Disposed

Sri Palaxayya Shivamurthayya v. Sri Shivabasappa Neelappa Navalgund

Karnataka HC30 Aug 2024WP/17128/2024

Case brief

AI extract

What is this about?

The High Court disposed of a writ petition challenging an order that ambiguously permitted a plaintiff to lead evidence either personally or through a power of attorney holder. The Court clarified that the application was allowed for the power of attorney holder to represent the plaintiff, but once such representative leads evidence, the plaintiff himself cannot enter the witness box.

What did the court decide?

Clarification that IA 6 is allowed; power of attorney holder permitted to lead evidence, thereafter plaintiff cannot enter witness box.

Sri Palaxayya Shivamurthayya Vs Sri… — Civil Procedure and Limitation | Karnataka HC (2024)

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NC: 2024:KHC:35039 WP No. 17128 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 30^TH DAY OF AUGUST, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R DEVDAS

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WRIT PETITION NO. 17128 OF 2024 (GM-CPC)

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BETWEEN:

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SRI. PALAXAYYA SHIVAMURTHAYYA HIREMATH, S/O LATE SHIVAMURTHAYYA HIREMATH, AGED ABOUT 71 YEARS, R/AT NO.2082, 4^TH CROSS, JUDICIAL LAYOUT, YELAHANKA GKVK POST, BANGALORE – 560 065.

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…PETITIONER

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(BY SRI. CHANDRASHEKAR P PATIL., ADVOCATE)

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AND:

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SRI. SHIVABASAPPA NEELAPPA NAVALGUND, Digitally signed S/O NEELAPA BASAPPA NAVALGUND, by JUANITA THEJESWINI AGED ABOUT 74 YEARS, Location: HIGH R/AT NO.2083, 4^TH CROSS, COURT OF KARNATAKA JUDICIAL LAYOUT, YELAHANKA, G.K.V.K. POST, BANGALORE – 560 065.

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…RESPONDENT

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(BY SRI. PRADEEP NAYAK., ADVOCATE)

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THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 30.10.2023 PASSED BY THE HONBLE XXXV

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NC: 2024:KHC:35039 WP No. 17128 of 2024

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ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT BENGALURU (CCH 36) IN O.S.NO.5026/2021 VIDE ANNX-A AND CONSEQUENTLY TO REJECT THE IA 6 FILED UNDER ORDER 3 RULE 1 AND 2 OF CPC BY THE RESPONDENT HEREIN AND ETC.,

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE R DEVDAS

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ORAL ORDER

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Sri.Pradeep Nayak, learned counsel has entered

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appearance for the respondent.

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The petitioner, being defendant in the original suit filed at the hands of the respondent claiming easementary rights, is aggrieved of the impugned order dated 30.10.2023. I.A.No.6 was filed by the plaintiff under Order III Rule 1 and 2

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read with 151 of CPC seeking permission of the Court to permit the Power of Attorney holder of the plaintiff to represent and lead evidence on behalf of the plaintiff. Though the prayer in the application was as such, nevertheless, in the operative portion of the impugned order, the trial Court has held that the application is disposed of with liberty to the plaintiff to adduce his evidence either by himself or through his power of attorney

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3 - NC: 2024:KHC:35039 WP No. 17128 of 2024

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holder. Learned counsel for the petitioner submits that either the application should have been allowed or rejected. Learned counsel submits that by passing the impugned order, the trial Court has kept it open for the plaintiff, depending on what is elicited from the power of attorney holder during the cross examination, the plaintiff can also enter the witness box.

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There is substance in the submission of the learned counsel for the petitioner. The law permits a party to the suit to enlist any person to enter the witness box on his behalf to give evidence. Therefore, it was always open for the plaintiff in the present case, to have enlisted his son as a witness of the plaintiff. However, when an application has been made by the plaintiff stating that his son/power of attorney holder should be permitted to represent the plaintiff and lead evidence on behalf of the plaintiff, such application should either have been allowed or rejected. At this juncture, learned counsel for the respondent/plaintiff submits that the impugned order may be clarified and made clear that the application is allowed and power of attorney holder as sought by the plaintiff will be permitted to lead evidence on behalf of the plaintiff.

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4 - NC: 2024:KHC:35039 WP No. 17128 of 2024

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Learned counsel for the petitioner/defendant is also satisfied with the submission made by the learned counsel for the respondent/plaintiff. This writ petition is accordingly disposed of while clarifying the impugned order that I.A.No.6 filed by the plaintiff is allowed and the power of attorney holder is permitted to represent the plaintiff and lead evidence on behalf of the plaintiff. Once the power of attorney holder enters the witness box and leads evidence on behalf of the plaintiff, the plaintiff will not be permitted to enter the witness box. All acts from now on can be done by the power of attorney holder on behalf of the plaintiff.

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Sd/(R DEVDAS) JUDGE

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rv List No.: 1 Sl No.: 3

Sri Palaxayya Shivamurthayya v. Sri Shivabasappa Neelappa Navalgund

Case brief

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What did the court decide?

Sri Palaxayya Shivamurthayya v. Sri Shivabasappa Neelappa Navalgund

Case brief

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What did the court decide?

What the court decided

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