Abdul Wahid @ Abdul Hameed vs Anis Ahmed
2011 Latest Caselaw 3555 Del

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

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.

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