Karnataka High Court
M/S Up State Handloom Corporation Ltd vs Smt S Prabhavathi on 26 March, 2012
Author: Anand Byrareddy
Bench: Anand Byrareddy
INTHETHGHCQURTOFKARNATAKAAT»f}T7
BANGALORE T' _ ., _,
DATED THIS THE 26T>"_ DAY 01? MARgHeTT20T1V2V
' BEFflR$ . T
THE EI9&I{J[l)'.IAI:}{I'f;fii:S#I;?wf.§§g€$.'AL1:d.f\/T§%;gIl§
BETWEEN: i"-V'.'fia
1. M/s. UP St2;te:Hand1Q'ombCQrpQ1=atiQn' '
Limited, aeorrgpany_fegié1eVred_V
Under C'0Tnp'a.ni'e's3'..Act;,}.,_ __ d' V_ V '
Having its. Vregié,-_:t?eree.i_ odfficde'-at: H _
Kabi'Td'Bi'1av§'an, Cidalefnfhent R'o'ad,
Kaf1pur_--=2O8VG'Q2V';T» '
2. M/s.;U.P_.Hanc1190mes,._.
N0.17,~..59"T' Cross"; ,.
Bashyarfi'~Citc]e,'V--.
"Sf" Block, Ram; Nagar,
<Béngakne----560CHO.
awy
:BQthv.repfes_eI1ted by its
._ "'.--QffiCeTjI.nchafge
A Charxdra Pal Sankhwar,
S/0.Late Budhoo Sankhwar,
Aged about 56 years. ...APPELLANTS
Pradeep H.S., Advocate)
Wot gma. m-37 F\b/ca, Acivocaii)
E
AND:
Smt. S.Prabhavathi,
W/o. S.Manjunath, I
Aged about 61 years,
No.219, 3" Block, .
III Stage, Basaveshwar Nagar,
Bangalore -- 560 079. . . RESPONDENT
(By Shri. M.Ramakrishna_,fAdV'.ocate M.T.Nanaiah and Associates for Caveator / Retsponderit This Regula_r:First__Appeal is iiled,under Section 96(1) of Code of Ciyil Procedi1re,._l908., against the judgment and decree dated 28.lOI_20}:l'_passed 4ih5.'Q.S;'No.5896/2008 on the file of the XXV Add.i..tioI;al Ci:t,y..Ci»Vi1-Judge,Bahgalore, decreeing the suit for thezvejectment. --
This Appealicomgihg for Admission, this day, the court delivered the following:
..... ..I'UD GM ENT I Vi a."l§:arned counsel for the appellant. if 'appellant was the defendant before the Trial Court." suit was filed for ejectment and has been decreed the appellant. The appel1ant's defences were manifold. ~~-Primarily, it was contended that the appellant was carrying on a manufacturing process andfiwerefore, the precondition for a suit for ejectment, of six months' notice, was not 4' Secondly, it was contended that the'" ll within the meaning of Article 12 oi'the'.l_AConslti'tution and therefore, a statutory notice._§is~...contemplatedlundei'HSection " ii 80 of the Code of Civil P;__rocedur_e.,:ll'908',..fhereihattergprleferred to as the, 'CPC', for brevity'):'was-.no.t'issued:l5e--fore filing the suit and therefore, the. suit .,f§i:_'noncompliance with the mandate j: it was contended that the "suit through a Power of Attorney V arid that a_s impermissible.
ln'"'~thi's .reigard_,l't'he learned counsel would seek to .,_lth2_1t, halving-«tregard to the activity in which the A appellant pen-gaged, it was certainly a manufacturing process andisecondly,insofar as the contention that the appellant was State,.,clar1not be in dispute since it is a State Government of V' .. Uttar Pradesh Undertaking. Thirdly, he would place reliance on judgment of the Apex Court in the case of Man Kaur (Dead) 6 by legal representatives vs. Hartar Singh Sang/"Ia SCC 814), wherein the Supreme Court, after . various circumstances, has summarised the positiofn_~as"wto'*wi1o should give evidence in regard to mattetrs..:involving personals knowledge, and has expounded' as follov./hsi:*..
"l2. We ,.--.may *s_ummaris--e ./for convenience, the position :.to"'-whol -should give evidence in regardV~-t0_fmat~te1=~s involviyrig personal knowl6Ci1igei:i:;;jiii.y-' h'Oild'eir whovhias signed the plaint ii and suit, but has no personal ,,}4,no\vvledge"Aiofthetransaction can only give " form'-al_i'evide'nce about the validity of the V V 1 power of attorney and the filing of the suit. _ attorney holder has done any act or any transactions, in pursuance of the 'power of attorney granted by the principal, he 1 may be examined as a witness to prove those acts or transactions. If the attorney holder alone has personal knowledge of such acts and (C)
(d) transactions and not the principal, the at.t_ori'iey:l'iiii holder shall be examined.,~if»..thosée transactions have to be provyedgf A. The attorney holder; cannot'..deposest.o9rAgiye evidence in lace of hisprinci at for _the"actsi done by the ..principal--. Horii"-transactions"V or dealings of the principal alone has personal _know1c,dge';; V i V Wherenthe. principal at, no.j_v~point" of time had or dealt with or participated V ____ in'the7i.;:trarisactiion" has no personal l_<n.oiVyl'edge*Vof..tlie,.___transaction, and where the " entire' .tran,sactio_n"*'rias been handled by an attcrriey.sh-olderfnecessarily the attorney holder al_oneiican.....g1ve evidence in regard to the "~tr'anisa.ction. This frequently happens in case of carrying on business through "authorized managers/attorney holders or ii' persons residing abroad managing their affairs through their attorney holders.
Where the entire transaction has been conducted through a particular attorney holder, 5 (D
(g) the principal has to examine that :_. ' holder to prove the transaction, andu_"'no't~wi./La _ different or subsequent attorney 'holder.-:' -- Where different attorney holders had , , ii i A the matter at different "stages of tihetrans'acti«0tnV, if evidence has to be ledas to what._ttra'nspigred at those different _''stages,;._ all-_the attorney holders will have to Wherevthe lavwa-re_quires aor contemplated the plaigitiffggor other "pxarty.:tox'"a--------proceeding, to eistab_:l4i's_hf" vvith reference to l1isy:"jstate§:,;0f mjrnd' or""'co'nduct', normally the 'person"§oncerned"'alone has to given evidence if and not an"attor.riey' holder. A landlord who . category.
if exception to this requirement.
-- . seeks eviction of his tenant, on the ground of his 'bona""fide' need and a purchaser seeking performance who has to show his 'V'i".'reaL;liness and willingness' fall under this There is however a recognized Where all the affairs of a party are completely managed, transacted and looked after by an attorney 7 (who may happen to be a close member), it may be possible to accept the: H evidence of such attorney even._with reference"
to bona fides or 'readiness andwilling-ness"; Examples of such .att_orney"..vholders»"ii'arei:4_va husband/wife exclusiveilyiyiirnanagiing: the:.'.=affa_irsii of his/her spouse, a .vsoin/d.aut,filrter e)i<icl't'1si\'/'ely managing the affairs' infirm parent, ta father] lmanagin g the4.a~ffair;s'i'Q_f a Sonldaughter abroad."
And thieolearned "seek to place reliance on the above to co'1itehd_that'~._the"iPower of Attorney Holder in the i'-.pres--eint 5../Cf/186 on hand,"'Wias not competent to tender evidence on behalf of«trheiiplaintiff. It is these primary contentions on which the"«l.rearned.counsel would seek to urge the appeal for admission would further submit that the appellant has a statutory right i"0:fi'appeal under Order XLI of the CPC and therefore, as a is wmatter of course, the appeal should be admitted to file and the record before the trial court, called for. 6 9 as the contention that a Power of Attorney Holder was not competent to prosecute the suit for ejectment, evenl:'fr.oni'vv.a reading of the principles laid down in the judgmentiof Court referred to hereinabove, there isnoin1pedirneiit,""'Fhe, Power of Attorney Holder in the _instantcase neesidignot have had any detailed knowledge of suit for ejectment, when there no issuelias regards the jural relationship exc.ept'_o»n the appellant was engagehdtiii fl the absence of any materialin that a Power of Attorney Holderlwas -tender evidence, shall not apply to the case ontharid. lH_e iwoulpd' further point out that insofar as the cofltentjoin that there...was non-compliance with Section 80 of Procedure, 1908, is concerned, there is a differenceibewtween the definition of "State" for the purposes of Articl.e,__il2 of the Constitution of India and the State if -..gGov.e5rnment or the Union of India, as contemplated under the " The appellant being a company incorporated under the K 10 'E Companies Act, may be an instrumeailtaliity of State .for.pu_rposes« of Article 12. At the same time, it__ca'n_not bepharacterisved3 either as the State Government'-orthe Union of "Hence, if Section 80 would not beypapplixc-abl.e';\. submits that insofar as the counsel is concerned, the appellant is a:Coiporalti'oIi::lanld no difficulty in finding further pointed out that the __Tri'al,:::'C;ou:Art_l three months' time notwitlhsta-ndingllLha~t,:tl1ere--iiitias.'adecree for ejectment. And that period haying evxpir_eld,.anyffurther time being granted, would be a lar§_gess.e conferred on the appellant, without there being any ,' such .aVa.vilable either in law or in contract. Hence, he who-ul'd the appeal be rejected at the threshold. . "cotlnsellfb)rnthkeeSa(p[$elfa1h1f1Stazilcflsie trlé%oE%§lS% id)uIldOEeth§al]l%%lmf%(i °.and°the appeal should be considered for admission, is not a 0, V " "privilege available to the appellant. Though a right is conferred 6 11 in filing the appeal, the discretion whether to adrnit' an ~ to reject the same, is of this Court .... .. in vi_e§v"'i7--f'_':the'V a'b.ovg circumstances and contentions, this Court'is~'of'the~opinidn._th%1L' the respondent is justified in crintendingthat theV'vgio;u.nds urged in the present appeal do not meriticonsiderationii 0 '0
6. Thoughit not"for:t:his' time to quit and the appellant which is a State not put to loss and hardship on eiectment, it would be in the interestof_j'ustiCe._if is afforded to the appellant, even if it is a' Cporporatilonjlto quit and deliver vacant possession Of._Ehép.ran1iSeS. .....
Arccoirdingly, the appeal stands rejected. However, the appellant is granted time till 30.04.2012 to quit and deliver va_C_ant possession, of its own volition. If the appellant does not 6 12 do so, it is open for the respondent to take apprqpriate measures, in law.
sd! ifjj 1UDGE KS