Hazara Singh vs Dalip Singh and Others

G.S. Singhvi, J.—This revision petition is directed against the order dated 7.4.1995 passed by the learned Sub Judge First Class, Ferozepur, rejecting the application filed by the petitioner for permission to adduce secondary evidence in respect of the General Power of Attorney.

A suit for declaration filed by Dalip Singh is pending before the trial Court. During the pendency of the suit, defendant Nos. 2 to 12 moved an application u/s 65 of the Evidence Act for permission to lead secondary evidence in respect of the General Power of Attorney executed by Dalip Singh in favour of Inder Singh. The applicants alleged that sale deed dated 13.7.1982 was executed by Inder Singh for himself as well as Dalip Singh on the basis of the General Power of Attorney dated 28.7.1992. Applicants further stated that when the witnesses of General Power of Attorney were examined, application for leading secondary evidence could not be filed due to inadvertence. It was prayed that permission may be given to the applicants to lead secondary evidence to prove the General Power of Attorney. The application was opposed by the plaintiffs and after hearing the parties, the learned trial Court dismissed the application on the ground that there was delay in the filing of the application and there was no explanation for the failure of applicants to file application till the examination of the alleged attesting witnesses.

I have heard learned counsel for the parties and perused the record of the case.

There is no dispute between the parties that the document termed as General Power of Attorney dated 28.7.1992 has already been tendered in evidence and is exhibited as DW-10/A. The petitioner simply wanted permission to adduce secondary evidence so that any future objection about the General Power of Attorney may be met. The learned Sub Judge acted with material irregularity in rejecting the application only on the ground of delay and in my considered opinion, it would cause substantial injustice if the impugned order is not set aside.

For the aforementioned reasons, the revision petition is accepted. The application filed by the petitioner for adducing secondary evidence is allowed. The trial Court is directed to give opportunity to the petitioner to produce secondary evidence regarding General Power of Attorney. However, the petitioner shall pay costs of Rs. 1,500/- to the plaintiff-respondent.