Dismissed

Mrs. M. Anbammal v. Mr. M. Ashok Kumar @ Jayaram

Karnataka HC20 Sept 2024WP/48120/2019

Case brief

AI extract

What is this about?

Plaintiff challenged rejection of her application to let her husband depose as her attorney under Order III Rules 1 & 2 CPC. The High Court found no reason was shown why she could not herself enter the witness box, noted the remedy under Order XLIII Rule 1A per Vipan Aggarwal, and dismissed the petition.

What did the court decide?

None granted; costs made easy; liberty reserved under Order XLIII Rule 1A CPC to raise rejection as a ground in appeal against decree.

Mrs. M. Anbammal Vs Mr. M. Ashok Kumar @… — Civil Procedure and Limitation | Karnataka HC (2024)

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NC: 2024:KHC:38902 WP No. 48120 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 20^TH DAY OF SEPTEMBER, 2024 BEFORE

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THE HON'BLE MR JUSTICE KRISHNA S DIXIT WRIT PETITION NO. 48120 OF 2019 (GM-CPC)

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BETWEEN:

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MRS. M. ANBAMMAL, AGED ABOUT 60 YEARS, W/O SRI.G.RAJU, R/AT NO.331/1, THILAGA ILLAM, NEW THIPPASANDRA, BENGLAURU-560 075.

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…PETITIONER (BY SRI. SUKUMARAN G.,ADVOCATE)

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AND:

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Digitally signed by SHARADA VANI B Location: HIGH COURT OF KARNATAKA

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MR. M. ASHOK KUMAR @ JAYARAM, AGED ABOUT 45 YEARS, S/O SRI.D.MUNISHAMAPPA, #219, 19^TH CROSS, NEAR ANJANEYA TEMPLE, KAGGADASAPURA, BENGALURU-560 093.

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…RESPONDENT

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(RESPONDENT IS SERVED)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER ON I.A.NO.2, DATED 21.8.2019 IN O.S.NO.25828/2018 PASSED BY THE ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT BENGALURU, (CCH-29) VIDE ANNEXURE-D.

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THIS WRIT PETITION, COMING ON FOR PRELIMINARY HEARING IN B GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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2 - NC: 2024:KHC:38902 WP No. 48120 of 2019

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CORAM: HON'BLE MR JUSTICE KRISHNA S DIXIT

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ORAL ORDER

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This petition calls in question order dated 21.8.2019 whereby, the learned XXVIII Additional City Civil Judge, Bengaluru, has rejected the petitioner-plaintiff’s application in I.A.No.2/2019 filed under Order III Rules 1 & 2 read with Section 151 of Code of Civil Procedure, 1908, wherein a prayer was made to permit petitioner’s husband to act as her attorney and to lead evidence on her behalf.

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Learned counsel for the petitioner is absent.

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The sole respondent having been served with court process has chosen to remain absent & unrepresented. However, that will not come in the way of this court considering the matter on merits on the basis of records.

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Matter does not call for interference inasmuch

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as no reason is assigned in the affidavit accompanying the subject application as to why the petitioner herself cannot

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3 - NC: 2024:KHC:38902 WP No. 48120 of 2019

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enter the witness box to depose. Ordinarily, the plaintiff or the defendant should enter the witness box for deposing before the court subject to all just exceptions into which case of the petitioner does not fit. This reason having animated the impugned order, the same cannot be faltered.

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The above apart, rejection of the subject application can be made one of the grounds for challenging the judgment & decree, if and when they go against petitioner’s interest, as provided under Order XLIII Rule 1A of CPC, 1908 as amended in 1976 vide Apex Court decision in VIPAN AGGARWAL vs. RAMAN GANDOTRA , (2023) 10 SCC 529.

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In the above circumstances, this Petition being devoid of merits, is liable to be dismissed and accordingly, it is, costs having been made easy.

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Liberty in terms of Order XLIII Rule 1A of CPC, 1908 as observed above is reserved.

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NC: 2024:KHC:38902 WP No. 48120 of 2019

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Registry to send a copy of the judgment to the

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parties by Speed Post immediately.

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