Allowed

Syed Abdul Rasheed v. Smt. Khursheed Begum

Karnataka HC11 Apr 2022WP/4945/2021

Case brief

AI extract

What is this about?

This writ petition under Article 227 challenged an order dismissing an application for a power-of-attorney holder to appear and lead evidence. The court allowed the writ, set aside the impugned order, and permitted the power-of-attorney holder to adduce evidence, distinguishing fact-specific knowledge requirements between specific performance suits and declaratory suits regarding title.

What did the court decide?

The order dated 18th March, 2020 is set aside and the petitioner is permitted to adduce evidence through the power of attorney holder.

Syed Abdul Rasheed Vs Smt. Khursheed Begum — Property and Title | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF APRIL, 2022

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BEFORE

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THE HON’BLE MR. JUSTICE E.S. INDIRESH

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WRIT PETITION NO.4945 OF 2021 (GM-CPC)

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BETWEEN

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SYED ABDUL RASHEED AGED ABOUT 62 YEARS, S/O.G.S.JALALUDDIN, AGED ABOUT 54 YEARS, RESIDING AT NO.72, 1-2-3, MODI ROAD, LAYOUT, NARAYANASWAMY BLOCK, DEVARAJEEVANAHALLI, BENGALURU -560 045

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...PETITIONER

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(BY SMT. SINDHU V, ADVOCATE)

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AND

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1 . SMT. KHURSHEED BEGUM W/O LATE SYED GHOUSE, AGED ABOUT 60 YEARS,

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2 . MS. KHUSNUDA TAREEN D/O LATE SYED GHOUSE, AGED ABOUT 26 YEARS,

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3 . MS. AMEENA TAREEN D/O LATE SYED GHOUSE, AGED ABOUT 24 YEARS,

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4 . MS. RAHEEMA TAREEN D/O LATE SYED GHOUSE, AGED ABOUT 23 YEARS

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5 . MS. RASHEEDA TAREEN D/O LATE SYED GHOUSE

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ALL ARE R/AT NO.28 ISHQ SAB STREET J.C. NAGAR, MUNIREDDYPALYA BENGALURU -560 006.

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….RESPONDENTS

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(BY SMT. ANUKANKSHA, ADVOCATE FOR SRI KIRAN V RON, ADVOCATE FOR R1; SRI V SEENAPPA, ADVOCATE FOR R2 TO 5)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 18^TH MARCH, 2020, AT ANNEXURE-A PASSED IN IA.NO.6 IN ORIGINAL SUIT NO.7466 OF 2014 BY THE LEARNED XVII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, (CCH 16) AND ALLOW THE PRAYER IN IA.NO.6 AND ETC.,

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THIS PETITION COMING ON FOR PRELIMINARY HEARING ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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This Writ Petition is filed by the defendant in Original Suit No.7466 of 2014 on the file of the XVII Additional City Civil Judge, Bengaluru, challenging order dated 18^th March, 2020, dismissing IA.6 filed by the defendant

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The relevant facts for adjudication of this writ petition are that, plaintiffs have filed suit seeking relief of declaration and consequential relief of injunction against the defendants and defendants entered appearance and filed written statement. In the meanwhile, defendants filed application in IA.6 under Order III Rule 2 of Code of Civil Procedure to permit their power of attorney holder-M Jayaseelan to appear and lead evidence on behalf of them and the said application was resisted by plaintiffs. The trial Court, by impugned order dated 18^th March, 2020, after hearing the learned counsel appearing for the parties, dismissed the application. Feeling aggrieved by the same, the defendant has presented this writ petition.

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I have heard Smt. Sindhu V, learned counsel appearing for the petitioner and Smt. Anukanksha, learned counsel appearing on behalf of Sri Kiran V. Ron and Sri V. Seenappa learned counsel appearing for respondent No.1 and for respondents 2 to 5 respectively.

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Smt. Sindhu V, Learned counsel appearing for the petitioners submitted that trial Court has not carefully

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considered the reasons assigned by the applicant in IA.6 and she further contended that the relief sought for in the suit is with regard to declaratory relief and the parties have to prove their case based on the title and therefore, the finding recorded by the trial Court requires to be interfered with in this petition. In this connection, she refers to the law declared by this Court in the case of BHEEMAPPA AND OTHERS v. ALLISAB AND OTHERS reported in ILR 2006 KAR 3129 and argued that the impugned order passed by the trial Court requires interference in this Writ Petition.

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Per contra, Smt. Anukanksha, learned counsel appearing for the respondents 1 to 5 sought to justify the impugned order passed by the trial Court and submitted that the power of attorney holder has no personal knowledge about the transaction with regard to documents referred to by the defendant and in that view of the matter, the finding recorded by the trial Court requires to be affirmed in this Writ Petition. She also referred to the judgment of the Hon’ble Apex Court in the case of MAN KAUR (DEAD) BY LEGAL REPRESENTATIVES v.

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HARTAR SINGH SANGHA reported in (2010)10 SCC 512 and argued in support of the impugned order.

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In the light of the submission made by the learned

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counsel appearing for the parties it is not in dispute that the relief sought for by the plaintiff is declaratory in nature and the recitals in the power of attorney would authorise the attorney to give evidence and to produce documents in the evidence. The deponent/defendant, in the affidavit, has stated that due to his poor health he was not able to attend the Court proceedings and accordingly, seeks leave of the court to adduce evidence through his power of attorney. I have carefully considered the law declared by the Hon'ble Apex Court referred to above, wherein the aforementioned decision has been rendered by the Hon'ble Apex Court culminating from the relief sought for by the parties in specific performance based on the agreement dated 20^th October, 1978. In a suit for specific performance the personal knowledge of the transaction may be the relevant factor to decide the matter in that connection the Hon'ble Apex Court has held that the power of attorney holder cannot be examined with

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regard to the personal knowledge in respect of the transaction. However, considering the nature of relief sought for by the plaintiff in the present suit, seeking declaratory relief, the plaintiff has to establish his title through documentary evidence and it is trite law that title cannot be established through personal knowledge. In that view of the matter, I find force in the submission made by the learned counsel appearing for the petitioners, accordingly writ petition is allowed; Order dated 18^th March, 2020 is set aside and the plaintiff is permitted to adduce evidence through the power of attorney holder.

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Sd/JUDGE

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lnn

Syed Abdul Rasheed v. Smt. Khursheed Begum

Case brief

What is this about?

What did the court decide?

Syed Abdul Rasheed v. Smt. Khursheed Begum

Case brief

What is this about?

What did the court decide?

What the court decided

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