IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF APRIL 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA W.P.No.57859/2017 (GM-CPC) BETWEEN:
1. Smt. Siddamma, W/o. Late Subbanna, Aged about 78 years, R/at 194/1, Konanakunte, Near Ganesha Temple, Kanakapura Road, Bengaluru – 560 062.
(Benefit of senior citizen not claimed) 2. Smt. Sharadamma, W/o. Late Siddappa, D/o. Late Subbanna, Aged about 59 years, R/at No.3, Konanakunte Cross, Omkar Real Estate, Kanakapura Road, Bengaluru – 560 062.
3. Smt. Sowbhagya Laxmi, W/o. Suresh M.
D/o. Late Siddlingappa, Aged about 53 years, R/o. 8th Cross, 7th Main Road, S.R. Nagara, Bengaluru – 560 027. ... Petitioners (By Sri Jeevan K., Advocate) AND:
Sri Sahasrarjun, S/o. Sri. K.P. Ganashyam, Aged about 27 years, R/at No.54, Kannayakana Agrahara Village, Uttarahalli Hobli, Bengaluru South Taluk. ... Respondent Pin-560 061 (By Sri Venkatesh T. Deshpande, Advocate) This Writ Petition is filed under Article 227 of the Constitution of India praying to quash the order on I.A.VI dated 03.11.2017 passed in O.S.No.4402/2014 on the file of VIII Additional City Civil and Sessions Judge, Bengaluru at Annexure – F and etc., This Writ Petition coming on for Orders, this day, the Court made the following:
O R D E R The defendants filed the present writ petition against the order dated 03.11.2017 on I.A.No.VI allowing the application filed by the plaintiff under Order III Rule 2 read with Section 151 of CPC made in O.S.No.4402/2014 on the file of the VIII Additional City Civil and Sessions Judge, Bengaluru.
2. The plaintiff-respondent herein filed the suit for permanent injunction restraining the defendants from interfering with the plaintiff’s peaceful possession and enjoyment of the suit schedule property contending that he is the owner of possession of the same, the defendants filed written statement denied the plaint averments.
3. When the matter was posted for evidence at that stage the plaintiff filed an application under Order III Rule 2 read with Section 151 of CPC for permission to represent the case through his power of attorney holder and prosecute the case. The said application was opposed by the defendants. The trail Court considering the application and objection by the impugned order allowed the application. Hence, the present writ petition is filed.
petitioners contended that the impugned order passed by the trial Court allowing the application filed by the plaintiff under Order III Rule 2 read with Section 151 of CPC is erroneous and contrary to law. He would further contend that the trial Court has not taken into consideration the objections filed to the application and further submits that the plaintiff in the application no where whispered regarding knowledge of the present general power of attorney about the facts of the case. Therefore, the trail Court ought to have rejected the application and sought to allow the petition by dismissing the application filed by the plaintiff.
6. Per contra, Sri.Venkatesh.T.Deshpande, learned counsel for the respondent sought to justify the impugned order and contended that it is a suit for permanent injunction, it is for the plaintiff to prove his case lawful possession based on the oral document and evidence. The Court cannot prevent any party prosecuting litigation and depending through power of attorney, therefore, sought to dismiss the petition.
7. Having heard the learned counsel for the parties, it is not in dispute that the trial Court considering the application and objection has recorded a finding that in a suit for permanent injunction question for consideration by this Court as to whether the plaintiff prove his lawful possession of the suit schedule property as on the date of suit and whether the plaintiff prove alleged incident by the defendants, in order to adjudicate the said issues if the I.A. is allowed and the plaintiff is permitted to prosecute the case through his power of attorney holder, no prejudice will be caused to the defendants and Court cannot prevent any party prosecuting the litigation through power of attorney holder. Accordingly, application came to the allowed.
8. In a suit for permanent injunction, if the power of attorney is allowed to prosecute the case, it is always open for the defendants to cross examine the PW1 based on the pleadings and no prejudice will be caused to the defendants. The petitioners have not made out any ground to interfere with the impugned order under Article 227 of Constitution of India.
Accordingly, the writ petition is dismissed.
Sd/- JUDGE KPS