Karnataka High Court
Smt. Sreedevi W/O Sri B Veerababu vs Shri Dadesugur Pakkirappa S/O ... on 12 July, 2024
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NC: 2024:KHC-D:9729
WP No. 101726 of 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 12TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 101726 OF 2024 (GM-CPC)
BETWEEN:
SMT. SREEDEVI W/O. SRI. B. VEERABABU,
AGED ABOUT 39 YEARS, OCC: HOUSEWIFE,
R/O. BENCH CAMP, K. SUGAR POST,
SIRUGUPPA TALUK,
BALLARI DISTRICT-583121.
...PETITIONER
(BY SRI. S.G. KADADAKATTI, ADVOCATE)
AND:
1. SHRI DADESUGUR PAKKIRAPPA
S/O. SIDDALINGAPPA,
AGE: MAJOR,
OCC: AGRICULTURIST,
R/O. BENCH CAMP, K. SUGAR POST,
SIRUGUPPA TALUK,
BALLARI DISTRICT-583121.
2. SMT. SHANKARAMMA
W/O. DADESUGAR PAKKIRAPPA,
AGE: MAJOR, OCC: HOUSEHOLD,
Digitally
signed by
YASHAVANT
NARAYANKAR
Location: High
R/O. BENCH CAMP, K. SUGAR POST,
Court of
SIRUGUPPA TALUK,
YASHAVANT
NARAYANKAR Karnataka,
Dharwad
Bench
Date:
2024.07.19
12:20:36
+0530
BALLARI DISTRICT-583121.
...RESPONDENTS
(BY SRI. GOUTHAM NETTAR &
SRI. CHANDRASHEKHAR R.P., ADVOCATES FOR R1 & R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT THE
NATURE OF CERTIORARI TO QUASH THE ORDER DATED 16-12-2023
PASSED BY THE CIVIL JUDGE AND JMFC, SIRUGUPPA ON IA NO.IV IN
O.S. NO.15/2022, VIDE ANNEXURE-G BY ALLOWING THE WRIT
PETITION.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
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NC: 2024:KHC-D:9729
WP No. 101726 of 2024
ORDER
1. The petitioner-plaintiff filed an application in I.A.No.4 under Order III Rule 2 read with section 151 of the Code of Civil Procedure, 1908 (for short "CPC") seeking to prosecute the suit through her husband in view of the General Power of Attorney (for short "GPA") executed by the plaintiff. The said application is rejected by the learned Judge.
2. Heard the learned counsel for petitioner and perused the records.
3. The plaintiff has instituted a suit for specific performance of contract. An application was filed under Order III Rule 2 of CPC seeking leave of the Court to permit the plaintiff to prosecute the suit through her husband based on GPA executed by her. The Learned Judge has declined to grant permission on the ground that GPA holder is not acquainted with the transaction as he is neither a party nor a witness to the alleged agreement to sell. This finding prima facie is palpably -3- NC: 2024:KHC-D:9729 WP No. 101726 of 2024 erroneous and contrary to the settled proposition of law. The defendant cannot insist that the plaintiff should prosecute the suit herself. Whether the GPA holder of plaintiff is competent to depose on behalf of the plaintiff has to be tested only after full-fledged trial. If plaintiff intends to prosecute the suit through a GPA holder, she does so at her risk and at her peril. The defendant cannot insist that plaintiff has to personally prosecute the suit. The reasons assigned by the learned Judge suffer from material irregularities. The order passed by the learned Judge is not sustainable. Accordingly, this Court passes the following:
ORDER
i) The writ petition is allowed.
ii) The impugned order dared 16.12.2023 on I.A.No.4 in O.S.No.15/2022 on the file of the Civil Judge and JMFC Siruguppa is set aside and I.A.No.4 is hereby allowed.
iii) The petitioner-plaintiff is permitted to prosecute the suit through GPA holder. -4-
NC: 2024:KHC-D:9729 WP No. 101726 of 2024
iv) In view of disposal of the petition, pending interlocutory applications, if any, do not survive for consideration and are disposed of accordingly.
Sd/-
JUDGE YAN List No.: 1 Sl No.: 13