IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF NOVEMBER 2019 BEFORE THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV WRIT PETITION No.54593/2015 (GM-CPC) BETWEEN:
SRI ANJANMURTHY, S/O LATE HANUMANTHAIAH, AGED ABOUT 51 YEARS, R/A TOTADAGUDDADHALLI, POST: NAGASANDRA, DASANAPURA HOBLI, BANGALORE NORTH, BANGALORE – 56. … PETITIONER (BY SRI NAGARAJ HEGDE, ADVOCATE) AND:
1. SMT. KAMALAMMA, W/O MUNIRAJU, AGED ABOUT 37 YEARS.
2. SMT. ASHA, D/O LATE MUNIRAJU, AGE 22 YEARS.
3. SRI SANTOSH, S/O LATE MUNIRAJU, AGE 20 YEARS.
(ALL ARE RESIDING TOTADAGUDDADHALLI, POST: NAGASANDRA, DASANAPURA HOBLI, BANGALORE NORTH TALUK, BANGALORE – 56.) … RESPONDENTS (RESPONDENTS – SERVED) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER ON I.A. NO.VIII DATED 20.06.2015 PASSED BY THE HON’BLE ADDITIONAL CIVIL JUDGE AND JMFC NELAMANGALA AT NELAMANGALA IN O.S. NO.344/2013 VIDE ANNEXURE-A AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner who is the plaintiff before the trial Court had filed a suit seeking the relief of cancellation of sale deed dated 03.02.2006 stated to have been registered before the Sub-Registrar, Bangalore North Taluk by defendant No.2 in favour of defendant No.1. After notice was issued, the defendants have appeared and filed the written statement.
2. It is the specific contention of defendants that the plaintiff himself had executed the power of attorney in favour of defendant No.2 on 01.12.2005 after collecting a sum of Rs.3.00 lakhs. The plaintiff, however, does not accept the said version of defendants and during cross-examination of DW-1, it has come out that sale deed was executed on the basis of General Power Attorney executed.
3. It is further deposed by DW1 that General Power of Attorney was executed by the plaintiff before the notary, Sri P.A.Monnappa and that signatures were affixed in the Notary Register.
4. It is the case of the petitioner that in order to disprove the said version of defendants in light of the specific stand of the plaintiff that no such General Power of Attorney was executed in favour of defendant No.2, it was necessary to summon the notary as well as the Notary Register.
5. It is stated that the application that was filed has been dismissed by the trial Court without adverting to the reasons assigned though a case was made out by the petitioner for summoning of notary and for production of documents. It is contended that the trial Court has merely stated that plaintiff has not been diligent and that the plaintiff was not regular in attending the Court proceedings.
6. It is to be noted that the case of the petitioner that is made out is that the stand taken by the defendants regarding execution of General Power of Attorney in favour of defendant No.2 by the plaintiff is a false assertion. It is for this purpose, the petitioner has cross-examined DW1 at length and has elicited answers and particulars regarding the alleged execution of General Power of Attorney, which is denied by the plaintiff. In order to prove his case, the plaintiff seeks to examine the notary whose name has been mentioned in the deposition of DW1.
7. The manner in which the trial is to be conducted is a matter best left to the parties concerned in the present case. The specific assertion by the defendants that General Power of Attorney has been executed in favour of defendant No.2 by the plaintiff is not accepted by the plaintiff. It is for this purpose that the plaintiff seeks to summon the notary as well as Notary Register.
8. In fact, the plaintiff has made a specific suggestion to DW1 that no General Power of Attorney was executed before the notary nor that parties affixed signature in the notary register.
9. Taking note of the above and also noting that the whole suit relates to cancellation of sale deed and it is the case of defendants that sale deed has been executed on the basis of General Power of Attorney executed in favour of defendant No.2, the request made by the plaintiff by invoking Order 16 Rule 2 of C.P.C. is a bona fide request and is to be considered taking note of the purpose for such witness sought to be summoned.
10. Accordingly, the impugned order is set aside and the application filed by the plaintiff, I.A.No.8 is allowed and the petitioner–plaintiff is permitted to summon the notary as well as Notary Register from his custody.
Accordingly, petition is allowed, subject to the above observations.
Sd/- JUDGE VGR