Dismissed

Smt. Gowramma v. Sri. Chowdappa

Karnataka HC18 Oct 2021WP/37017/2018

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a writ petition challenging the Trial Court's rejection of an application to conduct proceedings via power of attorney, upholding that the principal must personally testify when regarding matters of personal knowledge such as fraud.

What did the court decide?

The writ petition was dismissed with liberty to the claimant to lead further evidence through a commission.

Smt. Gowramma Vs Sri. Chowdappa — Land Acquisition | Karnataka HC (2021)

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W.P.No.37017/2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF OCTOBER 2021

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BEFORE

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THE HON’BLE MRS. JUSTICE K.S.MUDAGAL

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WRIT PETITION NO.37017/2018 (GM CPC)

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BETWEEN :

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SMT GOWRAMMA W/O MOHAN AGED ABOUT 66 YEARS R/AT NO.27, K.H.ROAD BENGALURU – 560 025

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… PETITIONER

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(BY SMT. J.KALADEEPA, ADV. FOR SRI. G.S.PATIL, ADV.)

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AND :

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SRI CHOWDAPPA SINCE DEAD BY HIS LR

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SRI MUNIRAJU S/O CHOWDAPPA AGED ABOUT 45 YEARS R/AT NO.636, ANJINAPURA @ POST UTTARAHALLY HOBLI BENGALURU SOUTH TALUK BENGALURU – 560 062

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THE SPECIAL LAND ACQUISITION OFFICER BENGALURU DEVELOPMENT AUTHORITY KUMARA PARK WEST CHOWDAIAH ROAD BENGALURU – 560 021

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W.P.No.37017/2018

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THE COMMISSIONER BENGALURU DEVELOPMENT AUTHORITY KUMARA PARK WEST CHOWDAIAH ROAD BENGALURU – 560 002 … RESPONDENTS

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(BY SRI. K. SURESH DESAI, ADV. FOR R1; SRI. G.A.GOPI, ADV. FOR R2 AND R3)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 08.06.2018 PASSED BY THE II ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, AT BENGALURU (CCH-17) ON I.A.NO.1 IN L.A.C.NO.243/2003 ON HIS FILE VIDE ANNEXURE – D, CONSEQUENTLY ALLOWING THE SAID APPLICATION.

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THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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This matter coming on for hearing on

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I.A.No.1/2021, with consent of both parties, the main matter itself is taken up for disposal.

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Aggrieved by the rejection of her application

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under Order III Rule 2 read with Section 151 of CPC, claimant No.1 in L.A.C. No.243/2003 has preferred the above petition.

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The land bearing Sy.No.80 of Anjanapura village measuring 4 acres 4 guntas was acquired for formation of Anjanapura Township Layout for the

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W.P.No.37017/2018

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purpose of Bengaluru Development Authority. The Land Acquisition Officer passed an award for Rs.28,61,811/under Section 11 of the Land Acquisition Act, 1894.

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Since claimant - Gowramma failed to produce the title deeds to receive the award amount, Land Acquisition Officer referred the matter to the Civil Court under Section 30 and 31(2) of the Land Acquisition Act. On such reference, the II Additional City Civil and Sessions Judge, Bengaluru (Reference Court) registered the case in L.A.C. No.243/2003. In the said case, one Chowdappa got himself impleaded as claimant No.2 on the ground that the land in question was governed by Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for short “KPTCL Act”) and the sale in favour of claimant No.1 was fraudulent and violative of the provisions of the said Act. The said case was registered in case No.SC/ST(S) 15/2009-10 before the Assistant Commissioner/the Competent Authority.

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The Assistant Commissioner/Competent Authority by order Ex.P2 dated 08.11.2010 declared the sale deed dated 20.07.1972 executed in favour of claimant No.1 as null and void and resumed the land to the Government. The Assistant Commissioner further directed the Tahasildar to take steps to restore the land to the heirs of Chowdappa.

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In the proceedings before the Trial Court, Chowdappa was examined as PW.1 and got the documents marked in his favour. When the case was pending for further evidence of claimant No.2, claimant No.1 filed I.A.No.1 under Order III Rule 2 read with Section 151 of CPC seeking leave of the Court to conduct the proceedings through her power of attorney. The same was opposed by claimant No.2.

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The Trial Court on hearing the parties by the impugned order rejected the said application on the ground that since the evidence has to be adduced about the personal knowledge of claimant No.1, her power of

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attorney holder cannot be permitted to lead the evidence or conduct the proceedings.

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In holding so, the Trial Court relied on the following judgments of this Court and the Hon’ble Supreme Court:

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i) Abdul Basheer and another vs. The State of Karnataka, rep., by its Chief Secretary and Others¹

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ii) S. Kesari Hanuman Goud vs. Anjum Jehan & Others²

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In the affidavit filed in support of the

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application, claimant No.1 contended that due to her ill-health, she is not in a position to appear before the Court personally. Therefore, she be permitted to conduct the proceedings through her power of attorney holder. To substantiate the said contention, no material was produced before the Trial Court or before this Court.

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1 ILR 2013 KAR 4435

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2 2013 AIR SCW 3561

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The records show that claimant No.1 herself conducted the proceedings before the Assistant Commissioner in PTCL proceedings. She filed this appeal personally.

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Learned counsel for the petitioner submitted copy of an interim order said to be passed by the Deputy Commissioner, Bengaluru. She submits that against the order of the Assistant Commissioner dated 08.11.2010 in case No.SC/ST(S) 15/2009-10 claimant No.1 has preferred PTCL Appeal and an interim stay is granted. Even that appeal is filed by claimant No.1 herself not through her power of attorney.

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Whether claimant No.2 gets any right in view of the stay granted by the Deputy Commissioner is a matter to be decided by the Trial Court. Suffice it to say that in all other connected proceedings claimant No.1 herself is conducting the cases. If she is unwell, it is open to her to seek the issue of commission for recording the evidence.

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Claimant No.2 contends that sale deed dated 20.07.1972 in favour of claimant No.1 is the outcome of impersonation of Chowdaiah and that is fraudulent one. Having regard to such contention, claimant No.2 is entitled to cross-examine claimant No.1 personally touching the aspects of fraud or collusion.

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The Hon’ble Supreme Court in para 13 of S.Kesari’s Judgment referred to supra with regard to the scope of permitting the power of attorney holder to give evidence has held as follows:

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“13. It is a settled legal proposition that the power of attorney holder cannot depose in place of the principal. Provisions of Order III, Rules 1 and 2, CPC empower the holder of the power of attorney to “act” on behalf of the principal. The word “acts” employed therein is confined only to “acts” done by the power of attorney holder, in exercise of the power granted to him by virtue of the instrument. The term “acts” would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has preferred any “acts” in pursuance of the power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for acts done by the principal, and not by him. Similarly, he cannot depose for the principal in respect of a matter, as regards which, only the principal can have personal knowledge and in respect of which, the principal is entitled to be crossexamined. (See: Vidhyadhar v. Manikrao and Anr., AIR 1999 SC 1441 : (1999 AIR SCW 1129);

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Janki Vashdeo Bhojwani v. Indusind Bank Ltd. (2005) 2 SCC 217 : (AIR 2005 SC 439 : 2004 AIR SCW 7064); M/s. Shankar Finance and Investment v. State of A.P and Ors., AIR 2009 SC 422 : (2008 AIR SCW 7493); and Man Kaur v. Hartar Singh Sangha (2010) 10 SCC 512) : (2010 AIR SCW 6198).”

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(Emphasis supplied)

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Similarly this Court in Abdul Basheer’s case referred to supra held that when there are serious allegations of fraud and forgery with reference to several documents and transaction personally executed by the plaintiff, it was imperative for the plaintiff to have tendered evidence in support of their case with regard to those documents and transaction, the General Power of Attorney is not competent to speak to such documents and transactions.

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Having regard to the aforesaid judgments and the discussions made above, this Court does not find any illegality, impropriety or incorrectness in the order of the trial Court. Therefore the petition is dismissed. Consequently, pending IAs stood disposed of.

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Liberty is reserved to claimant No.1 to lead

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further evidence under a commission.

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Sd/JUDGE

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