IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NOS.1427/2015 & 2763/2015 (GM-CPC) BETWEEN:
SMT. LEELA VIJAY KUMAR W/O SRI. G.K. VIJAYA KUMAR AGED 59 YEARS R/O 3A APARTMENT, TRISHULA RESIDENCY ROSE GARDEN ROAD, J.P NAGAR 5TH PHASE BANGALORE-560078 G.V. RAGHAVENDRA S/O LATE G.V. RAO AGED ABOUT 52 YEARS R/O. 42/10, MODEL HOUSE 2ND STREET, BASAVANAGUDI BANGALORE-560004 REP. BY GPA HOLDER.
… PETITIONER (By Mr. G. KRISHNA MURTHY, SR. COUNSEL & Mr. PURUSHOTHAM R, ADV.) AND:
SMT. POOJA P KAMATH W/O SRI PRAMOD R KAMATH AGED ABOUT 52 YEARS R/AT. No.85, 1ST MAIN 1ST CROSS, OKALIPURAM BANGALORE-560021.
… RESPONDENT (By Mr. T.N. RAGHUPATHY, ADV.) - - -
These Writ Petitions are filed under Articles 226 & 227 of the Constitution of India, praying to quash Annex-G i.e., combined order dated 5.12.2014 passed by the V Additional City Civil and Sessions Judge, Bangalore on IA No.13 and IA No.14 in O.S. No.1923/2008 and allowing the same and etc.
These Petitions coming on for preliminary hearing in ‘B’ group this day, the Court made the following:-
ORDER Heard Sri.G.Krishna Murthy, Senior counsel for the petitioner on the question of admission.
2. In these petitions under Article 227 of the Constitution of India, the petitioners have assailed the validity of the order dated 05.12.2014 passed by the Trial Court, by which application preferred by the petitioners under Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the Code’ for short) seeking to examine the petitioner as Defendant Witness No.2 as well as an application seeking condonation of delay in filing the list of witnesses have been rejected.
3. Facts giving rise to filing of the writ petitions briefly stated are that respondent has filed the suit seeking the relief of specific performance of the agreement dated 06.10.2005. The total sale consideration is Rs.60 lakhs and it is the case of the respondent that a sum of Rs.3 lakhs was paid by way of advance and a sum of Rs.16 lakhs by way of cash towards brokerage expenses and leveling of the suit property. The Trial Court framed the issues. The respondent adduced his evidence. Thereafter, petitioner examined one G.V.Raghavendra, power of attorney holder for the petitioner as Defendant Witness No.1. During the course of cross examination, Defendant Witness No.1 stated that certain facts are only within the knowledge of the petitioner. The petitioner thereupon filed an application under Section 151 of the Code seeking permission to examine herself as Defendant Witness No.2. Another application was filed seeking condonation of delay in filing the list of witnesses. The Trial Court vide impugned order has rejected the applications.
4. Learned counsel for the petitioner submitted that certain facts were within the knowledge of the petitioner and therefore, the petitioner ought to have been permitted to examine herself as Defendant Witness No.2. In this connection, reliance has been placed on the decision of the Hon’ble Supreme Court in the case of ‘MAN KAUR (DEAD BY LRS) VS. HARTAR SINGH SANGHA’ (2010) 10 SCC 512 and it is contended that attorney holder cannot give evidence in case of principal for the acts done by the principal for transaction or dealings of the principal, of which principal alone has personal knowledge. On the other hand, learned counsel for the respondent has submitted that the petitioner has filed an affidavit in support of the application under Section 151 of the Code wherein it has been admitted that transaction referred to in the written statement was well within the knowledge of one G.V.Raghavendra, power of attorney holder and therefore, the applications under Section 151 have been filed with a view to fill up the lacunae. The attention of this Court has also been invited to the averments made in paragraph 6 of the plaint.
5. I have considered the submissions made by the learned counsel for the parties and have perused the record. From perusal of paragraph 4 of the affidavit filed in support of application under Section 151 of the Code, it is evident that the petitioner has stated that transactions referred to in the written statement were dealt with by her husband and the same were within the knowledge of one G.V.Raghavendra who was her cousin and power of attorney holder. It has further been stated that at the time of filing of written statement instructions were given by me which were also known to the power of attorney holder. Thus, the entire facts with regard to the transaction were within the knowledge of the attorney who is already examined as Defendant Witness No.1. Therefore, it appears that the applications under Section 151 of the Code were filed as an after thought with a view to fill up the lacunae in the statement of Defendant Witness No.1. The Trial Court, therefore, has rightly rejected the applications filed by the petitioner. The impugned order neither suffers from any jurisdictional infirmity nor any error apparent on the face of the record warranting interference of this Court in exercise of powers under Article 227 of the Constitution of India. Even otherwise, it is well settled in law that the jurisdiction of this Court under Article 227 of the Constitution cannot be exercised to correct all errors of a judgment of a Court acting within its limitation. It can be exercised where the orders is passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law and justice. [See: ‘JAI SINGH AND OTHERS VS. M.C.D. AND OTHERS’, (2010) 9 SCC 385, ‘SHALINI SHYAM SHETTY VS.
RAJENDRA SHANKAR PATIL’, (2010) 8 SCC 329 and ‘RADHE SHYAM AND ANOTHER VS. CHABBI NATH AND OTHERS’, (2015) 5 SCC 423]. Needless to state that it will be open to the petitioner to raise all such contention as may be permissible to him in law that the property in question belongs to the petitioner. The Trial Court shall adjudicate the same on merits.
6. In the result, I do not find any merit in the petitions. The same fails and are rejected.
Sd/- JUDGE RV