A plaintiff may prosecute a case through a Special Power of Attorney holder, and defendants retain the right to challenge any such evidence during cross-examination.

ORDER :

S.R.KRISHNA KUMAR, J.

This petition by the defendants in O.S.No.59/2016 on the file of the Senior Civil Judge, Kunigal (hereinafter referred to as ‘the Trial Court’ for short) is directed against the impugned order dated 03.09.2025, whereby the application I.A.No.6 filed by the respondent – plaintiff under Order III Rule 2 read with Section 151 of CPC for permission to appoint her daughter as SPA Holder to prosecute the case on her behalf was allowed by the Trial Court.

2. Heard learned counsel for the petitioner and perused the material on record.

3. For the order proposed, service of notice to the respondents is dispensed with.

4. A perusal of the material on record will indicate that the respondent – plaintiff instituted the aforesaid suit against the petitioners –defendant Nos.1 and 2 and other respondents for partition and separate possession of her alleged share in the suit schedule immovable properties and for other reliefs. The said suit having been contested by the respondent – defendant Nos.1 and 2, respondent No.1-plaintiff filed the instant application I.A.No.VI under Order III Rule 2 of CPC seeking permission to appoint her daughter as SPA holder to prosecute the case on her behalf on the ground of ill-health and she was not in a position to give evidence. The said application having been opposed by the defendants, the Trial Court proceeded to pass the impugned order by holding as under:

“Order On IA No.VI U/o 3 rule 2 R/w Sec. 151 CPC.

IA No.VI is filed by the plaintiff to appoint her lawful attorney to prosecute the case on her behalf when the case is posted for plaintiff evidence.

2. The defendants have filed objections to IA No.VI and prayed to reject the application.

3. This court by order dated 20.02.2025 has allowed the review application filed by the plaintiff in IA No.VIII. The defendants being aggrieved by the said order have approached the Hon'ble High Court by filing Writ Petition No.9768/2025 wherein the Hon'ble High court directed this court to reconsider the IA No.VI in accordance with law. Therefore in view of the above said order this court heard arguments from both sides.

4. The points that arise for my consideration are as under, 1. Whether the plaintiff has made out grounds to allow the I.A.No. VI?

2. What order?

5. My finding on points are as under;

Point No. 1: In the Affirmative;

Point No.2 : As per final order for the following:

REASONS

6. Point No.1:- It is the contention of the plaintiff that, she has filed present suit for the relief of partition and such other reliefs against the defendants with respect to suit schedule property. She is suffering from BP, diabetic and she age old person as such she is not able to attend the court hence, her daughter may be appointed as Special Power of attorney to prosecute the case.

7. It is the contention of the defendants that, no genuine reasons are assigned in the application to allow the same. There is no medical certificate to show that the plaintiff is suffering from any of the diseases. There is a dispute with regard to relationship is concerned hence, the examination and cross examination of the plaintiff is necessary. The issues in the present suit requires the relationship to be established by the parties and as a baste principal it requires the party to the suit to appear in the witness box and state her case on oath. The attorney can only depose for the principal in respect of such acts in pursuance of Power of attorney having rendered some acts, but she cannot depose for the principal for the acts done by the principal and which is in the personal knowledge of the principal. The essential requirement of the witness appearing and offering for cross examination can not be deviated merely on the g