Back
2023 Supreme(Kar) 354
IN THE HIGH COURT OF KARNATAKA AT KALABURAGI BENCH
SURAJ GOVINDARAJ, J.
Shankramma W/o Late Dodda Narasayya – Petitioner
Versus
Anusuya Devi D/o Shankergouda – Respondent
Writ Petition No. 200500 of 2022
Decided On : 01-06-2023
Advocate Appeared:
For the Petitioner: Shivanand Patil.
For the Respondent: Mahantesh Patil.
Point of Law : Question of rejection of such application on the ground that no grounds have been made out by a power of attorney to lead evidence is not sustainable.
Headnote:
Civil Procedure Code,1908 - Section 151 - Order 3 - Rule 2 - Indian Evidence Act - Suit properties - Sale Deeds - Seeking permission to lead evidence - Petitioners who were defendants No. 2 and 3 in said suit had entered appearance, filed their written statement, as also cross-examined plaintiff witnesses - When matter was posted for evidence of defendants No. 2 and 3, they filed an application under Order 3 Rule 2 read with Section 151 of CPC which came to be numbered as IA No. 24 seeking permission to lead evidence on their behalf throught Special Power of Attorney (SPA), same being opposed by respondent on the ground that application was filed only to protract the proceedings and no grounds were made out for leading such evidence - Whether a party seeking to lead evidence through a general power of attorney or special power of attorney would be required to make an application seeking permission to lead such evidence in the matter? Whether the request made in an application to lead evidence of Power of Attorney can be dismissed by stating that no grounds are made out? -no particular application would be required to be filed seeking for permission to permit the power of attorney to lead evidence. [Para 9.3]
Finding of Court : It is clear that a power of attorney, be a General power of attorney or Special power of attorney is appointed in a particular matter by one of parties to that matter, such power of attorney can subject to contents and powers vested under the power of attorney carry out such duties as is authorised to do so under power of attorney - Insofar veracity or otherwise of evidence which is led, same shall have to stand the test of Indian Evidence Act, which would include personal knowledge of facts, as also stand test of cross-examination as also rules relating to appreciation of evidence as per applicable law - Court of considered opinion that a power of attorney cannot be shut out or prevented from leading evidence on behalf of a party to a proceeding.
Result : Writ petition is allowed.
ORDER :
1. The petitioners are before this Court seeking for the following reliefs:
(a) Issue a writ of Certiorari or any other order of the like and quash/set-aside the impugned order dated 11.01.2022 on IA-24 in OS No. 224/2014 on the file of the 2nd Addl. Senior Civil Judge & JMFC Raichur as per Annexure-F to the writ petition in the interest of justice.
(b) Any other order as may be deemed fit in the facts and circumstances of the case be passed.
2. Respondent No. 1-plaintiff had filed O.S. No. 224/2014 seeking for the following reliefs:
(i) To declare that, the plaintiff is the absolute owner of the suit properties.
(ii) A declaratory decree be passed declaring that the Regd. Sale Deeds No 217/1988-89 dated 13.1.1988, Regd. Sale deed No. 218/1988-89 dated 13.1.1988 and Regd. Sale Deed No. 2724/2001-02 dated 28.3.2002, as illegal, null and void, inoperative, ineffective and not binding upon the plaintiff.
(iii) To direct the defendants their men, agents, servants, etc. who ever claiming through them to deliver the possession of the suit properties to the plaintiff.
(iv) The costs of the suit be awarded.
(v) Any other relief which the Hon'ble court deems fit and proper under the circumstances case, may also be awarded, in the interest of justice.
3. Petitioners who were defendants No. 2 and 3 in the said suit had entered appearance, filed their written statement, as also cross-examined the plaintiff witnesses. When the matter was posted for evidence of defendants No. 2 and 3, they filed an application under Order 3 Rule 2 read with Section 151 of CPC which came to be numbered as IA No. 24 seeking permission to lead evidence on their behalf throught Special Power of Attorney (SPA), same being opposed by respondent on the ground that the application was filed only to protract the proceedings and no grounds were made out for leading such evidence, the trial Court accepting the objections dismissed the application. It is aggrieved by the same, that the petitioner is before this court.
4. Sri.Shivanand Patil, learned counsel for the petitioner would submit that the petitioners who were defendants in the proceedings always had an option to lead evidence of any witness that they choose to. The evidence now sought to be led through SPA on account of respondents No. 2 and 3 being held up in certain other activities was to expedite the process and not to protract the proceedings. The evidence which is led through SPA would have to be considered by the Court in accordance with law. On these grounds he submits that the petition is required to be allowed, the impugned order be setaside and consequently, IA No. 24 be allowed.
5. Sri.Mahantesh Patil, learned counsel for the respondent No. 1, however, opposes the petition by contending that the said application, was filed only to protract the proceedings, no grounds have been made out in the affidavit filed in support of the application except vaguely stating that the petitioner No. 2 is busy in agricultural activities and as such, SPA can not be permitted to lead evidence. This has been rightly considered by the trial Court dismissed the application.
6. Heard Sri.Shivanand Patil, learned counsel for the petitioners and Sri.Mahantesh Patil, learned counsel for the respondents. Perused records.
7. The points that would arise for determination by this Court are:
(i) Whether a party seeking to lead evidence through a general power of attorney or special power of attorney would be required to make an application seeking permission to lead such evidence in the matter?
(ii) Whether the request made in an application to lead evidence of Power of Attorney can be dismissed by stating that no grounds are made out?
(iii) What order?
8. I answer the above points as under.
9. ANSWER TO POINT NO. 1: Whether a party seeking to lead evidence through a general power of attorney or special power of attorney would be required to make an application seeking permission to lead such evidence in the matter?
9.1. Order 3 of CPC deal
