IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 50175 OF 2019 (GM-CPC) BETWEEN:
1. M/S ROYAL STAR HOLDINGS, NO.38, 4TH CROSS, 4TH BLOCK, RAMAKRISHNA NAGAR, NANDINI LAYOUT, BANGALORE-560096.
REPRESENTED BY MR. L.AMAR KUMAR, BHATIA, SON OF MR. L.S.BHATIA, AGED ABOUT 43 YEARS.
2. MR. L.AMAR KUMAR BHATIA, SON OF MR. L.S.BHATIA, AGED ABOUT 43 YEARS, AT NO.38, 4TH CROSS, 4TH BLOCK RAMAKRISHNA NAGAR, NANDINI LAYOUT, BANGALORE-560 096. (BY SRI. VIKHAR AHMED.B, ADVOCATE) AND:
1. SMT. V.ANUPAMA, AGED ABOUT 37 YEARS, WIFE OF MR. SIDDESH AT NO.329,4TH CROSS, RMV 2ND BLOCK, 2ND PHASE, BENGALURU-560094 ... PETITIONERS 2. M/S AVS ADVERTISERS, AT NO.398, 4TH CROSS, RMV 2ND BLOCK, 2ND PHASE, BENGALURU-560094 REPRESENTED BY SMT. V.ANUPAMA, AGED ABOUT 37 YEARS, WIFE OF MR. SIDDESH ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 20.09.2019 PASSED BY THE XXVII ACCJ BENGALURU IN O.S.NO.6048/2017 VIDE ANNX-R.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioners being the defendants in an injunctive suit in O.S.No.7535/2014 filed by the respondents herein are invoking the writ jurisdiction of this Court for assailing the order dated 20.09.2019, a copy whereof is at Annexure-R, whereby, his application filed under Section 151 of CPC, 1908 for discarding the evidence tendered on behalf of the plaintiff by his Special Power of Attorney Holder, has been dismissed.
2. Having heard the learned counsel for the petitioners and having perused the petition papers, this Court declines to grant indulgence in the matter for the following reasons:
a) the question whether the Special Power of Attorney Holder if at all can depose on behalf of the plaintiff in view of rigor enacted under Order III Rule 2 of CPC, 1908, can be urged before the Court below when the matter is taken up for hearing, banking upon the decision of the Apex Court in the case of JANAKI VASHDEO BHOJWANI AND ANOTHER APPELLANTS V. INDUSIND BANK LTD., AND OTHERS RESPONDENTS, AIR 2005 SC 439 which is pressed into service here;
b) eschewing the evidence on record is a serious matter which the Court would not readily accede to in the absence of specific grounds; whether such grounds are there or not is not examined by this Court since the matter is writ large in the Court below regardless of observations in the impugned order; and, c) the impugned order being the product of exercise of discretion, by the court below, ordinarily is not susceptible to a deeper examination at the hands of the Writ Court under Article 227 of the Constitution of India as held by the Apex Court in the case of SADHANA LODH VS. NATIONAL INSURANCE COMPANY, AIR 2003 (3) SCC 524 With the above observations, this writ petition is disposed off, keeping open all contentions of the parties for being treated by the Court below.
Sd/- JUDGE DS