sell was executed in his favour. In support of his arguments, learned counsel has placed reliance on Shrimati Shamrao Suryavanshi vs. Pralhad Bhairoba Suryavanshi 2002 (1)RCR(Rent) 302. Para 17 of the judgment reads as under:- “We are,therefore, of the opinion that if the conditions enumerated above are complied with the law of limitation does not come in the way of a defendant taking plea under Section 53-A of the Act to protect his possession of the suit property even though a suit for specific performance of a contract has barred by limitation” Learned counsel has next place reliance Balraj Singh vs. Pritam Singh 2007(2)RCR(Civil) 714 where in it has been held as under;- “3. The defendants in their written statements and reply to the application admit execution of the two agreements to sell relating to Blocks A and C and the two general powers of attorney, both dated 16th November, 1983, authorizing the plaintiff to deal, lease and manage the properties and for the sale deeds to be executed. However, without specifying the amounts still due from the plaintiff in terms of the two agreements to sell, they deny the receipt of the total sale consideration. The suit is contested, inter alia, on the pleas that:it is not maintainable as framed without the RSA No. 5015 of 2010 (O&M) 4 plaintiff seeking specific performance of the agreements; the power of attorneys having been cancelled the relief claimed in respect thereof has become infructuous; the plaintiffs have failed to fulfill their obligations under the two agreement to sell inasmuch as they neither settled the disputes with the L&DO nor got compounded the breaches alleged by the said authority, entitling the defendants to revoke the power of attorneys, which they have done. On these an other pleas raised in resistance to the suit, issues have already been stuck.” He has further placed reliance in Shikha Properties (P) Ltd. v. S.Bhagwant Singh (Delhi) 1998(3) PLR(Delhi) 32 wherein it has been held as under:- “8. I have considered the whole matter. The agreements to sell and the irrevocable power of attorneys executed for consideration for sale received by the defendants, in favour of the plaintiff Company were meant not only to get the sale deeds executed, but also conferred rights on the plaintiff to manage the properties and deal with the tenants, create leases or sub-leases. Pursuant to their execution, the properties being in occupation of tenants/occupants, constructive possession of the properties appears was handed over to the plaintiff, since the plaintiff has been dealing with the tenants, recovering rent and virtually exercising ownership rights all this while. As noticed above, and as is evident from the pleas raised in support and resistance to the suit, briefly set up by the parties and the RSA No. 5015 of 2010 (O&M) 5 issues stuck, arise in the suit and it will neither be proper nor desirable to express any opinion on them at this stage. For the purpose of this application for temporary injunction, the Court has to take only a prima facie view of the matter. Bearing in mind the view expressed by a Division bench of this court in Harbans Singh's case(supra) and followed in Prem Raj and H.L. Malhotra's cases (supra) to the effect that if an irrevocable power of attorney is executed for consideration, the same cannot be cancelled, and having regard to the fact that the plaintiff Company has been managing the suit properties all the while right from the year 1983, I feel that the plaintiff has a prima facie case and the balance of convenience lies in its favour. If the operation of the impugned notice, revoking the general power of attorneys, is not stayed and the defendants are given a free hand to deal with the subject properties the way they like, the plaintiff is likely to suffer irreparable injury. The decision in Satyabrata Ghose's and Ram Gopal Reddy's cases (supra), relied upon by learned counsel for the defendants, are clearly distinguishable on facts. None of the authorities cited by learned Counsel for the defendants deal with the intent and scope of Section 202 of the Contract Act. In Satyabrata Ghose's case (supra), the Apex Court while dealing with Section 54 of the Transfer of Property Act, merely held that doctrine of frustration is applicable to contracts for sale of land in India. Similarly in Ram Gopal Reddy's case(supra) as is evident from the RSA No. 5015 of 2010 (O&M) 6 head note itself, the Hon'ble court merely noticed the uncontested principle of law that where the immovable property sold is more than Rs.100/- title does not pass to a transferee unless sale deed is registered. These authorities do not advance defendants' case. The instant case, prima facie, is covered by Section 202 of the Contract Act as admittedly, having paid consideration for sale and having been dealing with the suit properties practically as owners, for fairly long, the plaintiff appears to have vital “interest” in it, requiring protection till it is held as washed away or nullified on the pleas raised by the defendants, which can be determined only after full trial.” Learned counsel has also placed reliance on Manmohan Singh vs. Smt. Narinder Kaur 2008(4)RCR(Civil) 81 wherein it has been held as under:- “9. It may need a mention that the petitioner never appeared in support of his application seeking setting aside of the ex- parte ejectment order. Whether he was served or not or if he had refused service could only have been validly answered by the petitioner himself and not by his attorney. The petitioner was to be served in person and not through his attorney. The fact of munadi having not been done would also be in the knowledge of the petitioner. All these aspects were in the personal knowledge of the petitioner and he only could have deposed about these. The attorney, though competent to give evidence on the basis of his personal knowledge, yet could not completely depose facts RSA No. 5015 of 2010 (O&M) 7 which were in the personal know, yet could not completely depose facts which were in the personal knowledge of the petitioner. The attorney cannot give evidence on behalf of the principal and in this regard reference can be made to the law laid own in Janki Vashdeo Bhojwani v. Indusind Bank Ltd., 2005(1) RCR(Civil) 240 (SC), wherein the Hon'ble Supreme Court has held that attorney holder cannot be allowed to appear and depose as a witness on behalf of the principal in the matter of his personal knowledge. He can only appear as a witness in his own capacity to depose with regard to the acts done by him on behalf of the principal. The relevant observations of the Hon'ble Supreme Court are as under:- “Order III Rules 1 and 2 CPC, empowers the holder of power of attorney to “act” on behalf of the principal. In our view the word '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 to 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 which only the principal can have a personal knowledge and in respect of which principal is entitled to be cross-examined”. RSA No. 5015 of 2010 (O&M) 8 Learned counsel also placed reliance on Ram Narain Singh vs.Guriner Kaur . . 1997(2)PLR 1. Para 10 of the said judgment reads as under;- “For brevity sake, it may be mentioned that ex parte decree was passed on 20.10.1972. Issue No.1 has been decided in favour of the applicant. As per Article 123 of the Limitation Act, 1963, application for setting aside the ex parte decree could be made within 30 days from the date of the knowledge of the decree. It is the specific case of the applicant in both the applications dated 7.6.73 which was dismissed on 24.9.1973 and in the application dated 24.9.73 that he came to know about the institution of the suit and execution of the decree on 4.5.73 when the Patwari Halqa went to the suit land in order to deliver the possession to the decree holder. In these circumstances, the period of limitation of 30 days would run from 4.5.73 and not from any subsequent date as argued by Shri Jain before this Court. The learned counsel for the petitioner submitted that his client came to know about the decree on 28.5.73/31.5.73 when his client obtained the copies of roznamcha and when he inspected the file of the main case. This submission of Shri Jain cannot be accepted in view of the catgorical averments made by the applicant on two occasions while giving two applications under Order 9 Rule 13 CPC. Even the oral statement of the applicant which is against the pleadings cannot be looked into on account of the settled RSA No. 5015 of 2010 (O&M) 9 law that no amount of evidence can be waived which is beyond the pleadings of the parties. This Court has the occasion to have a glance to both original applications dated 7.6.73 and 24.9.73. In fact, application dated 7.6.73 was typed out on 4.6.73 as it would be evident from seeking the date, which was typed as 4.6.73. This date 4.6.73 has been corrected with hand so as to be read as 7.6.73. This clearly suggests that even on 4.6.73, the petitioner was aware that the ex parte decree has been obtained by the decree holder against him on 22.10.1973. It is a settled law that each day of the limitation is to be explained. However, if any law is required on this point, 1973 PLJ 611, Charanjit Singh v. The Sub Divisional Officer is an authority which can be read with advantage. It has been held in this situation that if the period of limitation expires each day's delay has to be explained. The application could be filed under Order 9 Rule 13 CPC according to Article 123 of the Limitation Act on 4.6.73. In the first application dated 7.6.73 there is no averment why the application was filed after two days' delay on 7.6.1973. Even in the supporting affidavit attached with that application no sufficient cause has been shown. In fact, the petitioner had prepared himself to file the application on 4.6.1973 yet he did not bother that in case he did not file the application on that day, he would be losing a very valuable right. When a litigant is negligent and is not bothered about his rights, for such a litigant the law cannot come to the rescue because RSA No. 5015 of 2010 (O&M) 10 law always helps vigilant litigant and not otherwise. The application dated 7.6.1973 continued upto 24.91973. At no point of time the applicant thought proper to make an application before the Court for the amendment. He allowed this application to be dismissed on 24.9.1973 by filing a fresh one. Even if it is assumed for the sake of argument that the 2nd application under Order 9 Rule 13 CPC was in continuation of the first one yet the petitioner has to explain why he could not file the first application within the statutory period of 30 days which must be calculted w.e.f 4.5.1973” After hearing the learned counsel for the appellant, I am of the opinion that the instant appeal deserves dismissal. The present case rests on documentary evidence. The house in question was allotted to Sukhpal Singh vide allotment letter dated 30.8.1986. As per the same, the balance amount of sale consideration was to be paid in 20 years in 80 equal installments. The said installments were, thus, liable to be paid upto the year 2006. Appellant paid the last installment on 2.2.1995 but thereafter he did not pay any further installments. Thereafter, Sukhpal Singh entered into an agreement to sell with the plaintiff and plaintiff paid the entire installments with the Society. Sukhpal Singh moved an application to Manager SAS Nagar Housing Complex Co-operative House Building Society requesting for transfer of the flat in dispute in favour of the plaintiff. The Society wrote a letter to the appellant Bahadur Singh that Jagdev Singh had sought transfer of the ownership of the flat in question in RSA No. 5015 of 2010 (O&M) 11 his favour. Appellant produced power of attorney in his favour on 10.7.1996. Jagdev Singh plaintiff submitted documents executed in his favour qua the flat in dispute. Thereafter, the flat in question was transferred in the name of the plaintiff vide letter dated 14.1.1999 Exhibit PW3/G. Thus, the flat in question was transferred in the name of the plaintiff after joining the appellant in the said proceedings. The appellant failed to challenge the letter Exhibit PW3/G although the same was apparently in his knowledge. The appellant or his predecessors never sought transfer of the flat in question in their name from the Society. Since the case rests on documentary evidence, the fact that the plaintiff himself has not appeared in the witness box loses its significance. The attorney of the plaintiff had appeared in the witness box. In view of the transfer letter Exhibit PW3/G executed in favour of the plaintiff, learned Courts below rightly decreed the suit of the plaintiff for possession. The judgments relied upon by the learned counsel for the appellant fail to advance the case of the appellant as they are on different facts. No substantial question of law arises in this appeal. Dismissed. ( Sabina ) Judge January 19, 2011 arya