IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.9931 OF 2017 (GM-CPC) BETWEEN KUMARI CHANDANA, D/O JANARDHAN, AGED ABOUT 19 YEARS, REPRESENTED BY HER FATHER & SPECIAL POWER OF ATTORNEY HOLDER SRI. JANARDHAN, S/O LATE KRISHNAPPA, AGED ABOUT 47 YEARS, R/O NO.29, II CROSS, NANJA ARASAPPA LAYOUT, BEHIND CANARA BANK COLONY, NAGARABAVI MAIN ROAD, BANGALORE-560072. … PETITIONER (BY SRI. SHANMUKHAPPA, ADVOCATE) AND 1. SMT. SHARADA, W/O LAKSHMAN, AGED ABOUT 57 YEARS, R/O NO.9, 4TH MAIN, NANJA ARASAPPA LAYOUT, BEHIND CANARA BANK COLONY, NAGARABHAVI MAIN ROAD, BANGALORE-560072.
2. SMT. ARUNA, CLAIMING TO BE WIFE OF LATE LAKSHMAN, AGED:36 YEARS, R/O NO.53, 1ST MAIN, III CROSS, MAGADI MAIN ROAD, NEAR GANESHA TEMPLE, KOTIGE PALYA, BANGALORE-560091.
3. SYNDICATE BANK SUNKADAKATTE BRANCH, 12TH KM, MAGADI ROAD, SUNKADAKATTE, BANGALORE-560091, REPRESENTED BY ITS MANAGER.
4. CANARA BANK, MAGADI ROAD BRANCH, NO.78/1, 4TH MAIN, MAGADI ROAD, BANGALORE-560023, REPRESENTED BY ITS MANAGER. …RESPONDENTS (BY SRI. K.VIJAYAKUMAR, ADVOCATE FOR R2;
R-1, R-3 & R-4 ARE SERVED & UNREPRESENTED) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 17.2.2017 PASSED BY THE LEARNED CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY IN O.S.7970/2014 AND THEREBY ALLOW I.A.5 FILED BY THE PETITIONER UNDER ORDER 3 RULE 2 OF THE CPC AT ANNEX-A AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING – B GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner, a college going girl being the plaintiff in a partition suit in O.S.No.7970/2014, is grieving before this court because of order dated 17.02.2017, a copy whereof is at Annexure – A, whereby the learned XX Addl. City Civil Judge, Bengaluru, having rejected her application in I.A.No.V filed under Order III Rule 2 of CPC, has denied permission to her Special Power of Attorney who is none other than her father for deposing from plaintiff side.
2. After service of notice, the 2nd respondent has entered appearance through her counsel and resists the Writ Petition. The other respondents despite service of notice have chosen to remain unrepresented.
3. Having heard the learned counsel for the parties and having perused the Petition Papers, relief needs to be granted to the petitioner because:
(a) it is true that ordinarily the parties to a suit need to enter the witness box for deposing so that all facts within their knowledge can be spoken of; however, a few exceptions are recognized to this general rule into which the case of the petitioner fits inasmuch as the Power of Attorney now sought to be appointed is none other than petitioner’s father;
(b) the suit was filed in 2014 by the father as the guardian of the petitioner who was a minor then; thus, the father is in full know of the facts of the case if not more than the petitioner herself; it is only in the recent past, the petitioner on attaining majority, got the guardian discharged from the case; therefore, the contention that petitioner herself should enter the witness box is unsustainable; and, (c) the contention of the contesting respondent that no difficulty would be caused to the petitioner who is prosecuting her studies hundreds of kilometers away from Bangalore, if she is examined on commission at his cost, again is unsustainable; this contention is founded on the arguable hardship to the petitioner to come to Bangalore and depose, however, that is not the case of the petitioner at all; what prejudice would be caused to the respondents if her father deposes is not coming forth.
In the above circumstances, this Writ Petition succeeds; impugned order is set at naught; petitioner’s subject application having been favoured, her father Sri.Janardhan as the Special Power of Attorney holder is permitted to depose on her behalf in the suit.
The learned trial Judge is requested to try and dispose off the suit, preferably within a period of one year.
Costs made easy.
Sd/- JUDGE cbc