KULWINDER SINGH Vs. NAWIN C RAJP

JUDGEMENT

(1.) The present revision petition has been filed under Article 227 of the Constitution of India challenging the order dtd. 14/11/2024 (Annexure P-12) passed by the Civil Judge (Senior Division), Shaheed Bhagat Singh Nagar, partly allowing an application filed by the plaintiff-petitioner under Sec. 65 of the Indian Evidence Act, 1872/Sec. 60 of the Bharatiya Sakshya Adhiniyam, 2023 for permission to lead secondary evidence.

(2.) Brief facts as relevant to the present lis are that the plaintiff- petitioner filed a suit for specific performance of an agreement to sell dtd. 18/4/1996. It was averred in the plaint that Smt. Tejo Kamal Rajp died in UK and after her death all the defendant-respondents had succeeded to her estate in equal shares. It was the case set up that Tejo Kamal Rajp, during her lifetime, executed an agreement to sell on 18/4/1996 through her attorney, Shri Prem Kumar Purohit vide a General Power of Attorney dtd. 23/10/1970. It was further averred that the plaintiff-petitioner was a tenant in the suit property and is in possession of the same. Written statement was filed to the plaint. An application was filed by the defendant-respondent No.1 under Order 7 Rule 11 CPC for rejection of the plaint on the ground that the suit was not within the period of limitation. The said application was dismissed. Aggrieved by the same, a Civil Revision being CR-6617-2015 was filed by the defendant-respondent No.1 and on 20/1/2016 notice of motion was issued and proceedings were stayed. Eventually, CR-6617-2015 was disposed off by a co-ordinate Bench of this Court vide order dtd. 16/11/2023. Thereafter, an application was filed by the defendant-respondent No.1 under Order 12 Rule 8 read with Order 11 Rule 14 CPC for directing the plaintiff-petitioner to produce the General Power of Attorney dtd. 23/10/1970 alleged to have been executed by Tejo Kamal Rajp and power of attorney dtd. 2/9/1998 given by Tejo Kamal Rajp in favour of Parwin Chandra Raj Purohit. The application was disposed off as the plaintiff- petitioner took a stand that the originals were not in his possession. Subsequently, the application under Order 39 Rules 1 and 2 CPC filed by plaintiff-petitioner was dismissed qua which an appeal is pending. The plaintiff-petitioner also filed an application under Sec. 65 of the Indian Evidence Act, 1872/Sec. 60 of the Bharatiya Sakshya Adhiniyam, 2023 for production of documents i.e. i) Power of the Attorney dtd. 2/9/1998; (ii) Twelve Rent Receipts (detailed in para 3 of the application); (iii) Ten Letters addressed to Prem Kumar Purohit (detailed in para 4 of the application); (iv) Two Letters addressed to Nishi Purohit and its Registered Covers (detailed in para 5 of the application); (v) Will dtd. 29/8/1951 of Kartar Chand in favour of Tejo Kamal Rajp (detailed in para 5 of the application) as secondary evidence. Reply was filed to the said application. Vide the impugned order dtd. 14/11/2024 the said application was partly allowed qua leading secondary evidence with respect to the General Power of Attorney dtd. 2/9/1998 and with respect to the other documents the application was dismissed. Aggrieved by the same, the present revision petition has been filed by the plaintiff-petitioner.

(3.) Learned counsel for the plaintiff-petitioner would contend that in order to prove the relationship between the executor of the agreement to sell and her Power of Attorney, it was necessary to lead secondary evidence in the shape of 12 rent receipts, 10 letters addressed to Prem Kumar Purohit, 2 letters to Nishi Purohit and a Will dtd. 29/8/1951 of Kartar Chand in favour of Tejo Kamal Rajp. Learned counsel would further contend that the letters and the rent receipts are necessary to show that it was the Power Attorney holder who was actually doing everything for Tejo Kamal Rajp. It is further the contention that though the documents were handed over in 2014, however, from January 2016 to November 2023 there was a stay of proceedings and, thus, the delay could not be held against the plaintiff- petitioner.