Karnataka High Court
Sri Basavalingegowda vs Smt Rathna on 8 March, 2013
Author: A.N.Venugopala Gowda
Bench: A.N.Venugopala Gowda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 8th DAY OF MARCH, 2013
BEFORE
THE HON'BLE MR. JUSTICE A.N.VENUGOPALA GOWDA
WRIT PETITION NO.7723/2013 (GM-CPC)
BETWEEN:
1. Sri Basavalingegowda,
S/o. late Lakkegowda,
Aged about 59 years,
R/at Byadarahalli Village,
Bindiganavile Post & Hobli,
Nagamangala Taluk.
2. Smt. Renuka,
W/o. Basavalingegowda,
Aged about 50 years,
R/at Byadarahalli Village,
Bindiganavile Post & Hobli,
Nagamangala Taluk.
... PETITIONERS
(By Sri Sharath S. Gowda, Adv.)
AND:
1. Smt. Rathna,
W/o. N.M. Ramesh,
Aged about 38 years,
R/o. Hemagiri Road,
Mutturaswamy Layout,
K.R. Pete Town,
Mandya District - 571 401.
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2. Sri Gunde Gowda,
S/o. late Lakkegowda,
Aged about 57 years,
R/at Byadarahalli Village,
Bindiganavile Post & Hobli,
Nagamangala Taluk - 571 432.
3. Sri Suresh,
S/o. late Lakkegowda,
Aged about 45 years,
R/at Byadarahalli Village,
Bindiganavile Post & Hobli,
Nagamangala Taluk - 571 432.
... RESPONDENTS
This writ petition is filed under Articles 226 and 227
of the Constitution of India praying to quash the order
dated 13.11.2012 passed by the Civil Judge and JMFC,
Nagamangala in O.S.No.47/2008 in allowing the I.A. filed
by the plaintiff under O III Rule 2 of CPC vide
Annexure-A.
This petition coming on for preliminary hearing this
day, the Court made the following:
ORDER
The respondent No.1 has filed O.S.No.47/2008 in the Court of Civil Judge & J.M.F.C., Nagamangala, against the petitioners and respondent Nos.2 and 3, to pass a Judgment and Decree of partition and separate possession in respect of the plaint schedule properties by stating that they are ancestral and joint family properties and are liable 3 for partition. The petitioners, who are defendant Nos.2 and 3 in the suit, have filed joint written statement and an additional written statement contending that the marriage of the plaintiff was performed in the year 1999 and at that time cash of `1,50,000/- was given to her husband by way of dowry and 250 grams of gold jewelry was given to the plaintiff, in lieu of her right in the family properties and that they have incurred expenses of more than `2,00,000/- for the marriage of the plaintiff and hence, she is not entitled for the relief prayed in the suit. Based on the pleadings of the parties, issues have been raised. When the suit was at the stage of trial, the plaintiff filed I.A.No.8, under Order III Rule 2 of CPC, seeking permission to appoint her husband Sri N.M. Ramesh, as her Special Power of Attorney, to prosecute the case for and on her behalf, on the ground that she is suffering from prolonged illness and is unable to attend the Court to conduct the case effectually. The defendant Nos.1 to 3 filed a joint statement of objections and contended that the plaintiff is only well aware of the family status and the 4 properties, she alone is competent to depose and not her attorney-husband and hence, she cannot be permitted to prosecute the suit through a power of attorney holder. Upon hearing of the learned advocates appearing for the parties, the learned Trial Judge has allowed I.A.No.8 and has permitted the plaintiff to prosecute the case through her power of attorney holder. Assailing the said order, the defendant Nos.2 and 3 have filed this writ petition.
2. Sri Sharath S. Gowda, learned advocate, contended that when the plaint averment s are analyzed, it is crystal clear that some of the facts are purely within the personal knowledge of the plaintiff alone and hence, she alone is a competent to depose in the suit and that her husband, who is a power of attorney holder having no personal knowledge of the facts and circumstances that have transpired at the time of the marriage of the plaintiff, cannot be permitted to prosecute the suit on behalf of the plaintiff. He submitted that the objections filed to I.A.8 has not been properly considered by the Trial Judge and on 5 account of misdirection adopted the impugned order has been passed which, if allowed to stand, would cause substantial injury to the defendants in the suit. He placed reliance on the decision of the Apex Court in the case of Man Kaur V/s Hartar Singh Sangha, (2010) 10 SCC 512.
3. Perused the writ record. The point for consideration is, "whether the impugned order is illegal?"
4. The suit is one of passing a Judgment and Decree of partition and separate possession in respect of the plaint schedule properties. The relationship of the parties to the suit is not in dispute. The plaintiff has filed I.A.8 under Order III Rule 2 of CPC and prayed to permit her to prosecute the suit through the power of attorney holder - her husband.
5. In the case of Smt. Gangavva V/s Arjunsa, ILR 2001 Kar 2628, the plaintiff instituted a suit to pass a Judgment and Decree of permanent injunction, restraining the defendants from interfering with the suit schedule 6 property. At the stage of evidence, the husband of the plaintiff, as power of attorney holder, requested to examine him on behalf of the plaintiff, which was objected by the defendants. The Trial Court after considering the arguments of both the sides, placing the reliance on an order passed by Rajasthan High Court, in the case of Ramprasad V/s Harinarayan, AIR 1985 Rajasthan 198, rejected the request that the husband of the plaintiff cannot be examined for and on behalf of the plaintiff, as a substitute of plaintiff. Said order was questioned by the plaintiff by filing a Civil Revision Petition. Considering the rival contentions and a decision of Gujarath High Court, in the case of Parikhl Amratlal Ramanlal Trustee and Administrator of Sanskrit Pathasala Institution and others Vs. Rami Mafathlal Giridharilal and others- AIR 1983 NOC 108, (Gujarath) with regard to the provisions under order III Rule 2, Order XVIII of CPC and S.118 of the Evidence Act, it has been held as follows :-
"3. The provisions of Order XVIII of C.P.C. only regulate the procedure and manner of order of examination 7 of the witness. As a rule, firstly the party to the proceedings has to examine himself. If for any valid reason it is not possible for the party to examine himself with the permission of the court a witness on behalf of such party could be examined and out of term the party can examine himself further, it is also not necessary in law that always the party to the proceedings should examine himself. The requirement of law insists only that the party who puts forth his case should prove the material facts set up. A party without examining himself can as well establish his case if possible by examining the witnesses who are competent to testify. However, in cases where there is onus placed on the party to discharge and if the facts required to be deposed are necessarily to be testified by the party in person, in such situation, however, such a party runs the risk of facing adverse inference for non examination. Otherwise, it is also open for the party to give evidence through the power of attorney and such evidence would be a valid substituted evidence of the plaintiff. Ultimately, appreciation of the probative value of the evidence and competence of the person testified is a matter that is to be tested in the course of the cross examination. Therefore, respectfully I am unable to agree with the view of the Rajasthan High Court cited above and I am inclined to follow the view of Gujarath High Court. In that view of the trial Court is liable to be set aside and the plaintiff is permitted to examine the power of attorney on her behalf."8
6. In the case of Man Kaur (supra), with regard to legal position, as to who should give evidence in regard to matters involving personal knowledge, Apex Court has summarized as follows :-
"18. We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge:
(a) An attorney-holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit.
(b) If the attorney-holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney-holder alone has personal knowledge of such acts and transactions and not the principal, the attorney-holder shall be examined, if those acts and transactions have to be proved.
(c) The attorney-holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge.
(d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney-holder, necessarily the attorney-
holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorized managers/attorney-holders or person residing abroad managing their affairs through their attorney-holders.
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(e) Where the entire transaction has been conducted through a particular attorney-holder, the principal has to examine that attorney-holder to prove the transaction, and not a different or subsequent attorney-holder.
(f) Where different attorney-holders had dealt with the matter at different stages of the transaction, if evidence has to be led as to what transpired at those different stages, all the attorney-holders will have to be examined.
(g) Where the law required or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his "state of mind" or "conduct", normally the person concerned alone has to give evidence and not an attorney-holder. A landlord who seeks eviction of his tenant, on the ground of his "bona fide" need and a purchaser seeking specific performance who has to show his "readiness and willingness" fall under this category. There is however a recongnised exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or "readiness and willingness". Examples of such attorney-holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad."
7. In the case of Bhimappa and Others Vs. Allisab and others - ILR 2006 KAR 3129, with regard to position of law about competency of a person to testify, it has been held as follows:
"15. Therefore the contention that the evidence on record cannot be taken into consideration to declare the title of the plaintiff has no substance. The suit is one for 10 declaration of title and for possession. In a suit for declaration of title, the plaintiff has to establish his title . Title cannot be established by his personal knowledge. It has to be established by producing documents under which he is claiming title, most of the time under a registered document. In so far as documents are concerned Section 61 of the Evidence Act mandates that the contents of documents may be proved either by primary or secondary evidence. Primary evidence means the documentary evidence produced for inspection of the Court. Therefore, when a particular fact is to be established by production of documentary evidence there is no scope for leading oral evidence and there is no scope for personal knowledge. What is to be produced is the primary evidence, i.e., document itself. The said evidence can be adduced by the party or by his Power of Attorney Holder. Production of the document, marking of the document is a physical act which does not need any personal knowledge. Even proof of the document is by examining the persons who are well versed with the document or by examining the attesting witnesses or the executant of the document. Again the personal knowledge of the plaintiff has no role to play. In those circumstances it is open to the plaintiff to examine the Power of Attorney Holder, produce the documents through the Power of Attorney Holder, mark the same and examine witnesses to prove the said document if it is denied. Therefore, the contention that the evidence of a Power of Attorney Holder cannot prove the case of the plaintiff in all cases is not correct and that is not the law laid down by the Supreme Court in the aforesaid judgment. In the instant case, the registered sale deed is produced and the same is proved by examining the executant of the said document, and it is on the basis of the said evidence the suit is decreed, which cannot be found fault with."
8. Order III Rule 2 of CPC provides the recognized agents of the parties through whom the 11 appearance, application and acts may be done, which includes the power of attorney holders. The power of attorney holder of a party can depose in the case. The Court before acting on such evidence, should carefully scrutinize the evidence. Ultimately, it is for the Court to be satisfied from the material on record, whether case pleaded by the party has been proved or not. If the case pleaded by the party is purely personal, the evidence of power of attorney holder on those aspects would be in the nature of hearsay evidence and such evidence carries no weight and the Court would be justified in not acting on such evidence. However, the evidence required to be adduced in the case is something which is within the personal knowledge of the party and the said evidence is also within the personal knowledge of the power of attorney holder deposing before the Court, if such evidence proves the case pleaded by the party, the Court can act upon such evidence and grant relief to the party and not otherwise.
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9. In view of the ratio of the decision in the case of Smt. Gangavva (supra), the order passed by the Trial Court, impugned herein, cannot be termed as either irrational or illegal. The evidence of power of attorney holder when adduced is required to be appreciated by the Court, by keeping in view the observations made supra.
In the aforesaid view of the matter, I do not find justification to entertain this writ petition. Hence, writ petition is rejected, subject to the observations made supra.
Sd/-
JUDGE Ksj/-