Karnataka High Court
Sri V Naveen Kumar vs Ashok Chand on 17 January, 2013
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IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 17TH DAY OF JANUARY 2013
BEFORE
THE HON'BLE MR.JUSTICE H.BILLAPPA
W.P.No.26903/2012 (GM-CPC)
BETWEEN:
1. Sri.V.Naveen Kumar,
S/o Vijay Raj,
Age: 35 years, Occ: Business,
Add:No.6, Hanumaiah Reddy Road,
Ulsoor, Bangalore-8.
2. Sri.Vijay Raj,
S/o Late Amar Chand
Age: 63 years,
Add:No.6, Hanumaih Reddy Road,
Ulsoor, Bangalore-8. ...Petitioners
(By Sri.Venkatesh.P.Dalwai, Adv.
for M/s.Srivaru Law Firm, Adv.)
AND:
Ashok Chand,
S/o.Jeevaraj,
Age: 45 years, Occ: Business,
Add: No.2, G-10 Street,
Ulsoor, Bangalore-8. ...Respondent
(By Sri.G.Papi Reddy, Adv.)
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This WP is filed under Articles 226 & 227 of
Constitution of India, praying to quash the order dated
21.07.2012 passed in O.S.No.6680/01 by learned 37th Addl.
City Civil Judge at Bangalore(CCH-38) produced at Ann-J &
permits the petitioners the petitioners to mark copy of
General Power of Attorney dated 03.05.1999.
This W.P. coming on for Dictating Orders this day, the
Court made the following:-
ORDER
In this writ petition under Articles 226 & 227 of the Constitution of India, the petitioners have called in question, the order dated 21.07.2012, passed by the trial Court in O.S.No.6680/2001.
2. By the impugned order, the trial Court has rejected the request of the petitioners to mark the xerox copy of the General Power of Attorney in evidence.
3. Aggrieved by that, the petitioners have filed this writ petition.
4. The respondent has filed suit in O.S.No.6680/2001 for declaration that the sale deed dated 3 25.10.1999 executed by the 2nd petitioner in favour of the 1st petitioner as power of attorney holder of the respondent is null and void and the respondent is the owner of the suit schedule property. In the course of evidence, the petitioners have produced the xerox copy of the General power of attorney. The trial Court has rejected the request of the petitioners to mark the xerox copy of the General power of attorney in evidence. Therefore, this writ petition.
5. The learned counsel for the petitioners contended that the impugned order cannot be sustained in law. Inviting my attention to the pleadings and evidence he submitted that the petitioners have laid foundation and notice has been issued to the adverse party. Further he submitted that statutory requirement has been complied with and therefore, the impugned order cannot be sustained in law. He also submitted that the trial court has failed to notice that marking of the document is different from proving the document. He also submitted that the trial court has erred 4 while recording a finding based on the claim of the respondent that GPA was not executed. Further he submitted that the document can be received as secondary evidence and therefore, the impugned order cannot be sustained in law. He placed reliance on the decision of this Court reported in ILR 2006 KAR page 169.
6. As against this, the learned counsel for the respondent submitted that the impugned order does not call for interference. He also submitted that the execution of the General Power of Attorney has been denied and it is not in existence. He also submitted that the notice has been issued to the petitioner to produce the original GPA and it is suitably replied. Further he submitted that the case of the petitioners is that the original GPA is with the father of the respondent and notice has been issued to the respondent and not to the father of the respondent, i.e., Jeevaraj. He also submitted that the settlement deed is dated 16.04.1999 and the General Power of Attorney dated 10.05.1999 which clearly indicates 5 that the documents are fabricated. Therefore, he submitted that the impugned order does not call for interference. In support of his submission, he placed reliance on the following decisions:
AIR 1984 BOMBAY 19 AIR 1954 S.C 606 AIR 1971 MADRAS page 471 AIR 1987 ORISSA 138. (2007) 5 SCC page 730.
7. I have carefully considered the submissions made by the learned counsel for the parties.
8. The point that arises for my consideration is:
Whether the impugned order calls for interference?
9. It is relevant to note, the suit in O.S.No.6680/2001 has been filed by the respondent for declaration that the sale deed dated 25.10.1999 executed by the 2nd petitioner in favour of the 1st petitioner as power of attorney holder of the respondent is null and void and the 6 respondent is the owner of the suit schedule property. In the written statement, the petitioners have pleaded that Jeevraj, the father of the respondent has executed a family settlement dated 16.04.1999. As a follow up, the respondent has executed a General Power of Attorney in favour of the 2nd petitioner on 03.05.1999. The second petitioner has executed the sale deed in favour of the first petitioner on 25.10.1999. There is no plea that the original General Power of Attorney is with the respondent. It is pleaded the original GPA was returned to the father of the respondent after verification in the Sub-registrar's office and it is with him. The notice under section 66 of the Evidence Act has been issued to the respondent to produce the document. It is suitably replied. No notice is issued to the father of the respondent to produce the original GPA. The family settlement is dated 16.04.1999. The General Power of Attorney is dated 10.05.1999. In the written statement and notice it is stated that the General Power of Attorney is dated 3.5.1999. It is difficult to believe how GPA dated 3.5.1999 can be mentioned in the family 7 settlement dated 16.4.1999 which is unregistered. The specific case of the respondent is that he has not executed any GPA in favour of the second petitioner and the documents have been fabricated. The notice has been issued to the respondent to produce the original GPA. Law requires that notice must be issued to the person who is in possession of the document. In the present case notice has been issued to the respondent who denies the execution and existence of the document. The petitioners contend that original GPA was returned to the respondent's father in the Sub-registrar's office. No notice is issued to the respondents father to produce the document. The notice does not comply with the requirement of Sec.66 of the Evidence Act. Unless the existence of the document is proved and requirement of Sec.66 of the Evidence Act is complied with secondary evidence cannot be allowed. The trial court has rightly rejected the request of the petitioners to mark the Xerox copy of the GPA as secondary evidence. Therefore, the impugned order does not call for interference.
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10. Accordingly, the writ petition is dismissed. I.A.Nos.1 and 2/2012 do not survive for consideration and accordingly, they are rejected.
Sd/-
JUDGE Pv