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 Court9), 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

5

for brevity referred to as `CPC9), 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-`A9, 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,

6

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 Hon9ble Apex

Court in Janki Vashdeo Bhojwani and another 3vs-

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

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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 Hon9ble Apex Court

in The Chairman, State Bank of India and others 3vs-

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

8

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-`D9, would

go to show that the application under Order III Rule 2 read

with Section 151 of CPC, came to be filed on 05.08.201