Dismissed

Srilatha Joshy v. Smt S Susheela Devi

Karnataka HC23 Aug 2023WP/8920/2023

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a writ petition challenging an order allowing a plaintiff's General Power of Attorney holder to prosecute a suit and lead evidence. The Court held that since the plaintiff previously filed an application for permission which was granted and not challenged, asserting grounds ad hoc during proceedings was frivolous.

What did the court decide?

The writ petition filed under Article 227 of the Constitution of India assailing the order of the trial Court permitting the General Power of Attorney holder to prosecute the suit was dismissed as mis

Srilatha Joshy Vs Smt S Susheela Devi — Civil Procedure and Limitation | Karnataka HC (2023)

¶1

NC: 2023:KHC:30219 WP No.8920 of 2023

¶2

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23^RD DAY OF AUGUST, 2023 BEFORE

¶4

THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.8920 OF 2023 (GM-CPC)

¶5

BETWEEN:

¶6

Digitally signed by RUPA V Location: HIGH COURT OF KARNATAKA

¶7

SRILATHA JOSHY W/O SUMANTH K. JOSHY AGED ABOUT 46 YEARS R/AT SHARBATH KATTE SHANKAR VITTAL EMPORIUM OPP. K M C HOSPITAL N G ROAD, ATTAVARA MANGALURU, D K DISTRICT-575 001.

¶8

…PETITIONER

¶9

(BY SMT. LAKSHMI DEVI K, ADV.,)

¶10

AND:

¶11

SMT. S. SUSHEELA DEVI W/O LATE SRI. M. RAMACHANDRA AGED ABOUT 66 YEARS R/AT NO.690, 'SRI MAHALAKSHMI' SRI. VENKATESHWARA THEATRE ROAD DEVA SANDRA, K R PURAM BENGALURU -560 036.

¶12

…RESPONDENT

¶13

(BY SRI. R.B. MRUTHYUNJAYA, ADV.,)

¶14

THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DTD. 16.02.2023 IN OS NO.611/2022 PASSED BY THE LEARNED I ADDL. CIVIL JUDGE AND JMFC, MANGALURU , VIDE ANNX-A. GRANT AN INTERIM ORDER TO STAY ALL FURTHER PROCEEDINGS IN OS NO. 611/2022 PASSED BY THE LEARNED I ADDL. CIVIL JUDGE AND JMFC, MANGALURU.

¶15

¶16

NC: 2023:KHC:30219 WP No.8920 of 2023

¶17

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

¶18

ORDER

¶19

This writ petition is filed by the petitioner-defendant

¶20

under Article 227 of the Constitution of India assailing the order dated 16.02.2023 passed in O.S.No.611/2022 by the I Additional Civil Judge & JMFC, Mangaluru (for short, ' the trial Court ').

¶21

2. The parties are referred to as per their ranking before the trial Court. The petitioner is the defendant and respondent is plaintiff before the trial Court.

¶22

3. The plaintiff has filed O.S.No.611/2022 seeking prayer to direct the defendant to quit and surrender vacant possession of the schedule 'A' premises to the plaintiff, further direction to pay a sum of Rs.2,93,000/and further prayer to pay mense profits at rate of Rs.10,000/- per month.

¶23

4. The above suit has been instituted by the plaintiff-owner, being represented by her daughter as a

¶24

3 - NC: 2023:KHC:30219 WP No.8920 of 2023

¶25

General Power of Attorney (GPA) holder. The GPA holder has entered the witness box, adduced evidence and marked certain documents. On 16.02.2022 during the course of proceedings, learned counsel for the defendant has requested/raised objection before the trial Court to take note of the presence of the plaintiff Smt.S.Susheela Devi and requested that when the plaintiff herself is present before the Court, however she has not led the evidence. However, the evidence is led by her GPA holder as PW-1. Since the plaintiff herself is present, her GPA holder could not be permitted to prosecute the case and lead evidence. The said objection of the learned counsel for the defendant was considered and rejected by the trial Court by the impugned order. Being aggrieved by the impugned order dated 16.02.2023, the present writ petition is filed.

¶26

5. Smt.Lakshmi Devi, learned counsel appearing on behalf of Sri.Prasanna V.R., for the petitionerdefendant submits that the impugned order of the trial

¶27

4 - NC: 2023:KHC:30219 WP No.8920 of 2023

¶28

Court is opposed to the material on record. The trial Court has committed an error in allowing the GPA holder of the plaintiff to examine as PW-1, when the plaintiff herself was present before the Court. The trial Court ought to have allowed the objection raised by the defendant by rejecting the evidence of PW-1. It is submitted that the impugned order is contrary to Order III Rule 2 of Code of Civil Procedure, 1908. It is further submitted that the trial Court has failed to take note of the fact that the GPA holder is entitled to examine to the limited extent of her knowledge and she cannot be able to depose on behalf of the plaintiff and about her personal knowledge. It is also submitted the evidence of PW-1 is admissible only to the extent of her personal knowledge and rest of her evidence would be hearsay evidence, which is inadmissible. It is submitted that the petitioner herself is available for examination in another suit i.e., in O.S.No.168/2022, on the very same day before the trial Court and allowing the GPA holder to represent the plaintiff in the present suit is

¶29

NC: 2023:KHC:30219 WP No.8920 of 2023

¶30

¶31

contrary to law. Hence, she seeks to allow the writ petition.

¶32

6. Per contra, Sri.R.B.Mruthyunjaya, learned

¶33

counsel for the respondent-plaintiff submits that the respondent is aged about 65 years and she has given GPA to her daughter, who has entered the witness box as PW-1 and tendered her evidence and certain documents were also marked. It is submitted that the petitioner has not raised this objection at the time of examination-in-chief of PW-1 and without any application, the petitioner has raised oral objection that GPA holder cannot be allowed to continue in the proceedings. It is further submitted that the respondent has filed I.A.No.1 under Order III Rule 1 and 2 read with Section 151 of CPC seeking prayer to permit the plaintiff's GPA holder to prosecute the case on her behalf. The said application was duly considered and allowed by the trial Court on 05.01.2023. The petitioner herein has not challenged the said order. It is also contended that the question of raising oral objection

¶34

6 - NC: 2023:KHC:30219 WP No.8920 of 2023

¶35

during the proceedings is contrary to settled principles of practice and law. Hence, he seeks to dismiss the writ petition.

¶36

7. I have heard the learned counsel for the petitioner-defendant, learned counsel for respondent-

¶37

plaintiff and perused the material on record.

¶38

8. It is not in dispute that the respondent-plaintiff has filed O.S.No.611/2022 seeking prayer to direct the petitioner-defendant to quit and surrender the vacant possession of the schedule premises and consequential prayer to pay a sum of Rs.2,93,000/- and further prayer to pay future mesne profits at the rate of Rs.10,000/- per month. It is also not in dispute that the said suit was presented by the plaintiff - Smt.S.Susheela Devi and thereafter due to her age, related ailments and her difficulties, has filed an application I.A.No.1 under Order III Rule 1 and 2 read with Section 151 of CPC seeking permission of the Court to prosecute the above suit

¶39

7 - NC: 2023:KHC:30219 WP No.8920 of 2023

¶40

through the GPA holder. The said application came to be allowed vide order dated 05.01.2023 and there is no challenge to the said order. When things stood thus, the petitioner-defendant is not justified in contending that the GPA holder cannot be permitted to prosecute the suit.

¶41

9. The trial Court has recorded a categorical finding in the impugned order that the respondent-plaintiff is the master of her case, if the plaintiff intend to lead evidence through her GPA holder, the Court cannot insist the plaintiff to lead the evidence by herself, Order III Rule 1 and 2 of CPC empowers the party to lead evidence through GPA holder or through the agent. The aforesaid finding of the trial Court is based on the decision of this Court as well as in consonance of the provision of law.

¶42

10. In my considered view, in the absence of any challenge to the order dated 05.01.2023 passed on I.A.No.1 filed under Order III Rule 1 and 2 of CPC, the petitioner-defendant has not justified in raising such a

¶43

NC: 2023:KHC:30219 WP No.8920 of 2023

¶44

¶45

frivolous objection before the trial Court. The present petition is misconceived and devoid of merits, does not call for any interference by this Court. Accordingly, the writ petition is dismissed .

¶46

Sd/JUDGE

¶47

BSR

Srilatha Joshy v. Smt S Susheela Devi

Case brief

What is this about?

What did the court decide?

Srilatha Joshy v. Smt S Susheela Devi

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sri Chandregowda Vs Smt Sharada

Sri. Singaiah Vs Shwetha M

M/S Siddarth Infra Holdings Pvt. Ltd. Vs Sri Dinesh Kumar Singhi

Sri H Ramanjinappa Vs Sri M R Anandaram

Shri. Vijayakumar M.R. Vs M/S. Narana Cables and Chemicals

Smt. Meenakshi Vs Shivarudrappa