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2019 DIGILAW 1666 (HP)

Kamal Singh v. Shakuntala Devi

2019-11-06

AJAY MOHAN GOEL

body2019
JUDGMENT : AJAY MOHAN GOEL, J. 1. By way of this petition, petitioner has challenged order dated 09.08.2018 passed by the Court of Senior Civil Judge, Nurpur, District Kangra, H.P. in an application filed by the respondent/plaintiff under Section 65 of the Indian Evidence Act. 2. Brief facts necessary for the adjudication of the present petition are that respondent No. 1 herein has filed a suit for declaration that she alongwith proforma defendants is owner in possession of the suit land and defendant No. 1, i.e. the present petitioner is wrongly continuing in the revenue record as tenant gair mourusi at the back and without the knowledge of the plaintiff. 3. The suit was filed by the plaintiff through her general attorney Shri Daya Krishan, who, undisputedly is her husband. 4. It appears that during the cross examination of Shri Daya Krishan, an objection was taken by the present petitioner with regard to the mode of proof of the general attorney so executed by the plaintiff in favour of Daya Krishan on the ground that the original of the attorney was not being produced in the Court. 5. In view of this, an application stood filed by the plaintiff under Section 65 of the Indian Evidence Act for leading secondary evidence for proving certified copy of General Power of Attorney. Reason mentioned in the application as to why secondary evidence for proving the certified copy of the General Power of Attorney was necessary was that the applicant/plaintiff had lost the original General Power of Attorney somewhere due to old age and in spite of best efforts, the same could not be traced, so applicant/plaintiff had obtained certified copy of the General Power of Attorney from the office of Sub Registrar, Kangra, on 04.03.2018, wherein General Power of Attorney was executed by the plaintiff in favour of her husband in the year 2002, which she wants to prove. 6. This application was resisted by the present petitioner inter alia on the ground that the application was not in consonance with the provisions of Section 65 of the Indian Evidence Act and the same otherwise was not maintainable on the basis of grounds taken therein. 7. 6. This application was resisted by the present petitioner inter alia on the ground that the application was not in consonance with the provisions of Section 65 of the Indian Evidence Act and the same otherwise was not maintainable on the basis of grounds taken therein. 7. Learned Trial Court vide impugned order disposed of the said application by holding that there was no necessity for the plaintiff to lead any secondary evidence to prove said General Power of Attorney because in view of the fact that same was a duly registered document, it had become a public document in terms of Section 74 (2) of the Indian Evidence Act and the same could be proved by production of a certified copy thereof as per requirement of Section 77 of the Indian Evidence Act. 8. Feeling aggrieved, present petitioner preferred this petition. 9. I have heard learned Senior Counsel appearing for the petitioner as also learned Counsel for the contesting respondents and gone through record of the case appended with the petition. 10. In my considered view, there is no infirmity with the order which has been passed by the learned Trial Court because it is not as if that the application filed under Section 65 of the Indian Evidence Act stood allowed by the learned Trial Court. As it is not in dispute that the General Power of Attorney executed by the plaintiff in favour of her husband was duly registered with the Registering Authority, but obvious, the provisions of Section 74 (2) of the Indian Evidence Act got attracted and the document becomes a public document being a public record kept of a private document. In view of this, Section 77 of the Indian Evidence Act also comes into play which provides that such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies. Even otherwise, as the General Power of Attorney in dispute stands executed by the plaintiff in favour of her husband and further keeping in view the dispute which exists between the parties, in my considered view, it is in the interest of justice in case the matter is heard by the learned Trial Court on merit rather than permitting the parties to delay the adjudication thereof on hyper technical grounds. Accordingly, this petition, being devoid of merit, is dismissed. No order as to costs. Interim order stands vacated. Pending miscellaneous application (s), if any, stands disposed of accordingly.