Rattan Kaur vs Amar Singh and others

R.L. Anand, J.—This is a Civil Revision and has been directed against the order dated 8.10.1999, passed by Additional Civil Judge (Sr. Division). Jalandhar. who, dismissed the application of the Petitioner u/s 65 of the Indian Evidence Act. 1872 for secondary evidence. 2. Some facts can be noticed in the following manner:

Smt. Rattan Kaur claiming herself to be the legal heir of Darshan Singh, filed a suit for possession by way of specific performance alleging that Shri Amar Singh for himself and on behalf of his sons and wife had entered Into an agreement of the sale dated 29.6.1990 with regard to the property to be sold, mentioned in the agreement itself. The sale deed was to be executed on or before 29.6.1992. The Defendant became dishonest. Hence the suit by the legal representative

The suit has been contested. The suit was instituted somewhere in the year 1992 When the suit was at the fag end, the Plaintiff made an application praying that she may be allowed to lead secondary evidence with regard to the fact that Shri Amar Singh was holding a attorney on behalf of his wife and sons This application was contested by the Defendants-Respondents and finally vide impugned order dated 8.10.1999, the application was dismissed by the learned Additional Civil Judge (Sr. Division), Jalandhar for the reasons given in the impugned order Hence the present revision.

I have heard Shri O.P Hoshiarpuri, learned Counsel, appearing on behalf of the Petitioner and Shri R.C. Dogra, Sr. Counsel, appearing on behalf of Respondents No. 2 and 3 and with their assistance 1 have gone through the record of the case

After going through the impugned order, I am of the considered opinion that this order is liable to be set aside.

In the plaint the Plaintiff has alleged that Shri Amar Singh had entered into an agreement of sale on his behalf and on behalf of others. In the agreement of sale the following words have been written -

Executed between Amar Singh s/o S. Dalip Singh son of Malu Ram resident of Shivaji Nagar Basti Danishmanda Jalandhar (self and Responsible of) Amar Karu wife of S. Amar Singh and Kulwant Singh, Gurdial Singh, Joginder Singh sons of Amar Singh all residents of Shivaji Nagar Basti Danishmanda Jalandhar City and responsible of Daljit Singh son of S Amar Singh (1st party/seller) and Darshan Singh son of Gurdip Singh r/o Village Wadala District Jalandhar (2nd party/ purchaser).

During the course of submissions, learned Counsel for the Petitioner has also invited my attention to a power of attorney prima facie showing that Amar Kaur and her four sons had executed a power of attorney in favour of Shri Amar Singh.

In this view of the matter, the trial Court ought to have given the opportunity to the Plaintiff to prove the factum whether any power, of attorney was executed by the: vendors in favour of Shri Amar Singh or not. It is the case of the Plaintiff that the original power of attorney was never handed over to her or her husband and it always remained in the possession of the vendors.

The learned Counsel for the Respondent relied upon Baljit Kaur Vs. Mohinder Kaur and Others, I have gone through this citation. It is difficult for me to lay down a law that when the Plaintiff is relying upon power of attorney executed by the Defendant, that document must be in, the possession of the Plaintiff. It depends upon the arrangement made by the vendor or the vendee.

10 Therefore this revision is allowed by setting aside- the impuaugned order dated 8.10.1999 and directions are given to the Additional Civil Judge (Sr. Division), Jalandhar to allow the Plaintiff to lead the secondary evidence to the effect as to whether there was any power of attorney executed and if so whether this document is in possession of the Plaintiff or the Defendant and also whether this document can be acted upon for the disposal of the suit or not. The Petitioner shall also pay a sum of Rs. 500/- as costs as she has moved the application at a belated stage.

Nothing stated above shall amount to an expression of my opinion on the merits of the suit. The parties through their counsel are directed to appear before the trial Court on 25. 9.2000.