Karnataka High Court
Smt Bhagyamma vs Sri R Lokesh on 19 March, 2013
Author: A.N.Venugopala Gowda
Bench: A.N. Venugopala Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 19TH DAY OF MARCH, 2013
BEFORE
THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA
WRIT PETITION NO.32968/2012 (GM-CPC)
BETWEEN:
SMT. BHAGYAMMA
W/O SRI GOVINDA,
AGED ABOUT 41 YEARS,
R/AT GONAMAKANAHALLI,
ANDERSONPET POST,
ROBERTSONPET HOBLI, BANGARPET TALUK,
KOLAR DISTRICT - 563 102. ...PETITIONER
(BY SRI CHANDRA MOHAN J.G. ADV.)
AND:
1. SRI R LOKESH
S/O K V RAVINDRANATH,
AGED ABOUT 29 YEARS,
R/AT NO.41,3RD CROSS, VIRUPAKSHAPURA,
VIDYARANAYAPURA POST,
BANGALORE - 560 097.
2. SMT. R SANDYA, W/O N MOHAN,
D/O K V RAVINDRANATH,
AGED ABOUT 29 YEARS,
R/AT NEAR RAGHAVENDRA,
TOURNING TALKIES, KODAGENAHALLI,
SAHAKARA NAGARA POST,
BANGALORE - 560 092.
2
3. SMT. LAKSHAMMA
W/O LATE K VENKATESH,
AGED ABOUT 76 YEARS,
R/AT NO. 141/8, 4TH BLOCK, 6TH MAIN,
RAJAJINAGAR
BANGALORE - 560 010.
4. SRI MUNIVENKATAPPA
S/O LATE K. VENKATESH,
AGED ABOUT 59 YEARS.
5. SRI AVINASH
S/O MUNIVENKATAPPA
AGED ABOUT 27 YEARS.
6. DIVYA
D/O MUNIVENKATAPPA
AGED ABOUT 25 YEARS
RESPONDENTS 4 TO 6 ARE R/AT
DOOR NO.7/10, 1ST FLOOR, 7TH CROSS,
2ND MAIN, GOVINDARAJA NAGAR,
BANGALORE - 560 040.
7. SRI KEMPANNA
S/O LATE K VENKATESH
AGED ABOUT 59 YEARS.
8. SRI V K PRASHANTH
S/O KEMPANNA
AGED ABOUT 29 YEARS.
9. SMT. KALPANA, D/O KEMPANNA
AGED ABOUT 27 YEARS.
RESPONDENTS 7 TO ARE R/AT
GONAMAKANAHALLI VILLAGE,
ANDERSONPET POST,
ROBERTSONPET HOBLI,
BANGARPET TALUK - 563 115.
3
10. SMT. PUNITHA, W/O RANGESH,
D/O KEMPANNA,
AGED ABOUT 28 YEARS,
YELLAVARA VILLAGE,
KAMADENAHALLI POST
KOLAR TALUK - 563 101.
11. SRI NAGESH
S/O K VENKATESH,
AGED ABOUT 49 YEARS,
R/AT LIEWAS ROAD, COOK TOWN ,
BANGALORE - 560 005.
12. SMT. PADMA, W/O PRABHAKAR,
R/AT 661, 7TH CROSS,
BANDEPPA ROAD, YESHWANTHAPUR,
BANGALORE - 560 022.
13. SMT. UMADEVI
W/O RAMACHANDRA REDDY,
D/O LATE K VENKATESH,
AGED ABOUT 48 YEARS,
R/AT NO.65/3, 4TH MAIN,
GANDHINAGAR, RUNNING PROFESSIONAL
CORRIDOR NEAR SYNDICATE BANK,
BANGALORE - 560 009.
14. SMT. V SUMITHRA
W/O THIRTHE GOWDA,
D/O LATE K VENKATESH,
AGED ABOUT 56 YEARS,
R/AT DOOR NO. 141/B, 4TH BLOCK,
6TH MAIN, RAJAJINAGAR ,
BANGALORE - 560 010.
15. SMT. SHARADA
W/O ASWATHANARAYANA GOWDA,
D/O LATE K VENKATESH,
AGED ABOUT 53 YEARS,
R/AT YELLAVARA VILLAGE,
KAMADENAHALLI POST KOLAR TALUK,
PRESENTLY R/AT NO. 751,
2ND CROSS, FORT,
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KOLAR -563 181.
16. SRI K V RAVINDRANATH
S/O LATE K VENKATESH,
AGED ABOUT 52 YEARS,
R/AT GONAMAKANAHALLI VILLAGE,
ANDERSONPET, ROBERTSONPET HOBLI,
BANGARPET TALUK AND ALSO
R/AT NO. 173, 1ST MAIN,
3RD CROSS, C/O KANTHAMMA AMBEDKARNAGAR,
ROBERTSONPET, KOLAR GOLD FIELDS - 563 122.
17. SRI SYED NAWAB @ BABU
S/O LATE S M SYED GHOUSE,
AGED ABOUT 49 YEARS,
R/AT NO.20, S.N.M. SCHOOL ROAD,
ANDERSONPET, ROBERTSONPET
KOLAR GOLD FIELDS - 563 122.
18. SMT. ATIYA, W/O G SYED NAWAB @ BABU,
AGED ABOUT 39 YEARS,
R/AT NO.20, S.N.M. SCHOOL ROAD,
ANDERSONPET, ROBERTSONPET
KOLAR GOLD FIELDS - 563 122.
19. SRI L ANWAR
S/O ABDUL LATHIEF,
AGED ABOUT 63 YEARS,
CHAIRMAN NOORIE EDUCATIONAL INSTITUTIONS,
ANDERSON PET POST,
KOLAR GOLD FIELD - 563 122.
20. SRI N M THIRTHE GOWDA
S/O N M MADHAIAH,
AGED ABOUT 52 YEARS,
R/AT 141/B, 4TH BLOCK, 6TH MAIN ROAD,
RAJAJINAGAR,
BANGALORE - 560 010.
21. SRI R RAVI
S/O V R RAGHAVACHETTY,
AGED ABOUT 50 YEARS,
R/AT JAIN TEMPLE STREET,
5
ANDERSON PET POST,
ROBERTSON PET HOBLI,
BANGARPET TALUK. ...RESPONDENTS
(BY SRI.VASANTHAPPA, ADV FOR R1 TO R2;
NOTICE TO R3 TO R21 DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET
ASIDE THE ORDERS OF THE ADDL. SR CIVIL JUDGE KGF IN
REJECTING THE IA U/O III RULE 2(3) R/W SEC 151 OF CPC
SEEKING PERMISSION TO PROSECUTE THE CASE THROUGH
HER P.A. HOLDER, DATED 21.8.2012 IN O.S.NO.13/2008 VIDE
ANNEXURE-A.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is defendant No.19 in O.S.No.13/2008 filed by the respondents 1 and 2 in the Court of I Addl. Civil Judge (Sr.Dn.) at K.G.F., to pass a judgment and decree for partition and separate possession. Suit having been contested by filing written statements, after rising of the issues, trial has commenced. Defendant No.19 filed an I.A. dated 19.07.2012 under Order 3 Rule 2(a) r/w 151 of CPC to permit her husband - GPA Holder, to put in appearance and contest the suit. The said application 6 having been opposed, Trial Judge has passed an order of rejection on 21.08.2012. This writ petition is directed against the said order.
2. The suit has been instituted to pass a judgment and decree of partition and separate possession by allotting 1/16th share to the plaintiffs, after holding the alienation in favour of defendants 15 to 20 is not legal, valid and binding on the plaintiffs and for grant of consequential reliefs. Defendant No.19 is a purchaser of a property under a sale deed dated 21.02.2008. I.A. dated 19.07.2012 was opposed mainly on two grounds: (1) non- production of any material with regard to ill-health of applicant and (2) applicant avoiding cross-examination by entering into witness box. The learned Trial Judge having found merit in the objections raised by the plaintiffs, has passed the impugned order.
3. Heard learned counsels of both the sides and perused the writ record.
4. The point for consideration is 7 'Whether the impugned order suffers from material irregularity and warrants interference?'
5. In the background of the facts of the case noticed supra, the impugned order when examined in the light of the ratio of decision, in the case of Smt. Gangavva V/s Arjunsa, ILR 2001 Kar 231, it has to be held that there is a misdirection adopted by the learned Trial Judge, in the matter of consideration of the aforesaid application filed by the petitioner herein. In the case of Smt. Gangavva (supra), a suit was filed to pass judgment and decree of permanent injunction. At the stage of evidence, the plaintiff sought permission to examine a power of attorney holder, which was objected by the defendants. The Trial Court by placing reliance on an order passed by Rajasthan High Court, in the case of Ramprasad V/s Harinarayan, AIR 1985 Rajasthan 198, rejected the prayer of the plaintiff. When the said order was questioned by filing a Civil Revision Petition, considering the rival contentions it has been held as follows:
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"3. The provisions of Order XVIII of C.P.C. only regulate the procedure and manner of order of examination 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 9 aside and the plaintiff is permitted to examine the power of attorney on her behalf."
6. In the case of Man Kaur Vs. Hartar Singh Sangha - (2010) 10 SCC 512, 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 10 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.
(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 recognised 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 V/s Allisab and others, ILR 2006 Kar 3129, with regard to position of 11 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 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 12 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 recognizes agents of the parties through whom the appearance, application and acts may be done and such recognized agent includes the power of attorney holder. The power of attorney holder of a party can depose in a 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 parties is 13 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 such 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.
9. The view which the Trial Court has taken to deny the relief to the petitioner, prayed in the application dated 19.07.2012 is contrary to the ratio of the decisions noticed supra. The Trial Court has not kept in view the provision under section 118 of the Evidence Act. There being an irrational act on the part of the Trial Judge, the impugned order being vitiated is unsustainable. 14
In the result, writ petition is allowed and the impugned order is quashed. Application dated 19.07.2012 filed in the suit by the defendant No.19 stands allowed.
The evidence of GPA Holder of defendant No.19 is liable to be scrutinized and appreciated, keeping in view the observations made supra.
No costs.
Sd/-
JUDGE Ksj/-