IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 21ST DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 49768 OF 2018 (GM-CPC) BETWEEN:
SRI. M G SURESH, S/O L P GOPALA SETTY, AGED ABOUT 40 YEARS, R/AT BABURAO STREET, MALUR TOWN AND TALUK, KOLAR DISTRICT – 563 101.
(BY SRI. KALYAN R, ADVOCATE) AND:
1. SRI. NARAYANASWAMY, S/O LATE VENKATASHAMY @ VENKATASHAMAPPA, AGED ABOUT 59 YEARS, R/AT HIREPALYA VILLAGE, KAIWARA HOBLI, CHINTAMANI TALUK, CHIKKABALLAPURA DISTRICT.
2. SMT. RATHNAMMA, W/O KRISHNAPPA, AGED ABOUT 50 YEARS, R/AT HIREPALYA VILLAGE, KAIWARA HOBLI, CHINTAMANI TALUK, CHIKKABALLAPURA DISTRICT.
... PETITIONER ... RESPONDENTS (BY SRI. S R SRINIVASA MURTHY, ADVOCATE FOR R2; NOTICE TO R1 IS DISPENSED WITH VIDE ORDER DATED 16.07.2019) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH IMPUGNED ORDER DATED 25.09.2018 ON IA NO.8 FILED UNDER ORDER III RULE 2 OF CPC IN O.S.NO.341/2012 PASSED BY THE PRINCIPAL CIVIL JUDGE AND CJM AT CHINTAMANI AS PER ANNEXURE-A TO THE W.P. AND CONSEQUENTLY TO DISMISS THE APPLICATION IA NO.8 FILED BY THE R-2 UNDER ORDER IIII RULE 2 OF CPC.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioner being the plaintiff in a specific performance suit in O.S.No.341/2012 is invoking the writ jurisdiction of this Court for assailing the order dated 25.09.2018, a copy whereof is at Annexure-A, whereby the learned Principal Civil Judge, Chintamani having favoured 2nd respondent- Smt.Rathnamma’s application in I.A.No.8 filed under Order III Rule 2 of CPC, 1908 has granted permission to her son Sri Suresh, who is her Special Power of Attorney Holder as well to depose on her behalf. After service of notice, the 2nd respondent having entered appearance through her counsel resists the writ petition, notice to 1st respondent having been dispensed with.
2. Having heard the learned counsel for the parties and having perused the petition papers, this Court grants indulgence in the matter because:
(a) by the impugned order the learned trial Judge in exercise of his discretion and wisdom has permitted the 2nd respondent-defendant to have her son who happens to be her the Power of Attorney Holder to depose on her behalf since she has been suffering from cervical cancer; ordinarily a litigant has to substantiate his stand by entering witness box, is true; but some exceptions are recognized thereto and that the case of the 2nd respondent falls into one such;
(b) the order granting permission in terms of Order III Rule 2 is apparently a product of discretion exercised by the learned trial Judge; how the petitioner would be prejudiced if the Power of Attorney Holder of 2nd respondent-defendant deposes in the suit is not substantiated regardless of regularity of the order; it is a settled legal position that a legal lacuna per se is not sufficient for invoking the writ jurisdiction, sans prejudice;
(c) the impugned order as already mentioned above being a product of discretion, the writ Court cannot undertake a deeper examination thereof vide decision of the Apex Court in TRIMBAK GANGADHAR TELANG vs. RAMACHANDRA GANESH BHIDE, AIR 1977 SC 1222.
In the above circumstances, the writ petition being devoid of merits is dismissed.
No costs.
Snb/ Sd/- JUDGE