Punjab-Haryana High Court
Joginder Singh Son Of Shri Santa Singh ... vs Dalip Singh Son Of Late Sh. Ralla Singh ... on 4 July, 2013
Author: K. Kannan
Bench: K. Kannan
RSA No.916 of 1986 -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.916 of 1986
Date of Decision.04.07.2013
Joginder Singh son of Shri Santa Singh and others .....Appellants
Versus
Dalip Singh son of late Sh. Ralla Singh and others .......Respondents
Present: None for the appellants.
Mr. G.S. Virk, Advocate for
Mr. G.S. Nagra, Advocate
for respondent Nos.25, 27 to 29 and 31.
None for other respondents.
CORAM:HON'BLE MR. JUSTICE K. KANNAN
1. Whether Reporters of local papers may be allowed to see the
judgment ? No
2. To be referred to the Reporters or not ? No
3. Whether the judgment should be reported in the Digest? No
-.-
K. KANNAN J.(ORAL)
1. Notice has been ordered in the appeal but no substantial questions of law had been framed. Learned counsel has served a memorandum containing the substantial questions, which he proposes to raise. I have examined the same and after going through the records, I am of the view that the following substantial question of law alone arises for consideration:-
"Whether the lower Appellate Court was justified in reversing the judgment of the trial Court by placing reliance on a photocopy of the alleged original of power of attorney (D-1) in preference to a true copy of the power of attorney issued by the Registrar's office and spoken to by an official from the Registrar's office (P-2) ?"
2. There is no representation for the appellant. The case is of the year 1986 and the case has been published in the board for notice of RSA No.916 of 1986 -2- advocates and there appears no justification for lack of appearance on behalf of the appellant. The counsel for the respondent is present and I proceed to examine the case on the basis of records available and pass the following judgment.
3. The issue for consideration in the case was that the 17th defendant had held the power from the original owner of the property to grant sale to other contesting defendants. The validity of the sale was dependent on whether 17th defendant had a power to act on behalf of the original owner to effect the sale or not. The plaintiffs were relying on Ex.P1 and P2 purporting to be the power of attorney executed by the owners in favour of the 17th defendant to contend that he had no power to sell. Ex.P1 was a type written copy of the alleged power of attorney said to have been issued by the Registrar's office and Ex.P2 was a photocopy of the registration copy of the power of attorney. The plaintiffs were relying on these two documents to contend that there existed no power to the 17th defendant to enter into a transaction of sale and therefore, the purchases on the basis of which the respondents entered the defence could not be acted upon. The defendants' contention on the other hand was that Ex.P1 did not contain any seal or certification that it was a true copy issued under the Registration Act and its relevant Rules and Ex.P2 was a photocopy of a copy which is not secondary evidence in the eye of law.
4. The Appellate Court examined Ex.P1 with reference to the evidence of the official from the Registrar's office. The witness admitted that the document did not contain any certification or seal of the Registrar's office and that it was merely type written from the RSA No.916 of 1986 -3- original. The Registration Act contains provisions detailing the manner in which the official records are kept and the procedure for issuing copies of the originals. Article III of Punjab Table of Registration Fees prescribes a fee for supply of certified copy of a document registered and the Registration Manual published in the respective States provide for preparation and certification of copies.
5. When there was an admission that the document had not been prepared in the manner required under the law, the plaintiff could not have relied on Ex.P2 as a secondary evidence. Ex.P2 also was a copy of the photocopy and in terms of Section 62 of the Indian Evidence Act, photocopy of the copy is not secondary evidence at all. The contesting defendants, however, gave a justification for non-production of the original by saying that the original had been held by the power of attorney himself and he had died at the time of trial and the original was, therefore, not available. Ex.D1 was produced by the defendant as a copy taken from the original and asserted that it was a photocopy that ensured a mechanical reproduction of the original. The trial court judgment itself records the fact that PW2 has given evidence to the effect that Ex.D1 produced by the defendant was an exact reproduction of the original or what he has actually scribed. Oral evidence of document claimed in the original is also secondary evidence. Therefore, there was appropriate justification to rely on Ex.P1 as a true copy. Section 65 of the Indian Evidence Act details several instances wherein secondary evidence could be produced and one of the circumstances is the loss of original. All that was required to be seen was whether the document produced as a photocopy conformed to the requirement of RSA No.916 of 1986 -4- law. Secondary evidence is defined under Section 63 of the Indian Evidence Act and it includes a copy made from the original by a mechanical process which in themselves ensured the accuracy of the copy and the copy is compared with such copies. Copies made from or compared with the original are also secondary evidence as per Section
63. A copy which was said to have been compared with original and which was vouched by the scribe of the document as an exact replica of the original were sufficient proof of the secondary evidence and if the justification for production of the secondary evidence was available by proof of loss of the original as required under Section 65, the reliance made by the Appellate Court to find that there existed a power to sell the property and that consequently, the assertions by the contending defendants that they have purchased the property was well-founded.
6. The specific question of law raised regarding the validity of the D1 as whether it was a valid secondary evidence and whether Ex.P1 and P2 could be relied on as secondary evidence are answered in the light of the above and I hold that Ex.P1 and P2 are not documents which are admissible but Ex.D1 was. Resultantly a transaction of sale by the 17th defendant on the basis of a power that he had through the power of attorney was valid and the plaintiff was required to be non-suited that was so done correctly by the Appellate Court.
7. The judgment of the Appellate Court is confirmed and the second appeal is dismissed.
(K. KANNAN) JUDGE July 04, 2013 Pankaj*