P K PANDIAN Vs. KOMALA

JUDGEMENT

(1.) THIS civil revision petition is directed against the order dated 12. 06. 2006 in O. S. No. 488 of 1996 on the file of District munsif, Ponneri, in and by which the document No. 1 produced by the revision petitioner was rejected by the learned District munsif, Ponneri on the ground that certified copy of power of attorney cannot be admitted in evidence.

(2.) THE suit in O. S. No. 488 of 1996 has been preferred by the revision petitioner against the respondent before the trial Court praying for a decree of permanent injunction restraining the respondent, her men and agents and servants from alienating the plots in the suit property to any person in any manner and for awarding cost.

(3.) THE factual matrix necessary for disposal of the civil revision petition are as under: (i) The respondent, being the original owner of the suit property, entered into an agreement with the revision petitioner to develop the property and to sell it to third parties by plotting out the same and accordingly, a registered power of attorney was executed in favour of the revision petitioner by the respondent on 29. 01. 1993. The said power of attorney was registered before the sub-Registrar, Tamil Nadu Registration Department, ponneri. As per the said power of attorney, the petitioner was appointed as the general power of attorney. The entire market value of the property has been paid by the petitioner to the respondent simultaneous with the execution of power of attorney on 29. 01. 1993. Accordingly, the property was divided into 26 plots by forming a road and laying stones after spending a huge amount for reclamation by the petitioner. All the 26 plots were sold to different people and the sale deeds were registered on the basis of the power of attorney executed by the respondent. While so, the petitioner received a notice dated 21. 02. 1995 from the respondent informing him that the general power of attorney has been revoked as per document dated 20. 02. 1995. Subsequently, there were mediation between the parties. However,the same did not materialise and when the petitioner found that the respondent made arrangement to sale the plots to third parties, he was constrained to file the suit for permanent injunction. (ii) The suit was resisted by the respondent on the ground that no consideration has been received by her for executing the power of attorney and the sale deed alleged to have been executed by the petitioner was not binding on her: It was further indicated in the said written statement that the revision petitioner, who got property on the east and west of the respondent's property in s. No. 348/2d, contacted the respondent through her husband and requested her to leave a portion of the property on the southern side for necessary access for the plots so developed on the east as well as on the west. The property was subsequently developed by the respondent measuring 2. 96 acres and a power of attorney was given to the revision petitioner on 29. 01. 1993 only in respect of the southern 50 cents out of 2. 96 acres. However, subsequent to the registration of the power of attorney, the revision petitioner in collusion with the officials of the Registration Department seems to have changed the extent in the power of attorney to appear as if the extent is 1. 50 acres on the southern side out of 2. 96 acres in s. No. 348/2d. Accordingly, it was the contention of the respondent that the petitioner has no manner of right or interest in respect of the northern 1. 46 acres out of the total extent of 2. 96 acres in S. No. 348/2d and accordingly, the respondent prayed for dismissal of the suit. (iii) The matter was subsequently posted for evidence and a proof affidavit on the side of the revision petitioner was filed on 21. 06. 2006. Along with the proof affidavit, the document No. 1, a certified copy of the power of attorney stated to have been executed by the respondent in favour of the revision petitioner has also been marked. The marking of the said document was objected to by the respondent on the ground that the original has to be produced and the secondary evidence is not permissible. (iv) The petitioner contended before the trial Court that the original was lost and the same was also mentioned in the plaint as well as in the proof affidavit and as such, he was entitled to lead secondary evidence. (v) The matter was considered by the learned trial Judge and having found that no factual foundation was laid in the plaint in respect of the loss of original, the learned trial Judge was pleased to reject the said document holding that the said document cannot be admitted in evidence. (vi) It is the said order dated 12. 06. 2006 rejecting the power of attorney as inadmissible, which has been challenged in the present revision.