Smt.Susheelamma Vs Sri.C. Nagaraju

SRI.C. NAGARAJU S/O CHINNAPPA, AGED ABOUT 65 YEARS, R/AT NO.477, KRISHNA NILAYA, 5TH CROSS, BALEGERE ROAD, \VARTHUR POST, BENGALURU EAST TALUK, BENGLAURU-560087.

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SRI. CHINNAPPA,

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SINCE DEAD HIS LRS.,

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SRI C KANNAPPA @ KANNARAJU S/O CHINNAPPA, AGED ABOUT 63 YEARS, R/AT CHIKKANAYAKANAHALLI, CARMELARAM POST, BENGALURU-560035.

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SMT. SHIVAMMA D/O CHINNAPPA, AGED ABOUT 60 YEARS, R/AT KADABISANAHALLI, PANATHURU POST, VARTHUR HOBLI, BENGALURU EAST TALUK, BENGALURU-560 103.

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SRI.NARAYANASWAMY, S/O CHINNAPPA, AGED ABOUT 55 YEARS, R/AT DODDAKANNALLI, CARMELRAM POST, BENGALURU-560035.

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SRI.JAYARAM S/O CHINNAPPA, AGED ABOUT 47 YEARS, R/AT CHIKKANAYAKANAHALLI, CARMELRAM POST, BENGALURU-560 035.

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SMT. PRABHAVATHI, D/O CHINNAPPA, W/O DAYASHANKAR, AGED ABOUT 49 YEARS, R/AT C.R.P.F. QUARTERS, YELAHANKA, BENGALURU-560 064.

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AT PRESENT RESIDING AT NO.14/10, KODATHI GATE, SARJAPURA MAIN ROAD, CARMELRAM POST, BENGALURU-560035.

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SMT. PUSHPAVATHI, W/O ADISHESHA, AGED ABOUT 44 YEARS, R/AT KODATHI VILLAGE, CARMELRAM POST,

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VARTHUR HOBLI, BENGALURU-560035.

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SRI.H.SRINIVAS REDDY, S/O LATE HANUMANTHA REDDY, AGED ABOUT 64 YEARS, R/AT HALANAYAKANAHALLI VILLAGE, CARMELARAM POST, VARTHUR HOBLI, BENGALURU-560035.

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DSR INFRASTRUCTURE PVT LTD, (REGD UNDER THE PROVISIONS OF COMPANIES ACT, NO.220, DSR DIYA ARCADE, 1ST FLOOR, 9TH MAIN ROAD, HRBR LAYOUT, I BLCOK, KALYANNAGAR, BENGALURU-560043. (REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER)

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…RESPONDENTS

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(BY SRI. NAGAIAH, ADVOCATE FOR R1; SRI. K.K. VASANTH, ADVOCATE FOR C/R-6 AND R-7)

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THIS W.P. IS FILED UNDER ARTICLE 227 OF CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS IN OS NO. 369/2010 PENDING ON THE FILE OF THE IV ADDL. SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT AT BENGALURU, AND SET ASIDE THE ORDER DTD 16.10.2024 PASSED ON IAs DTD 22.07.2024 FILED BY THE PETITIONER UNDER ORDER 3 RULE 2 R.W.S 151 OF THE CPC SEEKING TO PERMIT THE SPA HOLDER OF THE DEFENDANT NO. 4/PETITIONER TO PROSECUTE THE OS NO. 369/2010 AND APPLICATION UNDER SEC 151 OF CPC TO DISCARD THE EVIDENCE OF DW-2 (ANNEXURE-A) AND CONSEQUENTLY ALLOW THE APPLICATION FILED BY THE PETITIONER UNDER ORDER 3 RULE 2 R.W.S 151 OF THE CPC (ANNEXURE-D) AND APPLICATION UNDER SEC 151 OF CPC (ANNEXURE-E) BY ALLOWING THIS WRIT PETITION.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

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ORAL ORDER

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This petition is filed by the petitioner, who is defendant

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No.4 before the trial Court, aggrieved by the order dated 16.10.2024 whereby defendant No.4 filed an application under Order 3 Rule 2 of CPC, seeking to permit the SPA holder of defendant No.4 to prosecute the case on behalf of defendant No.4 and also to discard the evidence of DW2, the said application came to be rejected by the trial Court and posted the matter for appearance of DW2 for further crossexamination.

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It is the contention of learned counsel for petitioner/defendant No.4 that the petitioner is aged about 60 years and suffering from pain in the ears since December 2022 and she has visited doctors in the nearby locality and she has been instructed to approach Victoria Hospital, Bengaluru, for further treatment regarding the ear pain. It is also contended that the petitioner has visited Victoria Hospital and after giving

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her health condition details to the doctors, upon various examination, the doctors have told the petitioner that she is suffering from lumbago anxiety, hearing defers in both ears, rectal bleeding, abdominal pain, chronic fatigue and other old age related ailments. In this regard petitioner is unable to travel and walk for long distance, unable to hear properly and therefore due to these conditions she was unable to prosecute the suit in O.S.No.369/2010 personally for tendering herself for further cross-examination.

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It is a contention of learned counsel for the

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petitioner that in view of the medical disability and pain and other old age related ailments stated herein above, he filed an application under Order 3 Rule 2 r/w Section 151 CPC to permit the Special Power of Attorney Holder who is none other than her son to prosecute the original suit on her behalf consequently to discard her evidence as DW2. It is a contention of learned counsel for the petitioner that the trial Court having dismissed both the applications, is illegal, arbitrary and perverse and the same deserves to be set aside. It is the contention of learned counsel for the petitioner that the trial

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Court has ignored to look into the aspect of the medical illness and the old age of the petitioner due to which she was unable to be personally present before the Court after briefly appearing at one instance where she was briefly crossexamined. Thereafter, the matter was adjourned from time to time and subsequently, memo filed on 10.01.2023 by the plaintiff came to be rejected and the case was adjourned for cross-examination of DW2 finally. It is contended that, thereafter DW2 has appeared and she was partly crossexamined. The matter came to be adjourned, on which day DW2 failed to appear and the application came to be filed to represent her through the Special Power of Attorney Holder.

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It is the contention of learned counsel for the petitioner that even till this date the petitioner is suffering from pain in the ear and other old age ailments. It is the contention of learned counsel that despite her medical treatment taken pursuant to the order passed by this Court on 17.12.2024, whereby this Court directed the petitioner to be examined by a Medical Board to find out her disability both mental and physical. Based on which, a medical report is produced before

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this Court. The medical report submitted does not however support the case of the petitioner, as the opinion expressed is apart from other evaluations to the petitioner, the patient's hearing sensitivity is within normal limits for both right and left ear, is opined by the Medical Board. Therefore, it can be safely construed that the hearing capacity of the petitioner is normal. It is a different matter that she may be suffering from various other ailments.

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It is further contention of learned counsel for the petitioner that he now intends to examine the Special Power of Attorney Holder on behalf of DW2, to subject himself for further cross-examination as DW2. Therefore, he has preferred the application to examine the Special Power of Attorney Holder in furtherance to the evidence of DW2 as DW2's further evidence by subjecting himself for further cross- examination as DW2. Upon hearing, this application is rejected by the trial Court on the ground that the petitioner has not produced medical records and documents or any prescription or permanent difficulty either physical or mental, to show that she cannot attend the Court to give her evidence as she has already

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subjected herself to evidence and cross-examination partly and that she cannot avoid herself to tender for cross-examination at this stage. It is a contention of learned counsel for the petitioner that the order passed by the trial Court is illegal, perverse and arbitrary, the same requires to be set aside. The petitioner be provided an opportunity to subject the Special Power of Attorney Holder for further examination or further cross-examination as DW2. Accordingly, seeks to set aside the order and allow this petition.

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Per contra , learned counsels representing the

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respondents vehemently contend that there is no illegality or perversity in the order passed by the trial Court by rejecting the application filed by defendant No. 4 to examine the Special Power of Attorney as DW2 on behalf of defendant No.4 in furtherance to the evidence already adduced by DW2, defendant No. 4 and to discard the evidence of defendant No.4 which would not arise in the present case on hand for the reason that DW2 has examined herself in chief. She has subjected herself to cross-examination. There are some admissions which have been elicited by the plaintiffs in the

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cross-examination. Therefore, the evidence of DW2 cannot be discarded in the guise of the witness being unwell or suffering from hearing disability or for that matter any other physical or mental disability.

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It is further contended by learned counsels for the respondents that once defendant No.4 witness has adduced evidence as DW2 by leading her in chief evidence and subjected to cross-examination partly, thereafter, she cannot refrain herself from appearing before the Court for subjecting herself to cross-examination and seek another person to replace her for the purpose of cross-examination in view of some elicitations already made by the respondents in the crossexamination. The learned counsels for respondents contend that they do not have any objection if the power of attorney holder is examined as a separate witness of defendant No. 4, but she cannot replace DW2 as a witness to be further-cross examined in continuation of the evidence and the discarding of evidence of DW2 cannot be done. On these grounds they seek to dismiss the petition by contending that there is no illegality or perversity in the order.

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After the present petition is filed by the petitioner, this Court directed defendant No.4/DW2 to subject herself for medical examination by the Medical Board to find out whether petitioner is afflicted by any ailments that has debilitated her physical/mental abilities and was directed to appear before the Medical Board, Victoria Hospital on 30.12.2024 at 11.00 a.m. and directed the Medical Board to submit a report with regard to her medical condition, both mental and physical ability to depose before the Court. The medical report has been furnished by the Medical Board wherein the opinion reads as under:

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"She was evaluated by Psychiatrist and E.N.T. Surgeon, Victoria Hospital, Bengaluru has opined that the Psychiatrist has opined that the patient requires detailed evaluation under In-patient care. However, the patient and attender did not turn up for admission for a detailed evaluation. The E.N.T. Surgeon has opined that - Based on audiological evaluation done at NIMHANS, dated 21.01.2025 with SPA No.104831. The patient's hearing sensitivity is within normal limits for both right and left ear."

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Having perused the opinion of the Medical Board, it is apparently clear that upon the Medical Board having conducted an examination on the patient i.e. defendant No.4, they had opined that she requires detailed evaluation under

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inpatient care. But, however the patient and attender did not turn up for admission for a detailed evaluation. Thereafter, the ENT surgeon has opined that based on audiological evaluation done at NIMHANS dated 21.01.2025 with SPA No.104831, the patient's hearing sensitivity is within normal limits for both right and left ear. When such opinion is expressed by the Medical Board, all the contentions raised by defendant No.4 with regard to not subjecting herself for cross-examination on the reason so assigned regarding the disability of the witness DW2 falls flat on the ground and holds no water. Now the next question is whether the evidence of DW2 can be discarded which is already before the trial Court. The answer to this is certainly 'No' , it cannot be discarded.

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It is seen that DW2 has examined herself and has subjected herself partly for cross-examination and certain elicitations are made by the plaintiff in the cross-examination. It was stated that due to old age ailments and the medical disability and suffering from pain in the ears she was unable to subject herself for cross-examination. Under the circumstances, DW2 may have to subject herself for cross-examination, if she

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so wishes, otherwise an adverse inference may have to be drawn by the trial Court. Insofar as examination of the Power of attorney Holder on behalf of DW2, in furtherance to the evidence of DW2 cannot be acceded, as the evidence of DW2 is already on record, it is for the DW2 to subject herself for further cross-examination either physically before the Court or seek permission from the trial Court for a Commission being appointed for subjecting herself to further cross-examination. The further contention of the learned counsel for the petitioner that, if he wants to examine the Special Power of Attorney Holder as additional witness of defendant No.4, she is at liberty to examined as a separate witness and not in continuation of the evidence adduced by DW2 and certainly not as DW2.

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In view of the aforesaid discussions, I do not find any good ground or co-gent reason to interfere with the well reasoned order passed by the trial Court. Accordingly, I pass the following:

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