A party seeking specific performance must personally testify to their readiness and willingness to perform the contract, especially when represented by an attorney.

JUDGMENT

1. This appeal is directed against the judgment & decree dated 22.08.2019 passed by the Additional District Judge No.5, Udaipur, whereby the judgment & decree dated 03.11.2015 passed by the Additional Senior Civil Judge No.2, Udaipur has been upheld.

2. A suit for specific performance of contract dated 29.07.1997 and possession was filed by the plaintiff - Smt. Sona against Bhera in relation to a plot situated at Revenue Village Manwakheda, Tehsil Girwa, District Udaipur. It was, inter-alia, claimed that the plot in question was agreed to be sold for a sum of Rs.45,000/-, for which part consideration of Rs.20,000/- was paid as advance and the sale deed was to be executed within three months. It was claimed that the plaintiff was ready and willing to perform her part of the contract and for the said purpose, she alongwith her husband and father, approached the defendant with the balance consideration and Rs.5,000/- for purchase of stamps and registration fees, however, the defendant failed to perform his part of the contract. Based on the said averments, the suit seeking specific performance of contract and possession was filed.

3. During pendency of the suit, defendant Bhera died and his legal representatives were taken on record.

4. Further on the application filed by Smt. Renu Bhatiya and Kamlesh Kumar for being impleaded as parties, based on prior agreement to sale and transfer, they were impleaded as defendants to the suit.

5. Written statement was filed by Bhera, who denied the execution of the agreement dated 29.07.1997 and receipt of any consideration. It was stated that no cause of action has arisen in favour of the plaintiff based on the agreement dated 29.07.1997. It was indicated that the agreement was fraudulent, no notice was ever given by the plaintiff to him and as such, the aspect of readiness and willingness has not been explained.

6. Further averments were made that on 23.07.1997, agreement was entered into by Bhera with Smt. Renu Bhatiya and Kamlesh Kumar Verma for sale of the plot for a sum of Rs.4,01,000/-, Rs. 1,01,000/- were received as part consideration and when Urban Improvement Trust, Udaipur CUIT') mutated the plot in favour of Bhera on 12.11.2003, by way of power of attorney a sale deed was executed by Bhera on 31.12.2003 in favour of Smt. Renu Bhatiya and Kamlesh Kumar Verma. Whereafter, their names have been entered in the records of the UIT on 06.02.2004. It was prayed that the suit be dismissed.

7. On behalf of the defendants Smt. Renu Bhatiya and Kamlesh Kumar Verma, it was claimed that they had a prior agreement to sale in their favour, based on which, sale deed has been executed in their favour, they were bonafide purchasers and therefore, the suit was liable to be dismissed.

8. The trial court in two trenches framed eight issues. Three issues were framed on 20.03.2004 and five issues were framed on 17.11.2008.

9. On behalf of the plaintiff, two witnesses were examined and 03 documents were exhibited.

10. On behalf of the defendants, four witnesses were examined and 18 documents were exhibited. PW-1 Dharamraj gave statements in rebuttal.

11. After hearing the parties, the trial court came to the conclusion that the plaintiff Smt. Sona did not enter the witness-box, only her power of attorney Dharamraj, her husband was examined, which resulted in the plaintiff not being available for cross-examination in relation to her readiness and willingness to perform her part of the contract.

12. It was further found that as the agreement did not bear the signatures of either the plaintiff or her husband Dharamraj, it was necessary that the plaintiff should have appeared in the witness-box. The Court also noticed the contradictory statements of PW-2 Girdhari Lal and PW-1 Dharamraj with regard to execution of the agreement to sale and the fact as to who introduced Bhera to plaintiff as both Dharamraj and Girdhari Lal denied that they had any prior acquaintance with Bhera.

13. The trial court also gave creden