ORDER :

1. The present petitioners, who are defendant Nos.10, 11 and 12, in O.S.No.978/2014, in the Court of learned Senior Civil Judge and J.M.F.C., Magadi, (hereinafter for brevity referred to as ‘trial Court’), have filed this writ petition seeking quashing of the order dated 05.08.2015 passed by the trial Court by allowing the interlocutory application filed by the plaintiff therein under Order III Rule 2 read with Section 151 of Code of Civil Procedure, 1908 (hereinafter for brevity referred to as ‘CPC’), in permitting the Special Power of Attorney Holder of the plaintiff to proceed further in the suit.

2. Undisputedly and as could be seen from the copy of the plaint, which is produced at Annexure-‘A’, the suit was filed for the relief of partition and separate possession of the suit schedule properties by metes and bounds and also for permanent injunction. The present petitioners as defendant Nos.10, 11 and 12 appeared in the matter and filed their statement of objections. It is thereafter, the plaintiff filed an interlocutory application under Order III Rule 2 read with Section 151 of CPC, seeking permission to appoint Special Power of Attorney. The said application came to be allowed through the impugned order.

3. The learned counsel for the petitioners in his argument submitted that no opportunity was given to the present petitioners to file their statement of objections to the said application and to address their arguments, on the other hand, on the very same day of filing the IA., the impugned order came to be passed by allowing the application. Learned counsel for the petitioners further contends that, by virtue of the judgment of Hon’ble Apex Court in Janki Vashdeo Bhojwani and another –vs- Indusind Bank Ltd., and others, reported in (2005) 2 SCC 217, the Power of Attorney Holder cannot give evidence on certain aspects which are exclusively to the personal knowledge of the executant of the Power of Attorney. In such an event, the trial Court ought not to have allowed the application.

4. Vide order dated 27.04.2017, notice to respondent Nos.2, 4 to 8 was dispensed with. Respondent Nos.3 and 10 though served, have remained absent. The only contesting respondent is respondent No.1, who is the plaintiff in the trial Court.

Though the said respondent No.1 was being represented by her learned counsel, however, the said learned counsel had remained absent on several dates of hearing, as such, with a reasoned order, this Court on 09.03.2022, appointed an Amicus Curiae for respondent No.1. Accordingly, respondent No.1 is now being represented by learned Amicus Curiae.

5. Learned Amicus Curiae in her arguments submitted that non-giving of an opportunity to the present petitioners to file their objections to the impugned IA. filed under Order III Rule 2 read with Section 151 of CPC is not violative of principles of natural justice since the same has not caused any prejudice to the interest of the petitioners. In her support, she relied upon a judgment of Hon’ble Apex Court in The Chairman, State Bank of India and others –vs-M.J.James, reported in MANU/SC/1069/2021. She further submitted that, if at all Special Power of Attorney Holder cannot speak about those facts which are exclusively to the personal knowledge of the plaintiff, then, by appointing Special Power of Attorney Holder, the plaintiff attracts the risk in the suit, for which, the defendants should not bother. In case the defendants succeed to show that the Special Power of Attorney Holder had no personal knowledge of certain aspects which are attempted to be brought in the trial Court, then, the risk would be more on the plaintiff since the trial Court in certain circumstances can even draw an adverse inference.

6. A perusal of the order sheet, including the impugned order, which is produced at Annexure-‘D’, would go to show that the application under Order III Rule 2 read with Section 151 of CPC, came to be filed on 05.08.2015 and that on the very same day, the