Allowed

Smt. Gowramma v. Mr. Narayanaswamy

Karnataka HC3 Sept 2022WP/2543/2022

Case brief

AI extract

What is this about?

The High Court allowed a writ petition quashing a trial court's rejection of an application to examine the plaintiff's husband under Order 3 Rule 2 CPC and Section 120 of the Evidence Act, permitting evidence adduction subject to restrictions on the plaintiff's future testimony.

What did the court decide?

Impugned order of the trial court quashed and I.A. No.5 allowed; respondent's husband permitted to adduce evidence on behalf of the plaintiff.

Smt. Gowramma Vs Mr. Narayanaswamy — Property and Title | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA, BENGALURU

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DATED THIS THE 3^RD DAY OF SEPTEMBER 2022

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BEFORE

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THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR

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WRIT PETITION NO.2543 OF 2022 (GM-CPC)

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BETWEEN:

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SMT. GOWRAMMA W/O RAMANJINI AGED 52 YEARS R/AT NO.341, 4^TH MAIN OMBR LAYOUT, DODDABANASAWADI POST BANGALORE - 560 043

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… PETITIONER

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(BY SRI. M.SHIVAPRAKASH, ADVOCATE)

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AND:

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1 . MR. NARAYANASWAMY S/O LATE MUNIYAPPA AGED 52 YEARS

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2 . SMT. PILLAMMA

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W/O LATE MR. RAMAIAH

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AGED 66 YEARS

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3 . SRI. NARAYANAPPA S/O LATE CHIKKAHANUMANTHAPPA AGED 72 YEARS

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ALL ARE RESIDING AT KANNAMANGALA VILLAGE KASABA HOBLI, DEVANAHALLI TLAUK BANGALORE RURAL DISTRICT

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… RESPONDENTS

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(BY SRI. CHANDAN, ADVOCATE FOR C/R1 TO R3)

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²

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THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO a) ISSUE WRIT OF CERTIORARI AND QUASH THE IMPUGNED ORDER ON IA NO.5 UNDER ORDER 3 RULE 2 OF CPC DATED 04.01.2022 IN O.S.NO.719/2016 ON THE FILE OF PRL. SENIOR CIVIL JUDGE & JMFC AT DEVANAHALLI AT ANNEXURE - H, CONSEQUENTLY TO ALLOW THE I.A.NO.5 FILED BY THE PLAINTIFF; b) GRANT SUCH OTHER RELIEF/S AS THIS HON'BLE COURT DEEMS FIT TO GRANT, IN THE CIRCUMSTANCES OF THE CASE.

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THIS W.P. COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-

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ORDER

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This petition by the plaintiff in

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O.S.No.719/2016 on the file of the Prl.Senior Civil Judge and JMFC, Devanahalli, is directed against the impugned order dated 04.01.2022 passed on I.A.No.5 filed by the petitioner, whereby the said application filed under Order 3 Rule 2 CPC for permission to the petitioner to adduce her evidence through her husband / special power of attorney holder was rejected by the trial court.

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The material on record discloses that the petitioner – plaintiff instituted the aforesaid suit against the respondents – defendants for

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³

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cancellation, declaration and other reliefs in respect of the suit schedule immovable property. The said suit is being contested by the respondents.

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After framing of issues, the petitioner – plaintiff examined herself as PW-1 and marked certain documents as Exhibits. At the stage of further evidence of PW-1, petitioner filed an application I.A.No.5 under Order 3 Rule 2 CPC inter alia contending that due to health issues, it is not possible for her to adduce evidence personally and had executed a special power of attorney in favour of her husband to adduce evidence and depose on her behalf and as such, it is necessary that she is permitted to examine him and adduce evidence through her SPA Holder / husband. The said application having been opposed by the respondents, the trial court proceeded to pass the impugned order rejecting I.A.No.5, aggrieved by

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which, petitioner is before this Court by way of the present petition.

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Heard learned counsel for the petitioner

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and learned counsel for the respondents and perused the material on record.

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Before adverting to the rival contentions, it is relevant to state that on behalf of the petitioner, a memo is filed stating that if she is permitted to examine her husband / SPA holder as a witness, petitioner would not once again continue to adduce her evidence as PW-1 and that the evidence of plaintiff as PW-1 already recorded before the trial Court may be discarded. The said submission by learned counsel for the petitioner is placed on record.

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A perusal of the impugned order will

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clearly indicate that the trial court has committed a grave and serious error of law in failing to consider

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and appreciate that the legality, validity, veracity and credibility of the evidence of the petitioner’s husband / SPA holder has no connection / nexus whatsoever with the right of the petitioner to examine him as a witness in view of the provisions contained in Order 3 Rule 2 CPC r/w Section 120 of the Evidence Act, which permits either spouse to adduce evidence or testify on behalf of the other spouse. At any rate, the respondents would be entitled to not only cross-examine the husband / SPA holder of the petitioner on all aspects but also request the trial court to draw inference / adverse inference against the petitioner for not examining herself, particularly when the petitioner has specifically stated that she would not continue her evidence / examination as a witness either as PW-1 or otherwise during the trial of the suit. Under these circumstances, I am of the considered opinion that the impugned order passed by the trial court rejecting I.A.No.5 deserves to be set aside.

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In the result, I pass the following:-

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ORDER

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(i) Petition is hereby allowed.

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(ii) The impugned order dated 04.01.2022 passed in O.S.No.719/2016 on the file of the Principal Senior Civil Judge and JMFC, Devanahalli is hereby set aside and consequently, I.A.No.5 filed by the petitioner is hereby allowed.

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(iii) Sri. Ramanjini, husband of

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petitioner/plaintiff-Smt. S. Gowramma is permitted to adduce evidence on behalf of the plaintiff subject to the following conditions:

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a) The petitioner-plaintiff shall not be entitled to examine herself or continue evidence as PW-1 or otherwise during the course of trial till disposal of the suit.

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b) Liberty is reserved in favour of the respondents-defendants to crossexamine petitioner’s husband

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Sri.Ramanjini and other witnesses to be

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examined by the petitioner-plaintiff on all aspects of the matter including competency, veracity and credibility of the matter.

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c) Liberty is also reserved in favour of the respondents to request the trial Court to draw inference/adverse inference against the petitioner-plaintiff for not examining herself or entering witness box for adducing evidence.

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

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Sd/JUDGE

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Mds/Srl.

Smt. Gowramma v. Mr. Narayanaswamy

Case brief

What is this about?

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Smt. Gowramma v. Mr. Narayanaswamy

Case brief

What is this about?

What did the court decide?

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