R-6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.310/2008
% Date of decision: 26th July, 2011
ABDUL WAHID @ ABDUL HAMEED ..... Appellant
Through : Mr. Rakesh Kumar and
Mr. Maneesh Arora, Advs.
versus
ANIS AHMED ..... Respondent
Through : Mr. M. Mohsin Israily, Adv.
CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA
1. Whether Reporters of Local papers may
be allowed to see the Judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be
reported in the Digest?
JUDGMENT (ORAL)
RFA No.310/2008 and CM No.14352/2008
1. The appellant has challenged the judgment of the learned Trial Court whereby his suit for partition had been dismissed on the ground that the appellant had failed to show that the suit property belonged to Salma Bibi.
2. The learned counsel for the appellant submits that during the pendency of the appeal, the appellant came to know that an irrevocable registered General Power of Attorney was executed in favour of late Salma Bibi on 15th January, 1974. The appellant has obtained the certified copy of the said General Power of Attorney RFA No.310/2008 Page 1 of 3 and placed the same on record along with the application under Order XLI Rule 27 of the Code of Civil Procedure. The appellant is seeking permission to prove the said document.
3. The learned counsel for the appellant submits that the General Power of Attorney dated 15 th January, 1974 is a registered document and the appellant could not obtain the same despite due diligence before passing of the impugned judgment.
4. The learned counsel for the respondent submits that the General Power of Attorney dated 15 th January, 1974 is not relevant for determining the issues between the parties as the executor as well as the attorney in the said documents have expired.
5. The learned counsel for the appellant submits that the General Power of Attorney dated 15 th January, 1974 was executed for a consideration and is, therefore, irrevocable under Section 202 of the Indian Contract Act. The learned counsel for the appellant refers to and relies upon Asha M. Jain v. Canara Bank, 94 (2001) DLT 841 (DB), Sparsh Builders Pvt. Ltd. v. Maharishi Ayurveda Products Pvt. Ltd., 163 (2009) DLT 411, Seth Loon Karan v. I.E. John, AIR 1969 SC 73, Harbans Singh v. Shanti Devi, 1977 RLR 487, Prem Raj v. Babu Ram, 1991 RLR 458, Ramesh Mohan v. Raj Krishan, 1984 PLR 211, H.L. Malhotra v. Nanak Jai Singhani, 1986 RLR 89, Shikha Properties (P) Ltd. v. S. Bhagwant Singh & Others, 74 (1998) DLT 113 and Kuldip Singh Suri v. Surinder Singh Kalra, 76 (1998) DLT
232. RFA No.310/2008 Page 2 of 3
6. In the facts and circumstances of this case, CM No.14352/2008 is allowed and the appellant is permitted to prove the General Power of Attorney dated 15th January, 1974. Since the General Power of Attorney dated 15th January, 1974 is relevant for determining the real issues between the parties, the impugned judgment and decree is set aside and the case is remanded back to the learned Trial Court who shall record the additional evidence of the appellant to prove the General Power of Attorney dated 15th January, 1974. The learned Trial Court shall thereafter provide an opportunity to the respondents to lead evidence in rebuttal.
7. After recording the additional evidence of the parties, the learned Trial Court shall give a fresh decision on merits after hearing both the parties.
8. Both the parties shall appear before the learned Trial Court on 28th September, 2011 when the learned Trial Court shall fix the date for recording of the additional evidence of the appellant.
9. All pending applications stand disposed of.
10. The LCR be sent back immediately through a special messenger.
J.R. MIDHA, J JULY 26, 2011 mk RFA No.310/2008 Page 3 of 3