IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 8TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 33829 OF 2016 (GM-CPC) BETWEEN:
SRI COL.K.JAGANATHAN S/O LATE SRI M KRISHNA IYENGAR AGED ABOUT 72 YEARS R/AT NO.56 (NEW NO.197) 1ST FLOOR, (FRONT PORTION), WEST PARK ROAD, MALLESHWARAM, BANGALORE-560 055 (BY SRI. T R RAJESHWARI, ADVOCATE) AND:
1. SRI K VENKATESH S/O LATE SRI M KRISHNA IYENGAR AGED ABOUT 67 YEARS R/AT NO.56(NEW NO.197) GROUND FLOOR (FRONT PORTION), WEST PARK ROAD, MALLESHWARAM, BANGALORE-560 055 2. SRI M.A.SRIKANTH AGED MAJOR, R/AT NO.350,2ND FLOOR, SAMPIGE ROAD, BETWEEN 10TH AND 11TH CROSS, MALLESHWARAM, BENGALURU-560055.
AMENDED V.C.O DATED 08.07.2019.
... PETITIONER ... RESPONDENTS (BY SRI. KANTH M A, C/R; R2 SERVED UNREPRESENTED) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED BY THE XXXIX ADDITIONAL CITY CIVIL & SESSION JUDGE (CCH.NO.40) BANGALORE ON INTERIM APPLICATION UNDER ORDER III RULE 4 R/W SECTION 151 OF C.C.P.IN.O.S.NO.5279/2013 DATED 22.4.2016 AT ANEXURE-A AND CONSEQUENTLY ALLOW THE APPLICATION FILED BY THE PETITIONER AT IA NO.3 UNDER ORDER III RULE 4 OF THE CODE OF CIVIL PROCEDURE.
THIS PETITION COMING ON FOR PRELIMINMARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioner being the defendant in O.S.No. 5279/2013 filed by the respondent – plaintiff herein is invoking the writ jurisdiction of this Court calling in question the order dated 22.04.2016 a copy whereof is at Annexure-A whereby the learned XXXIXth Additional City Civil Judge, Bengaluru, has rejected petitioner’s application for the termination of vakalath of respondent’s advocate in the trial Court namely, Shri M A Srikanth who happens to be the second respondent herein. The respondents having entered appearance, oppose the writ petition.
2. Learned counsel for the petitioner vehemently argues that the stand of the parties in the suit is founded on a registered Gift Deed dated 31.03.2006 and a registered Will dated 21.06.2006, in the making of which the second respondent being the advocate of the family of the parties had a great role and consequently necessarily he has to be examined as a witness in the suit from the side of the petitioner; that being the position, a person who is most likely to be witness in the suit cannot be the counsel for the parties thereto. This having not been considered in its right perspective, the impugned order is liable to be struck down.
There is no contra submission from the respondent side. The argument advanced on behalf of the petitioner side being prima facie established, this writ petition needs to be allowed.
In the above circumstances, the writ petition succeeds; the impugned order is set at naught; petitioner’s subject application in IA No.3 is favoured and the vakalath of second respondent Shri M A Shrikanth stands determined; Court below to process the matter further, accordingly.
No costs.
Sd/- JUDGE Bsv