IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF DECEMBER, 2017 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR WRIT PETITION NO.38632/2017 (GM-CPC) BETWEEN:
1. SRI. VENKATASWAMAPPA AGED ABOUT 74 YEARS, 2. SRI.MUNEGOWDA AGED ABOUT 69 YEARS, 3. SRI. NARAYANAPPA AGED ABOUT 64 YEARS, 4. SRI. RAMACHANDRAPPA AGED ABOUT 59 YEARS, ALL ARE SONS OF LATE SRI.MUNIVENKATAPPA PETITIONERS 1 TO 4 ARE R/AT SATHNUR VILLAGE, BAGALUR POST, JALA HOBLI, BANGALORE NORTH ADDL. TALUK – 562 149 (BY SRI. B.M.LOKESH, ADVOCATE) AND:
1. SMT. VENKATAMMA W/O. PILLAVENKATAPPA AGED ABOUT 59 YEARS, R/AT SATHNUR VILLAGE, BAGALUR POST, JALA HOBLI, BANGALORE NORTH TALUK-562 149 2. SMT. MANJULA @ SUMANGALA D/O. RAMACHANDRAPPA W/O. SHIVANNA, ...PETITIONERS AGED ABOUT 37 YEARS, SANKEIGATTA VILLAGE AND POST CHIKKASANDRA HOBLI, MAGADI TALUK – 562 120 3. SMT. NANJAMMA D/O. RAMACHANDRAPPA W/O. SHANKER S/O. SHAMMANNA, AGED ABOUT 29 YEARS, MARASARAKOTTIGE VILLAGE, KODDIGAHALLI POST, TUMKUR DIST – 572 107 4. SRI. RAVI KUMAR R.S. AGED ABOUT 27 YEARS, S/O. RAMACHANDRAPPA, 5. SMT. LAKSHMAMMA AGED ABOUT 67 YEARS, W/O. SUBBEGOWDA @ SUBBANNA, 6. SRI.VENKATESH AGED ABOUT 52 YEARS, S/O. SUBBEGOWDA @ SUBBANNA, 7. SRI.MUNIRAJU AGED ABOUT 51 YEARS, S/O. SUBBEGOWDA @ SUBBANNA, 8. SRI.MANJUNATH AGED ABOUT 50 YEARS, S/O.SUBBEGOWDA @ SUBBANNA, 9. SRI.KRISHNA AGED ABOUT 43 YEARS, S/O. SUBBEGOWDA @ SUBBANNA, 10. SRI.UMESH AGED ABOUT 37 YEARS, S/O. SUBBEGOWDA @ SUBBANNA, RESPONDENTS NOS.4 TO 10 ARE R/AT SATHNUR VILLAGE, BAGALUR POST, JALA HOBLI, BENGALURU NORTH TALUK – 562 149 11. SMT. MANJULA AGED ABOUT 41 YEARS, D/O SUBBEGOWDA @ SUBBANNA, W/O. BYREGOWDA, KATERI SONNAHALLI VILLAGE, ARALERI POST, MALUR TALUK, KOLAR DISTRICT – 563 130 ...RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DTD.3.6.2017 PASSED ON IA NO.22 IN O.S.NO.426/2008 BY THE SENIOR CIVIL JUDE AND JMFC AT DEVANAHALLI, PRODUCED AT ANNEXURE-A.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard Sri. Venkatesh, learned counsel appearing on behalf of Sri.B.M.Lokesh for petitioners. Perused the case papers.
2. Petitioners 1 to 4 herein have filed the suit O.S.No.426/2008 for cancellation of registered Will dated 28.04.1998 executed by late Sri.Munivenkatappa in favour of defendants 1 to 4 bequeathing suit schedule properties and for grant of perpetual injunction.
3. On service of suit summons, defendants have appeared and contested the matter. When the matter was at the stage of recording plaintiffs’ evidence, first defendant had filed an application under Order III Rule 2 of CPC to permit her to be represented by her power of attorney – Sri.P.Srinivas namely, her son. It is stated by the power of attorney holder that his mother – first defendant is suffering from chronic health problems and as such she is unable to appear before the Court personally. Trial Court by order dated 03.06.2017 has allowed I.A.No.22 filed by first defendant, which is impugned in the present writ petition.
4. It is the contention of Sri.Venkatesh, learned counsel appearing for petitioners that order of trial Court does not disclose any reasons and it has failed to consider the objections filed by first defendant.
5. Having heard the learned counsel appearing for petitioners and on perusal of case papers it would disclose that trial Court by impugned order has permitted the first defendant to be represented by her son as a special power of attorney holder. Rule (2) of Order III CPC enables a power of attorney holder to appear on behalf of the principal. The agent can necessarily speak about the facts which are within his personal knowledge insofar as acts of principal are concerned. To put it differently, if an agent not being conversant with the personal acts done by the principal, any amount of oral evidence tendered by such agent would be of no use.
6. As to whether evidence tendered by the agent on behalf of principal is to be considered or accepted, would arise only after such evidence is tendered or is brought on record. In that view of the matter, without expressing any opinion in that regard, this writ petition is dismissed subject to observations made hereinabove.
Ordered accordingly.
SD/- JUDGE DR