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2016 DIGILAW 377 (CAL)

Salim Badsha v. Md. Naziruddin Sk.

2016-04-27

SIDDHARTHA CHATTOPADHYAY

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JUDGMENT : Siddhartha Chattopadhyay, J. 1. Challenging the legality and validity of the Order No. 111 dated 06.05.2014, passed by the learned Civil Judge, (Senior Division) at Jangipur, in Partition Suit No. 66 of 2000, the present petitioner/plaintiff has filed this application on the ground that the learned Court below has come to an erroneous finding treating the alleged power of attorney, which was admittedly executed in Bangladesh, is legal and applicable in India. The learned Court below has also directed the said power of attorney holder to deposit Rs. 550 for the purpose of impounding the same under Section 33 of Indian Stamp Act. 2. In the revisional application, the plaintiff/petitioner specifically contended that the learned Trial Judge has mechanically passed the impugned order and failed to appreciate that the said alleged power of attorney holder had no authority to file an application under Section 47 of the Code and have no locus to file an application under Order 1, Rule 10 (2) of the Code. He further contended that question of authentication by the Indian Embassy is a paramount consideration, and since no authentication has been done by the said Embassy, the said alleged power of attorney cannot be treated as legal. 3. On perusal of the Order dated 06.05.2014, I find that the learned Court below held that since the power of attorney was executed outside India and a used in India, he shall liable to pay stamp duty under the Indian Stamp Act, but the learned Court below never considered that the said unregistered power of attorney was executed in Bangladesh and if it requires authentication or not. 4. At the time of hearing, learned Counsel appearing on behalf of the opposite party contended that the impugned order does not call for any interference since under Section 85 of the Indian Evidence Act, it is very much permissible and shall be admitted in evidence also. After hearing the rival submission of the parties it seems to me that the main grievance of the petitioner is such that the said power of attorney cannot be given effect to. 5. On perusal of Section 85, I find that the Court must presume that a power of attorney by a public notary or any Court, Indian Consul or representative of the Central Government was validly executed and authenticated. 5. On perusal of Section 85, I find that the Court must presume that a power of attorney by a public notary or any Court, Indian Consul or representative of the Central Government was validly executed and authenticated. Similarly under Sub-Section 6 of Section 78 any public document of any other class in a foreign country can be proved by producing the original or by a copy certified by the legal keeper thereof with a certificate under the seal of a notary public. It is thus evident that a rebuttable presumption is there. Learned Counsel appearing on behalf of the petitioner also submitted that notarial certificate issued by the notary of Bangladesh Court has no sanctity or validity in the eye of law as the same was not authenticated by the Indian Consul in terms of the provisions of Section 14 of the Notary Act, 1952 read with Section 85 of the Indian Evidence Act 1872. The Counsel submitted that under Section 85 of the Indian Evidence Act, there is a presumption that the Court shall presume every document purported to be power of attorney and to have been executed before, authenticated by, a notary public or any Court Judge, Magistrate, Indian Consul or Vice Consul or the representative of the Central Government, was also executed and authenticated. 6. Let me examine the alleged power of attorney. The power of attorney appears to have been notarized by one Md. Sahidur Rehman Ali and Md. Hitlar Uddin, an advocate has endorsed it. The said notary and its endorsement speaks that it was executed at Chapai Nababganj, Bangladesh and it was also endorsed by Mohammed Hitlar Uddin advocate. 7. After hearing the submission made by the parties it seems to me that only issue which requires consideration is whether the deponent has been able to satisfy this Court that they were duly authorised by Md. Naziruddin Sk. and Abdul Gafur. A question therefore arises as to whether this Court can recognise a notarial act, which took place before a notary public at Bangladesh. This question has to be addressed at the very outset and thereafter, this Court may consider the genuinity and authenticity of the document. 8. Naziruddin Sk. and Abdul Gafur. A question therefore arises as to whether this Court can recognise a notarial act, which took place before a notary public at Bangladesh. This question has to be addressed at the very outset and thereafter, this Court may consider the genuinity and authenticity of the document. 8. At the time of hearing, learned Counsel appearing on behalf of the opposite party mainly triggered Section 85 of the Indian Evidence Act and submitted that there is a presumption that it was properly executed and authenticated. The Indian Evidence Act was enacted in 1872 and thereafter Notary Act was enacted. Therefore, provision of Section 85 of the Indian Evidence Act cannot be mechanically applied here, without considering Section 14 of the Notary Act, 1952. As per Section 14 of the Notary Act, 1952 “Reciprocal arrangements for recognise of notarial acts done by foreign notaries can if the Central Government is satisfied that by law or practise of any country or place outside India, the notarial acts done by notary within India are recognised for all or any limited purpose in that country or place, the Central Government may, by notification in the official gazette, declare that the notarial acts lawfully done by notaries within such country or place shall be recognised within India for all purposes, or as the case may be, for such limited purposes as may be specified in the notification.” 9. Therefore, Section 85 of the Indian Evidence Act cannot be read in isolation and it is to be considered along with Section 14 of the Notary Act 1952. 10. In the case in hand, the opposite party has produced the notarial certificate before the Court below but that is not authenticated by Indian Embassy. Learned Counsel appearing on behalf of the opposite party could not furnish any notification published by the Central Government in the official gazette that the notarial acts lawfully done by the notaries of Bangladesh shall be recognised within India for all purposes or as the case may be for such limited purposes as may be specified in the notification. Therefore, learned Court below order is demonstratably unsustainable. Accordingly, the said order is hereby set aside. 11. Therefore, learned Court below order is demonstratably unsustainable. Accordingly, the said order is hereby set aside. 11. However, this Court makes it clear that the dismissal of the application under Order 1, Rule 10 (2) of the Civil Procedure Code shall not cause any prejudice to the rights of the present opposite parties to file a fresh petition on the same cause of action provided of course the petition conforms to the observation made by this Court herein within two months from this date, failing which it will be presumed that it was not duly authenticated by the Indian Embassy or that there was no such notification in terms of Section 14 of the Notary Act. If such an application is filed within two months complying with the direction as above the learned Court below shall consider the same afresh. C.O. No. 1328 of 2015 12. In view of the judgment passed in C.O. No. 1327 of 2015. I am of the view that the instant revisional application is a pre-matured one. Accordingly, it is dismissed at this stage. Liberty is given to file afresh if occasion arises. 13. Let a copy of this judgment be sent to the learned Court below for his information and taking necessary action in accordance with law. 14. Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities. Application is disposed of.