Punjab-Haryana High CourtJoginder Singh Son Of Shri Santa Singh ... vs Dalip Singh Son Of Late Sh. Ralla Singh ... on 4 July, 2013Author:K. KannanBench:K. KannanRSA 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 ofRSA 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 theRegistration Actand 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 theRSA No.916 of 1986                                    -3-original.The Registration Actcontains 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 ofSection 62of 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 65of 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 ofRSA No.916 of 1986                                   -4-law.   Secondary evidence is defined underSection 63of 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 Section63. 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 underSection 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*