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2004 DIGILAW 601 (CAL)

NABA KUMAR SEAL v. PRABIR KUMAR DHAR

2004-09-10

ARUN KUMAR

body2004
ARUN KUMAR BHATTACHARYA, J. ( 1 ) A short paragraph might perhaps have been enough for disposal of the present case, but a short-cut is a long-cut where people's justice is involved, and so it persuades my pen to enter into a bit detail, but before I do so the circumstances leading to the present revision need be stated. ( 2 ) SMT. Bhabani Dhar who was the absolute owner of premises No. 671, lake Gardens, Calcutta - 700 045 executed a power-of-attorney in favour of her husband Jagadish Chandra Dhar and entered into an agreement for development of the said premises with Raj Kumar Singhania. As some dispute arose between them the said Raj Kumar Singhania instituted T. S. 101/93 in the Court of Id. Assistant District Judge at Alipore for referring the matter to arbitrator. The suit was being contested by Smt. Bhabani Dhar through her husband - constituted attorney Jagadish Chandra Dhar. The said Jagadish died on 13. 08. 1994 and the present petitioner No. 1 Naba Kumar Seal (defendant no. 2 in the suit) was contesting the suit on behalf of Bhabani Dhar on the basis of an alleged power-of-attorney. The present O. P. No. 1 Prabir Kumar dhar instituted T. S. 861/96 in the City Civil Court at Calcutta for a declaration that defendant No. 1 Smt. Bhabani Dhar who is missing since 1982 be declared as dead, that he and his brother present O. P. No. 2 are the only joint owners, that all the documents including power-of-attorney in favour of defendant Nos. 2 and 3 are forged etc. The contention of the present petitioners in the said suit is that Bhabani Dhar is missing since 02. 02. 1995 and on the basis of power-of-attorney executed by her in favour of defendant Nos. 2 and 3, the present petitioner No. 1 entered appearance in the said suit 101/93. During trial of the said T. S. 861/96 the defendant (present petitioner No. 1) urged for marking the power-of-attorney dated 28. 09. 1994 executed by Smt. Bhabani Dhar in favour of them as an exhibit which was rejected by the Id. XIth Bench vide impugned order being No. 53 dated 10. 03. 2003. ( 3 ) BEING aggrieved by, and dissatisfied with, the said order the present revision has been preferred. ( 4 ) ALL that now requires to be considered is whether the Id. XIth Bench vide impugned order being No. 53 dated 10. 03. 2003. ( 3 ) BEING aggrieved by, and dissatisfied with, the said order the present revision has been preferred. ( 4 ) ALL that now requires to be considered is whether the Id. Court below was justified in passing the said order. ( 5 ) MR. S. S. Roy, Id. Counsel for the petitioners, on referring to section 85 of the Evidence Act contended that a power-of-attorney has been given a special position in view of the said provision whereby the Court is bound to presume that a power-of-attorney duly authenticated by a Notary Public was duly authenticated and executed, and as such the Id. Court below having acted with material irregularity in refusing to exhibit the document, the impugned order is liable to be set aside. Mr. Arindam Mukherjee, Id. Counsel for the opposite parties on the other hand, on referring a decision reported in AIR 1952 Vindhya pradesh 4 advanced argument contending that in the facts and circumstances id. Court below rightly refused to exhibit the document specially when execution of the same is the subject-matter of dispute and such an order is not subject to revision. ( 6 ) NOW, authentication means more than mere attestation. What is required is an assurance by the person authenticating the identity of the person who has signed the instrument, as well as the fact of execution. In this connection, the decisions reported in Wall Mohammad vs. Jamal Uddin, AIR 1950 All. 524 , may be referred to. The presumption of power-of-attorney under section 85 is undoubtedly rebuttable. Authentication is more than mere execution before one of the persons designated in section 85. For the purpose of presumption to be operative the authentication must be clear, specific and decisive. Where a person designated in section 85 puts his signature on the basis of identification made by an Advocate, the presumption under section 85 should not be drawn ( AIR 1979 Bom. 202 ). So where a power-of-attorney is suspected, in which case proof of execution can be called for, the agent should be allowed to appear and act within Order 3 Rule 2. In the present case, there is nothing to suggest that the executant was personally known to the Notary Public, but he attested the signature of the executant on the identification of an Advocate. In the present case, there is nothing to suggest that the executant was personally known to the Notary Public, but he attested the signature of the executant on the identification of an Advocate. When the plaintiffs case is that Bhabani Dhar is missing since 1982 which is denied by the defendants contending that she is missing from 02. 02. 1995 and thus execution of the power-of-attorney in favour of the present petitioner No. 1 and another is very much in dispute, the Id. Court below was well within jurisdiction to ask for proof of execution. ( 7 ) THAT apart, an interlocutory order which is now statutorily included in the expression "case decided" to be revisable must satisfy in addition to the four conditions as embodied in section 115 of C. P. Code, two other conditions as mentioned under clause (a) or (b) of the proviso viz. it would have finally disposed of the suit or other proceeding or it would occasion a failure of justice or cause irreparable injury to the party against whom it was made. A case may be said to be decided, if the Court adjudicates for the purposes of the suit some right or obligation of the parties in controversy; every order in the suit cannot be regarded as "case decided" within the meaning of section 115 ( AIR 1970 SC 406 ). The words "illegally" and "with material irregularity" do not cover either errors of fact or of law; they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated may relate either to breach of some provisions of law or to material defects of procedure affecting the ultimate decision, and not to errors either of fact or of law, after the prescribed formalities have been complied with ( AIR 1971 SC 2324 ). So, when the Court allows a document to be admitted in evidence or refuses to allow it that does not amount to deciding a case, but it amounts to deciding a question regarding the admissibility of certain evidence. When the Court decides question under the Evidence Act, it is not deciding a case and so its decision cannot be the subject-matter of revision under section 115, as was held in the case reported in AIR 1963 Guj 241 . When the Court decides question under the Evidence Act, it is not deciding a case and so its decision cannot be the subject-matter of revision under section 115, as was held in the case reported in AIR 1963 Guj 241 . Simply because a litigant has a very common and oft recurring grievance with an order of subordinate Court it is no ground for invoking the jurisdiction under Article 227 of the Constitution (AIR 1952 vindhya Pradesh 4 ). ( 8 ) ACCORDINGLY, since no revision lies a question of affirming the impugned order in this proceeding is out of the way. ( 9 ) ACCORDINGLY, the revisional application be dismissed on contest but without any cost in the circumstances. ( 10 ) LET a copy of this order be sent down at once to the Id. Court below. ( 11 ) LET xerox certified copies of this order be supplied to the Id. Counsels for the parties expeditiously upon completion of necessary formalities. Revisional application dismissed.