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TMI Blog2011 (3) TMI 720X X X X Extracts X X X X X X X X Extracts X X X X ..... gned) and request the High Court to decide the same afresh in accordance with law, as explained hereinabove - As the case has been pending for three long decades, request the High Court to decide it expeditiously - However, it is clarified that any observation made herein shall not adversely affect the cause of either parties. X X X X Extracts X X X X X X X X Extracts X X X X ..... the grounds for reversal of the judgment and decree of the Trial Court. 5. On the contrary, Shri Rajiv Dutta, learned senior counsel appearing for the sole respondent has vehemently opposed the appeal contending that the respondent never executed the power of attorney in favour of his brother enabling him to transfer the suit property. Power of attorney had never been filed before the Trial Court nor had it been proved. The photocopy of the same was shown to the respondent during the time of his cross-examination wherein he has admitted his signature thereon only. The respondent had never admitted its contents or genuineness of the same. Therefore, the power of attorney itself had not been proved in terms of Sections 65 and 66 of the Indian Evidence Act, 1872 (hereinafter called Act 1872) and, thus the question of proceeding further by the Trial Court could not arise. More so, it is not probable that the appellant paid a sum of Rs. 65,500/- instead of Rs. 40,000/- as consideration fixed in the agreement to sell. The agreement dated 25-6-1979 contained clause 11 according to which if the sale deed was not executed, the earnest money of Rs. 5,000/- received by alleged power of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R. Viswanathan, defendant No. 2 in the suit (not impleaded herein), the main issue could be as to whether the power of attorney had been executed by the respondent in favour of R. Viswanathan enabling him to alienate the suit property and even if there was such power of attorney whether the same had been proved in accordance with law. 10. Provisions of Section 65 of the Act 1872 provide for permitting the parties to adduce secondary evidence. However, such a course is subject to a large number of limitations. In a case where original documents are not produced at any time, nor, any factual foundation has been led for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot carry any conviction and the weight of its probative value may be nil." 14. In Madan Mohan Singh & Ors. v. Rajni Kant & Anr., AIR 2010 SC 2933, this Court examined a case as a court of fifth instance. The statutory authorities and the High Court has determined the issues taking into consideration a large number of documents including electoral rolls and school leaving certificates and held that such documents were admissible in evidence. This Court examined the documents and contents thereof and reached the conclusion that if the contents of the said documents are examined making mere arithmetical exercise it would lead not only to improbabilities and impossibilities but also to absurdity. This Court examined the probative value of the contents of the said documents and came to the conclusion that Smt. Shakuntala, second wife of the father of the contesting parties therein had given birth to the first child two years prior to her own birth. The second child was born when she was 6 years of age; the third child was born at the age of 8 years; the fourth child was born at the age of 10 years; and she gave birth to the fifth child when she was 12 years of age. Therefore, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... articularly, as to whether the power of attorney had been executed by the respondent in favour of his brother enabling him to alienate his share in the property. Order XLI, Rule 31 CPC : 18. The said provisions provide guidelines for the appellate court as to how the court has to proceed and decide the case. The provisions should be read in such a way as to require that the various particulars mentioned therein should be taken into consideration. Thus, it must be evident from the judgment of the appellate court that the court has properly appreciated the facts/evidence, applied its mind and decided the case considering the material on record. It would amount to substantial compliance of the said provisions if the appellate court's judgment is based on the independent assessment of the relevant evidence on all important aspect of the matter and the findings of the appellate court are well founded and quite convincing. It is mandatory for the appellate court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final court of fact, the first appellate court mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly) as liquidated damages for breach of contract." Thus, in case of non-execution of the sale deed, the appellant could get the earnest money with damages. 21. So far as the issues of inadequate consideration and rise in price are concerned, both the parties have argued the same at length and placed reliance on a large number of judgments of this Court, including : Chand Rani (Smt.) (dead) by Lrs. v. Kamal Rani (Smt.)(dead) by Lrs., AIR 1993 SC 1742; Nirmala Anand v. Advent Corporation (P) Ltd. & Ors., (2002) 8 SCC 146; P. D'Souza v. Shondrilo Naidu, (2004) 6 SCC 649; Jai Narain Parasrampuria (dead) & Ors. v. Pushpa Devi Saraf & Ors., (2006) 7 SCC 756; Pratap Lakshman Muchandi & Ors. v. Shamlal Uddavadas Wadhwa & Ors., (2008) 12 SCC 67; and Laxman Tatyaba Kankate & Anr. v. Taramati Harishchandra Dhatrak, (2010) 7 SCC 717. 22. In view of the above, as we are of the considered opinion that the courts below have not proceeded to adjudicate upon the case strictly in accordance with law, we are not inclined to enter into the issue of inadequate consideration and rise in price However, the judgment impugned cannot be sustained in the eyes of law. 23. In the facts and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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