Karnataka High Court
Sri Hemachandra N vs The Institute For Technology on 6 October, 2023
Author: S.G.Pandit
Bench: S.G.Pandit
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NC: 2023:KHC:36375
WP No. 22366 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S.G.PANDIT
WRIT PETITION NO. 22366 OF 2023 (GM-CPC)
BETWEEN:
SRI HEMACHANDRA N
S/O LATE NARASAPPA REDDY,
AGED ABOUT 54 YEARS,
RESIDING AT NO. 82,
VISMI VILLA, ANUGRAHA LAYOUT,
BILEKAHALLI, BANNERAGATA ROAD,
BENGALURU-560076.
...PETITIONER
(BY SRI. RAJESWARA P N, ADV.)
AND:
1. THE INSTITUTE FOR TECHNOLOGY
AND MANAGEMENT
SITUATED AT BEHIND MEENAKSHI TEMPLE,
BANNERAGATTA ROAD,
Digitally signed by
A K CHANDRIKA BENGALURU-560076,
Location: High RESISTERED TRUST ACT,
Court of Karnataka
REPRESENTED BY ITS TRUSTEES
SRI. SRIKUMRA,
S/O RAMAMOORTHY,
AGED ABOUT 52 YEARS,
WORKING AT ITM,
BEHIND MEENAKSHI TEMPLE,
BANNERAGATTA ROAD,
BENGALURU-560076.
2. SRI.P. V RAMANNA
S/O P V CHALAPATHI,
AGED ABOUT 83 YEARS,
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NC: 2023:KHC:36375
WP No. 22366 of 2023
3. SMT. P. LALITHA
W/O P.V. RAMANNA,
AGED ABOUT 76 YEARS,
RESPONDENT NO.2 AND 3 BOTH
ARE RESIDING AT NO.601,
6TH FLOOR, CENTRE POINT BUILDING,
18TH MAIN, CHEMBUR
MUMBAI-400071.
4. SRI.H.M. NAGARAJ
S/O LATE MUTHAPPA REDDY,
AGED ABOUT 62 YEARS,
5. SMT. R. JAYALAKSHIMI
W/O H.M. NAGARAJ,
AGED ABOUT 59 YEARS,
6. SRI.VIVEK REDDY
S/O H.M. NAGARAJ
AGED ABOUT 40 YEARS,
RESPONDENT NO.4 TO 6 ARE
R/AT NO.169/2, 18TH A CROSS,
J.P NAGAR, 3RD CROSS,
BENGALURU-560078.
...RESPONDENTS
(BY SRI ARUN PRADESH E., ADV. FOR R1 TO R3
V/O DATED 06.10.2023 NOTICE TO R4 TO R6 ARE D/W)
THIS PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE
ORDER DATED 11.08.2023 PASSED ON APPLICATION FILED
UNDER ORDER III RULE 2 R/W SECTION 151 OF THE CODE OF
CIVIL PROCEDURE, 1908 IN MISC.NO.178/2018 BY THE IX
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT
BENGALURU (CCH-5), AT ANNEXURE-A AND CONSEQUENTLY
ALLOW THE IA AT ANNEXURE-D FILED BY THE PETITIONER.
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NC: 2023:KHC:36375
WP No. 22366 of 2023
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court, praying to set aside the order dated 11.08.2023 passed on I.A. filed under Order III Rule 2 of CPC seeking permission to prosecute the case through General Power of Attorney (for short "GPA") holder, his wife Smt.Ashwini H.A., in Misc.178/2018 on the file of City Civil and Sessions Judge at Bangalore.
2. Heard learned counsel Sri.P.N.Rajeshwara for petitioner/plaintiff and learned counsel Sri.Arun Pradesh E., for respondents No.1 to 3. Perused the writ petition papers.
3. Learned counsel for the petitioner would submit that the miscellaneous petition is filed by the petitioner under Section 151 of CPC with a prayer to set aside the Mediation Agreement dated 05.05.2011 alleged to have -4- NC: 2023:KHC:36375 WP No. 22366 of 2023 been executed between the petitioner and respondents herein, which was accepted by the Court on 25.07.2011 and to restore the original suit bearing O.S.No.6019/2005 on the file of City Civil Judge, Bangalore. Learned counsel would submit that the case of the petitioner is that the Mediation Agreement was entered into by playing fraud and breach of trust. Learned counsel for the petitioner invites attention of this Court to paragraph 15 of petition where the averments are made with regard to breach of trust and fraud played by the respondents. Further, learned counsel for the petitioner would submit that before commencement of evidence, the petitioner filed I.A. under Order III Rule 2 read with section 151 of CPC seeking permission to prosecute the petition through GPA holder/wife of the petitioner on 21.09.2022. Learned counsel would submit that the petitioner executed GPA in favour of his wife Ashiwini H.A. on 17.09.2022. It is stated that the petitioner is not keeping well and he is suffering from Viral Polyarthritis, Uncontrolled D.M. II, and Peripheral neuropathy, abdominal pain N.O.S, Chronic -5- NC: 2023:KHC:36375 WP No. 22366 of 2023 fatigue. Therefore, the petitioner would not be able to attend the proceedings regularly and hence he executed GPA in favour of his wife to prosecute the case and to adduce evidence in the miscellaneous petition. Learned counsel would submit that the trial Court committed an error in rejecting the application. It is submitted that observation of the trial Court that medical certificates produced are expired and certificates do not subsist any more is not a ground to reject the I.A. It is submitted that the trial Court failed to examine as to whether wife could prosecute or adduce evidence on behalf of the husband. Without application of mind, the trial Court rejected the application and hence prayed for allowing the writ petition, consequently, allowing the I.A. filed under Order III Rule 2 of CPC.
4. Per contra, learned counsel for respondents would support the order passed by the trial Court and he justifies the order passed by the trial Court. He submits that wife of the petitioner is not a party to the suit and the -6- NC: 2023:KHC:36375 WP No. 22366 of 2023 transactions taken place between the petitioner and respondents is not within the knowledge of the wife. Learned counsel further inviting attention of this Court to paragraph 15 of the miscellaneous petition would submit that the miscellaneous petition to set aside the Mediation Agreement is filed with an allegation of breach of trust and fraud. When such being the case, it is for the petitioner to adduce evidence and to prove those allegations. The wife would not be in a position to substantiate such allegations. Thus, in support of his contention, learned counsel for the respondents would place reliance on a decision of the coordinate bench of this Court reported in ILR 2013 KAR 4435 in the case of ABDUL BASHEER AND ANOTHER v/s THE STATE OF KARANTAKA, REP., BY ITS CHIEF SECRETARY AND OTHERS and also on the unreported judgment of coordinate bench in RFA (Crob) No.1015/2008 (A.C.NAGAVENI v/s AKKAMMA) and connected matters.
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5. On hearing the learned counsel for the parties and on perusal of the writ petition papers and impugned order, I am of the view that the trial Court committed an error in dismissing the I.A. filed by the petitioner under Order III Rule 2 of CPC seeking permission to prosecute the miscellaneous petition through GPA holder, wife of the petitioner Smt.Ashwini H.A.
6. It is settled principles of law that power of attorney holder cannot depose in place of Principal in respect of the matter regarding which only Principal can have personal knowledge. Further, it is settled position of law that the power of attorney holder could depose if he has acted on behalf of the Principal and he cannot depose for the acts done by the principal.
7. In the instant case, the miscellaneous petition is filed under Section 151 of CPC with a prayer to set aside the mediation agreement entered into between the petitioner and respondents in O.S.No.6019/2005. It is the specific case of the petitioner that mediation agreement was -8- NC: 2023:KHC:36375 WP No. 22366 of 2023 entered into by breach of trust by playing fraud on the petitioner. Those allegations are specifically found at paragraph 15 of the petition. It is for the petitioner to prove those allegations to be entitled for the reliefs sought in the petition.
8. It is the case of the petitioner that the petitioner has executed GPA dated 17.09.2022 in favour of his wife Smt.Ashwini H.A. to prosecute miscellaneous petition and to adduce evidence in the petition. In the normal circumstances, the Court would examine as to whether that power of attorney holder would be competent to prosecute the case as well as to adduce evidence. But in the instant case, since the petitioner has executed GPA in favour of his wife to conduct the case and to adduce evidence, in terms of Section 120 of Evidence Act, the trial Court ought to have allowed the application. Section 120 of the Evidence Act makes it clear that in all civil proceedings, parties to the suit, wife or husband of any party to the suit shall be competent witnesses. When such -9- NC: 2023:KHC:36375 WP No. 22366 of 2023 being the provision of law, the trial Court without noticing the same committed an error in rejecting the I.A. filed under Order III Rule 2 of CPC. As stated above, it is for the petitioner to prove his case and it is for the petitioner to prove the allegations of breach of trust and fraud played by the respondents. Evidence of witness shall have to be evaluated and appreciated at the time of disposal.
9. The decisions referred by learned counsel for the respondents would not assist the case of the respondents in the present fact situation. The power of attorney executed in the above referred cases was in favour of third parties, whereas in the present case, the husband executes power of attorney in favour of his wife to prosecute the Miscellaneous Petition as well as to adduce evidence.
10. For the reasons recorded above, the writ petition is allowed. The impugned order dated 11.08.2023 passed on the I.A. filed under Order III Rule 2 read with Section 151 of CPC is set aside, consequently, the said application is
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NC: 2023:KHC:36375 WP No. 22366 of 2023 allowed permitting the petitioner to prosecute and adduce evidence in the case through GPA holder i.e., his wife Smt.Ashwini H.A. SD/-
JUDGE MPK CT:bms List No.: 1 Sl No.: 24