The captioned writ petition is filed by the plaintiff feeling

aggrieved by the order passed by the learned Judge on

I.A.No.3/2013 filed under Order 3 Rule 2 read with Section

151 of CPC and also order passed on I.A.Nos.1 and 2 of 2017

which was filed to recall the order passed on I.A.No.3/2013.

2.

The petitioner/plaintiff has instituted a suit in

O.S.No.2992/2005 seeking relief of declaration to declare the

sale deed dated 04.12.2002 as null and void and not binding

on plaintiff and also subsequent sale deeds and for relief of

mandatory injunction directing the BDA to execute registered

sale deed in favour of plaintiff. The petitioner/plaintiff has let

in ocular evidence and has produced documentary evidence.

3.

The

defendant

No.6

filed

an

application

in

I.A.No.3/2013 requesting the Court to permit her to tender

evidence by authorizing an agent on her behalf. The said

application came to be allowed by order dated 31.07.2014.

4

The

present

petitioner/plaintiff

has

filed

the

present

applications to recall the order passed on I.A.No.3/2013. The

contention of the petitioner/plaintiff before this Court is that

the present GPA holder is not at all competent to tender

evidence on behalf of defendant No.6. The plaintiff's main

ground of objection is only when the matter was posted for

defendants' evidence, for the first time, on the ground of ill

health,

present

respondent

No.6/defendant

No.6

has

appointed her brother-in-law who is also an Advocate as her

agent and authorised him to lead evidence. The petitioner's

contention is that the GPA holder at best can only give formal

evidence

of

existing

document

i.e.,

sale

deed

dated

06.03.2006 but cannot tender ocular evidence in respect of

facts over which he has no personal knowledge. Therefore,

the petitioner contended that GPA holder is thoroughly

incompetent to tender ocular evidence on behalf of defendant

No.6. The learned Judge has rejected the applications which

is under challenge.

5

4.

Learned counsel for the petitioner reiterating the

grounds urged in the writ petition has placed reliance on the

judgment rendered by the Hon'ble Apex Court in the case of

Janki Vashdeo Bhojwani and Another vs. Indusind Bank

Ltd. and Others¹. Relying on para 16 and 18, learned

counsel would contend that the GPA holder as a witness can

appear only as a witness in his personal capacity but he

cannot appear as a witness on behalf of a party in the capacity

of that party. Placing reliance on the dictum laid down by the

Hon'ble Apex Court, he would contend that the impugned

order under challenge is not at all sustainable.

5.

Per contra, learned counsel for the respondent

No.6/defendant No.6 would, however, counter the arguments

canvassed by the learned counsel for the petitioner/plaintiff.

Learned counsel appearing for the respondent No.6 would

contend that the GPA holder is in fact a witness to the sale

deed which is under challenge. He would further bring to the

1 (2005) 2 SCC 217

6

notice of this Court that the GPA holder has already tendered

his

evidence

by

way

of

examination-in-chief

and

is

substantially

cross-examined

by

the

present

petitioner/plaintiff.

6.

Referring to these significant details, he would

place

reliance

on

the

judgment

rendered

by

the

Coordinate Bench of this Court in the case of Smt.

Aluvelamma vs. Venkatarama Reddy². Referring to the

said judgment, he would contend that where GPA holder is

competent to tender evidence on behalf of principal agent is a

matter to be tested and examined only after recording

evidence. Therefore, placing reliance on the said judgment,

he would contend that the order under challenge is in

accordance with law and does not warrant any interference at

the hands of this Court.

7.

Heard learned counsel for the petitioner and

learned counsel for the respondent No.6. I have given my

anxious consideration to the order under challenge. I have

2 W.P.No.5788 of 2017 Dtd: 12.06.2017

7

also examined the dictum laid down by the Hon'b