PANNALAL JAISWAL Vs. SHYAMSUNDER SHARMA

JUDGEMENT

(1.) This is a second revisional application under Article 227 of the Constitution of India. The said revisional case arose out of an order dated 19th September, 1998 passed by the trial Court in Misc. Case No.33 of 1996 by condoning the delay in filling the said Miscellaenous case under section 5 of the Limitation Act. By the impugned order dated 11th August, 2000, the learned District Judge dismissed the civil revision case filed under section 115A of the Code by affirming the order of the trial Court for condonation of delay in filing the aforesaid miscellaneous case.

(2.) The suit filed by the plaintiff/petitioner was decreed ex-parte on 11th October, 1996 i.e. a few days before the annual vacation. After such exparte decree was passed in the suit, annual vacation intervened. The defendant/opposite party coming to know of such exparte decree applied for a certified copy of the said exparte decree on 13th November, 1996 i.e. on the re-opening of the Court and the above miscellaneous case was filed on 16th November, 1996 after consultation with the learned Lawyer for the defendant/opposite parts. Accordingly there was delay of about four days in filing the aforesaid miscellaneous case under Order 9, Rule 13 of the Code.

(3.) At the hearing of the aforesaid petition under section 5 of the Limitation Act, one Shri Suraj Narayan Singh, deposed on behalf of the defendant/opposite party as the Constituted Attorney of the said defendant/opposite party. Evidently, the power of attorney was executed by the defendant/opposite party in favour of said Suraj Narayan Singh on 7th November, 1996. The learned trial Court upon consideration of the facts and circumstances of the case and the evidences of the respective parties condoned the delay in filing the aforesaid case. The said order was challenged in a revisional application under section 115A of the Code and the said revisional application also failed. In both the Courts below, the point agitated was that the evidence given by said Suraj Narayan Singh in support of the petition under section 5 of the Limitation Act was not admissible in law in view of the Order 3, Rule 2 of the Code and in view of Clause 48(f) under Schedule IA to the Indian Stamp Act, 1899. It was contended that the said power of attorney dated 7th November, 1996 was stamped at Rs.50/- only, even when Clause 5 of the said power of attorney entitled the said constituted attorney to sell the properties of the defendant/opposite party and, therefore, the stamp of Rs.50/- only was insufficient on the value of the properties of the defendant/opposite party of which the power was given to the constituted attorney to make transfer. Secondly, upon reference to the single Bench decision of Rajasthan High Court reported in AIR 1998 Rajasthan 185 in relation to the provisions of Order 3, Rule 2 of the Code, it was contended that the power of attorney holder was not entitled to appear as a witness for a party appointing him as his constituted attorney. It may be recorded that in the revisional Court below apart from the points as above there was no challenge to the merits of the order as passed by the trial Court for condonation of delay in preferring the aforesaid miscellaneous case.