The court clarified that a GPA holder's lack of personal knowledge does not preclude them from testifying, as this should be assessed at trial.

ORDER

This writ petition is directed against the impugned order dated 16.12.2022 passed in O.S. No. 75/2018 on the file of the Prl. Civil Judge & JMFC, Jamkhandi, whereby the application, I.A. No.8 filed by the general power of attorney holder of the petitioner for permission to prosecute the suit and give evidence on behalf of the petitioner was rejected by the trial Court.

2. I have heard learned counsel for the petitioner and perused the material on record. Respondent No.1 having been served with notice of the petition, has chosen to remain unrepresented and has not contested the petition.

3. The material on record discloses that the respondent No.1 instituted the aforesaid suit for partition and separate possession of her alleged share in the suit schedule properties. The petitioner is arrayed as defendant No.1 in the suit and he is contesting the suit. The petitioner executed General Power of Attorney dated 26.09.2022 in favour of his son Sri Niruvatti authorizing and empowering him to prosecute the suit and evidence on his behalf since he was unable to appear before the trial Court due to old age and ailments. Pursuant thereto, the GPA holder-petitioner filed the instant application I.A. No. 8 under Order III Rule 1 CPC seeking permission to him to prosecute the suit on behalf of the defendant No.1 and adduce evidence.

4. Though the said application was not opposed by the respondent No.1/ plaintiff, the trial Court proceeded to pass impugned order rejecting I.A. No. 8, aggrieved by which the petitioner is before this court by way of the present writ petition.

5. A perusal of the impugned order passed by the trial Court will clearly indicate that the main ground on which the trial Court has rejected the application is that the GPA Holder did not have personal knowledge of the facts of the case and therefore could not have permitted to prosecute the case or give evidence on behalf of the defendant no.1. In this context, the trial Court failed to consider and appreciate the well settled principle of law that having personal knowledge of the case and its affairs as well as veracity, credibility, etc. of the evidence to be adduced by the GPA Holder on behalf of the defendant No.1 would have to be considered and appreciated after completion of trial at the time of final arguments and not at the stage of permitting the GPA Holder to prosecute the suit and give evidence on behalf of the defendant No.1. The trial Court also failed to appreciate the unimpeached, unchallenged and uncontroverted averments made in the affidavit filed in support of I.A. No. 8 to the effect that the defendant no.1 was old and infirm and was not in a position to attend the Court and give evidence.

6. Under the circumstances, I am of the view that the impugned order passed by the trial Court rejecting I.A. No. 8 has occasioned failure of justice warranting interference by this Court in the present writ petition.

7. In the result, I pass the following order.

ORDER

i) Writ Petition is allowed;

ii) Impugned order dated 16.12.2022 passed in O.S. No. 75/2018 on the file of the Prl. Civil Judge & JMFC, Jamkhandi, is set aside. Consequently, I.A. No. 8 filed by the petitioner/ defendant No.1 stands allowed;

iii) Liberty is reserved in favour of the respondent to cross examine the GPA holder of the petitioner-defendant no.1 on all aspects of the matter;

iv) Liberty is also reserved in favour of the respondent to request the trial Court to draw inference / adverse inference against the petitioner-defendant no.1 in the event he does not personally examine himself as a witness in the suit;

v) All rival contentions are kept open and no opinion is expressed on the same.