M.L. Jain, J.
1. This revision is directed against the order of the learned Munsif and Judicial Magistrate, Phalodi dated 19-7-75.
2. The respondent Sunderlal and two others filed a suit against the petitioner Chandra Dutta for recovery of arrears of rent and eviction. In the notice dated 15-12-75, terminating the tenancy, nr mention was made of the rent note. In the plaint that was presented on 4-8-73, it was mentioned that the rent note was not available inspite of search. In the list of documents it was stated that the rent note will be produced when discovered. Upon a direction by the court, the plaintiff gave the particulars as respects the scribe, the (sic) witnesses and the stamp vendor. He also applied for permission to lead secondary evidence. It was objected to by the defendant on the ground that the plaintiff must first be required to prove the existence and loss of the document before he could be allowed to lead secondary evidence.
3. The learned trial Judge held that the requirement Section 65 of the Evidence Act is that the court should be prima facie satisfied that the document existed and was lost, thereafter it can be proved what hat document was and what it contents woe. The learned trial court further felt satisfied that prima facie there were grounds to believe that the rent note did exist and was lost. He, therefore, permitted the plaintiff to lead secondly evidence.
4. When the plaintiff began his evidence, he himself did not appear in the witness box but one Prayagdas entered the witness box. He stated that plaintiff Sunderlal was his uncle and he holds the power of attorney Ex. 1 from him. At this stage, the counsel for the defendant objected that the power of attorney does not authorise the witness to tender evidence on behalf of the defendant. The learned trial court objected this objection holding that para No. 1 of the power of attorney spells out an implied authority to give evidence on behalf of the plaintiff.
5. Aggrieved by these orders the present revision has been filed by the defendant. It was urged that the defendant has been in possession for as many as 40 years and there has been to rent note executed by him. Unless existence, loss and search of the rent note is proved, the plaintiff should not have been allowed to lead secondary evidence when the scribe, the witnesses & the stamp vendor are all dead. Prayagdas should not be allowed to depose as attorney because in case the attorney is found to prevaricate, the plaintiff shall be able to escape prosecution by this device.
6. A revision under Section 115 CPC lies to this Court only it there is any illegality or irregularity in the exercise of jurisdiction. I do not find that the errors pointed out pertain to the exercise of jurisdiction. The learned trial come had the jurisdiction to decide both the questions and it could decide them either right or wrongly. If it has interpreted the power of attorney Ex. 1 to include the power to give evidence, then no interference at this stage is possible. Moreover, the power of attorney can be given only to act in place of the principal To give evidence is not acting and therefore no delegation in this sphere is possible. Prayagdas was a witness but was sought to be stopped at the very there should and prevented from deposing further. To me mind this could not be permitted. It was only when he deposed any thing further which was hearsay or otherwise irrelevant, then the defendant could have raised an objection and that too subject to the decision of the trial court. The learned trial court was therefore absolutely right in rejecting the objection of the defendant in this respect. As regards the permission to give secondary evidence, the learned munsif has stated that he is as satisfied by the affidavit produced that the instrument of rent did exist and was actually, lost. There is no ground for interference in this matter also, The matter of satisfaction whether the document was not available in spite of search is that of the trial Judge and it is not the stage when the exercise of such discretion can be interfered with in revision. The plaintiff will still have to show by reliable evidence that a document was executed and what its contents were. Merely because the scribe, the attesting witnesses and the stamp vendor all are dead, it can not be said that no document as alleged could ever have existed.
7. I, therefore, see no force in this revision and it is hereby rejected. No order as to costs.