SRI MALAY KUMAR SEN Vs. SMT. REKHA DAS

JUDGEMENT

(1.) The subject matter of challenge in the present revisional application is an order dated September 22, 2016 passed by the learned Civil Judge (Junior Division), Additional Court, Chandernagore in Title Suit No. 726 of 2014 on the application of the revisional petitioner for not to allow the second power of attorney holder of the opposite party, the plaintiff in the suit, to adduce evidence and not to allow the power of attorney executed by the opposite party as produced by the power of attorney holder as an exhibit. The learned Court below rejected the said application on the ground that in the present case the plaintiff is an old lady, who is unable to adduce before the Court as she is and the power of attorney holder is familiar with the matters involved in the suit. The learned Court below further held that since the power of attorney disclosed by the opposite party plaintiff's witness is a registered document, the same is as public document within the meaning of Section 74(2) of the Indian Evidence Act and the same is admissible under Section 76 of the said Act.

(2.) The brief facts giving rise to the present revisional application are that the opposite party filed Title Suit No. 103 of 1996, before the Court of the learned 1st Munsif at Chandernagore, against the petitioner, claiming a decree for declaration and permanent injunction. The opposite party, in her plaint, alleged that by a registered conveyance dated August 6, 1985 she purchased the A schedule property, along with the passagery right over the common passage of 6 feet width, being the C schedule property and after obtaining a sanctioned building plan she has constructed a single storied building at the said A schedule property having access only through the C schedule property. The plaint contains the averment that the building constructed at the A schedule property, having access through the C schedule common passage is possessed by the plaintiff through her only daughter, Smt. Devi Dutta wife of Sri Manoj Dutta. According to the opposite party plaintiff, the petitioner defendant is trying to encroach the C schedule common passage and claiming the said common passage to be part of his own property. The petitioner, as the sole defendant is contesting the said suit and has filed his written statement and additional written statement. In his said pleadings, the petitioner has not disputed the averment in the plaint about the possession of the A schedule property by the daughter of the opposite party plaintiff.

(3.) Considering the averments of the parties the learned Court below framed issues and the trial of the suit has commenced. The opposite party executed a power of attorney in favour of her daughter Smt. Devi Dutta authorising the latter, inter alia, to conduct the suit as also to adduce evidence on her behalf. When the said daughter of the opposite party filed her affidavit-in-chief, disclosing the power of attorney executed by her mother, the petitioner filed an application before the learned Court below raising an objection that as the constituted attorney of the opposite party, her daughter cannot be allowed to adduce evidence as plaintiff's witness. However, by order dated August 13, 2015 the learned Court below rejected the said objection raised on behalf of the petitioner. By order dated September 01, 2015 passed in the revisional application, being C.O. 3188 of 2015 a learned Single Judge of this Court upheld the said order dated August 13, 2015.