IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13th DAY OF MARCH 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.25906/2018 (GM-CPC) BETWEEN:
SMT. KANTHAMMA @ KADIRAMMA, W/O LATE T. GOPALAIAH, AGED ABOUT 70 YEARS, R/AT NIDAGATTA VILLAGE, SANTHEHALLI POST, KASABA HOBLI, MALUR TALUK – 560 130, KOLAR DISTRICT.
REPRESENTED BY HER GPA HOLDER.
SRI.G.LAKSHMINARYANA, AGED ABOUT 46 YEARS, S/O LATE T.GOPALAIAH, R/AT NIDAGATTA VILLAGE, SANTHEHALLI POST, KASABA HOBLI, MALUR TALUK – 560 130, KOLAR DISTRICT.
... PETITIONER (BY SRI ANANTHARAM G.R. ADV.) AND:
SRI.CHIKKANARASAPPA, S/O LATE KADIREPPA, SINCE DECEASED BY HIS LRs.
RESPONDENTS 1 TO 3 HEREIN 1. SRI.ASHWATHANARAYANA, S/O LATE BYATARAYAPPA, AGED ABOUT 56 YEARS, 2. SRI.SATHYANARAYANA, S/O LATE BYATARAYAPPA, AGED ABOUT 51 YEARS, 1 & 2 ARE RESIDENTS OF NIDAGATTA VILLAGE, MALUR TALUK, KASABA HOBLI, SANTHEHALLI POST, MALUR TALUK.
R/O JAYAMANGALA VILLAGE, LAKKUR HOBLI, MALUR TALUK – 560 130. KOLAR DISTRICT.
3. SMT. LAKSHMAMMA, W/O SRI.CHANNARAYAPPA, D/O SRI.BYATAPPA ALSO KNOWN AS BYATARAYAPPA, AGED ABOUT 52 YEARS, RESIDENT OF GANGAPURA VILLAGE, NANDAGUDI HOBLI, HOSKOTE TALUK, BANGALORE DISTRICT – 562 114.
... RESPONDENTS (BY SRI VIGNESHWAR S SHASTRI ADV. FOR R1 & R2; NOTICE OT R3 IS DISPENSED WITH V/O DATED 13.03.2019) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO ALL FOR RECORDS IN O.S.NO.24/2011 ON THE FILE OF THE LEARNED SENIOR CIVIL JUDGE, MALUR, KOLAR KISTRICT; QUASH THE ORDER DATED 14.06.2018 AT ANNEXURE – N PASSED BY THE LEARNED SR.CIVIL JUDGE, MALUR, KOLAR DISTRICT, WRONGLY DISMISSING I.A.22 FILED BY THE PLAINTIFF UNDER ORDER III RULE 2 OF CPC IN O.S.24/2011 AND ETC., THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The plaintiff filed the present writ petition against the order dated 14.06.2018 on I.A.22 made in O.S.No.24/2011 rejecting the application filed by the plaintiff under Order 3 Rule 2 Code of Civil Procedure. The plaintiff filed the suit for declaration of title and for permanent injunction in respect of item Nos.1 to 12 of the suit schedule properties morefully described in schedule contending that she is the absolute owner and in possession and enjoyment of the same.
2. Defendants filed written statement denying the plaint averments and contended that the plaintiff is not the owner of the property in question, it belongs to one Chikkanarasappa, defendant No.1 and sought for dismissal of the suit.
3. Before framing issues, plaintiff filed application under Order 3 Rule 2 of C.P.C. for permission of the trial Court to produce GPA executed by the plaintiff to represent and conduct the case on behalf of the petitioner through her G.P.A. holder contending that plaintiff is unable to appear before the court as she is suffering from diabetes and orthopedic problem of legs and also suffering from nerve weakness of legs and hands and unable to attend the case proceedings of the Court and she is aged about 65 years. G.P.A holder is son of the plaintiff has having knowledge about the suit schedule properties and is capable to appear before the Court and giving evidence on behalf of the plaintiff. The defendants file objections to the said application.
4. The trial court after considering the application and objections filed by the defendants, by an impugned order dismissed the application. Hence, being aggrieved by the same present writ petition is filed.
5. I have heard the learned counsel appearing for the parties to the lis.
6. Sri Anantharam G.R. learned counsel for the petitioner contended that the impugned order passed by the trial court, rejecting the application filed by the plaintiff under Order 3 Rule 2 of CPC is erroneous. He further contended that learned Judge erred in holding that the plaintiff has not furnished a single piece of document to prove that she was suffering from aliments which is stated in the application, ignoring the fact that the plaintiff has produced the list of documents, medical certificates, eye operation document filed on 09.03.2018. Without considering the said documents on record, the learned Judge by impugned order dated 14.06.2018 dismissed I.A.No.22 filed by the plaintiff-petitioner which is erroneous. Therefore, he sought to allow the writ petition.
7. Per contra, Sri Vigneshwar S. Shastri, learned counsel appearing for respondents No.1 and 2 submits that original plaintiff is capable to appear before the court and to lead evidence and there is no need to file application under Order 3 Rule 2 of C.P.C. He further submits that plaintiff’s son G.P.A. holder has not produced any documents along with the application before the Trial court. Hence, the Trial Court was justified in rejecting the application and he sought to dismiss the writ petition.
8. Having heard the learned counsel for the parties, it is an undisputed fact that plaintiff filed suit for declaration and permanent injunction in respect of the suit schedule properties and it is the contention of the plaintiff that she is the owner of the suit properties in question and same was disputed by defendants by filing written statement. When the application filed by the plaintiff under Order 3 Rule 2 C.P.C., of course along with the application no documents were produced but the impugned order came to be passed rejecting the application on 14.06.2018, but the medical certificates were issued by the Government Hospital, Kolar and by other orthopedic private hospital issued on 09.03.2018 clearly depicts that plaintiff is suffering from the diseases as stated in the application. The learned judge has not at all considered the said medical certificates before passing the impugned order.
9. Admittedly, the suit is filed for declaration of title and for permanent injunction in respect of item Nos.1 to 12 of the suit schedule properties. The case of the plaintiff is that she is aged about 65 years and suffering from diabetic and orthopedic problem and she could not attend the court. If it is so, it is for the plaintiff to prove her case through her son under Order 3 Rule 2 of C.P.C and it is always open for the defendants to cross examine the G.P.A. holder of the plaintiff.
10. Since the defendants have made out that documents is not produced along with the application filed under Order 3 Rule 2 of C.P.C., the learned Judge is not justified in rejecting the application mainly on the ground that plaintiff is unable to attend the court in the presence of the documents produced before the Trial Court on 09.03.2018. On that ground also impugned order cannot be sustained.
11. In view of the above, writ petition is allowed.
Impugned order dated 14.06.2018 passed by the Trial Court on I.A.No.22 made in O.S.No.24/2011 on the file of the Civil Judge (Sr.Dn.) Malur is hereby quashed. I.A.22 filed by the plaintiff under Order 3 Rule 2 of C.P.C. is hereby allowed.
Ordered accordingly.
Sd/- JUDGE HR