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2000 DIGILAW 474 (CAL)

PANNALAL JAISWAL v. SHYAMSUNDER SHARMA

2000-09-14

PRABIR KUMAR SAMANTA

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P. K. SAMANTA, J. ( 1 ) THIS is a second revisional application under Article 227 of the Constitution of India. The said revisional case arose out of an order dated 19th September, 1998 passed by the trial Court in Misc. Case No. 33 of 1996 by condoning the delay in filling the said Miscellaenous case under section 5 of the Limitation Act. By the impugned order dated 11th August, 2000, the learned District Judge dismissed the civil revision case filed under section 115a of the Code by affirming the order of the trial Court for condonation of delay in filing the aforesaid miscellaneous case. ( 2 ) THE suit filed by the plaintiff/petitioner was decreed ex-parte on 11th October, 1996 i. e. a few days before the annual vacation. After such exparte decree was passed in the suit, annual vacation intervened. The defendant/opposite party coming to know of such exparte decree applied for a certified copy of the said exparte decree on 13th November, 1996 i. e. on the re-opening of the Court and the above miscellaneous case was filed on 16th November, 1996 after consultation with the learned Lawyer for the defendant/opposite parts. Accordingly there was delay of about four days in filing the aforesaid miscellaneous case under Order 9, Rule 13 of the Code. ( 3 ) AT the hearing of the aforesaid petition under section 5 of the Limitation Act, one Shri Suraj Narayan Singh, deposed on behalf of the defendant/opposite party as the Constituted Attorney of the said defendant/opposite party. Evidently, the power of attorney was executed by the defendant/opposite party in favour of said Suraj Narayan Singh on 7th November, 1996. The learned trial Court upon consideration of the facts and circumstances of the case and the evidences of the respective parties condoned the delay in filing the aforesaid case. The said order was challenged in a revisional application under section 115a of the Code and the said revisional application also failed. In both the Courts below, the point agitated was that the evidence given by said Suraj Narayan Singh in support of the petition under section 5 of the Limitation Act was not admissible in law in view of the Order 3, Rule 2 of the Code and in view of Clause 48 (f) under Schedule IA to the Indian Stamp Act, 1899. It was contended that the said power of attorney dated 7th November, 1996 was stamped at Rs. 50/- only, even when Clause 5 of the said power of attorney entitled the said constituted attorney to sell the properties of the defendant/opposite party and, therefore, the stamp of Rs. 50/- only was insufficient on the value of the properties of the defendant/opposite party of which the power was given to the constituted attorney to make transfer. Secondly, upon reference to the single Bench decision of Rajasthan High Court reported in AIR 1998 Rajasthan 185 in relation to the provisions of Order 3, Rule 2 of the Code, it was contended that the power of attorney holder was not entitled to appear as a witness for a party appointing him as his constituted attorney. It may be recorded that in the revisional Court below apart from the points as above there was no challenge to the merits of the order as passed by the trial Court for condonation of delay in preferring the aforesaid miscellaneous case. ( 4 ) IN these state of affairs, the questions came up for consideration in this second revisional application are whether the evidence of said Suraj Narayan Singh in support of the petition under section 5 of the Limitation Act was inadmissible in view of the said Clause 48 (f) of Schedule 1a to the Indian Stamp Act, 1899 as it was stamped at Rs. 50/- only and whether said Suraj Narayan Singh was competent to depose in support of the said petition on behalf of the defendant/opposite party. The Clause 38 (f) of schedule 1a of the aforesaid Act provides that in respect of a power of attorney which is given for consideration by authorising the attorney holder to sell any immovable property, there shall be paid with the duty as a conveyance (No. 23) for the amount of such consideration. ( 5 ) MR. Tapan Dutta, the learned Advocate appearing on behalf of the plaintiff/petitioner could not show anything on the face of the aforesaid power of attorney that such power of attorney was given to said Suraj Narayan Singh for some consideration. On the contrary, Mr. Dutta, contended that such consideration should be the consideration for which the immovable properties of the defendant/opposite party would be transferred and/or conveyed. I am unable to accept such contention. On the contrary, Mr. Dutta, contended that such consideration should be the consideration for which the immovable properties of the defendant/opposite party would be transferred and/or conveyed. I am unable to accept such contention. Because the description of the instrument and the stamp duty provided on such instrument under Article 48 (f) of Schedule 1a to the said Act stipulates that when a power of attorney is given for a consideration, the stamp duty would be upon such consideration only as conveyance and not upon any other consideration. This necessarily implies that the stamp duty to would be on the document itself but not on the basis of the subject matter involved in the said documents. Therefore, the contention that the aforesaid power of attorney executed in favour of Suraj Narayan Singh was not admissible in evidence on the ground as above is not tenable in law. The next contention that the evidence of said Suraj Narayan Singh was not admissible on the above ground, therefore, necessarily fails. However, the contention that said Suraj Narayan Singh can not depose as a party defendant in the aforesaid miscellaneous case, in view of the said decision of the Rajasthan High Court, is also not tenable in the sense that the deposition of Suraj Narayan Singh would be admissible, in any event as the deposition of a witness in support of the petition under section 5 of the Limitation Act. Said Suraj Narayan Singh did not depose as the defendant but he deposed on behalf of the defendant in support of the said petition under section 5 of the Limitation Act and made a reference to the said power of attorney not to prove his capacity to depose in the proceeding but to establish his acquaintance with the facts and circumstances relating to the passing of the decree and making of the application for setting aside of the same. Therefore, the said witness in any event would be a witness in support of the petition under section 5 of the Limitation Act. It was for the Court to decide the probative value of the deposition of such witness for the purpose of condonation of delay. Therefore, the contention that the evidence given by the said Suraj Narayan Singh was not admissible in law cannot have any legs to stand up on. It was for the Court to decide the probative value of the deposition of such witness for the purpose of condonation of delay. Therefore, the contention that the evidence given by the said Suraj Narayan Singh was not admissible in law cannot have any legs to stand up on. The learned trial Court upon consideration of the probative value of deposition of such witness accepted the plea on behalf of the defendant and such finding having not been challenged in the revisional Court below, there is no scope for re-agitation of the same at this second revisional application. Accordingly, the impugned order does not suffer from any illegality whatsoever to be interfered with in exercise of the power of superintendents under Article 227 of the Constitution of India. That apart, this is not a case in the nature of rarest of rare type of cases for which such power should be exercised by the Court in the second revisional application. In all these views, the revisional application fails and the same is, therefore, dismissed. Urgent xerox certified copy of this order, if applied for, be supplied to the parties as expeditiously as possible. Application dismissed