Karnataka High Court
D. V. Jyothi vs E. Bhimawwa on 22 December, 2021
Bench: B.M.Shyam Prasad
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22ND DAY OF DECEMBER 2021
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
WRIT PETITION NO.138775/2020 (GM CPC)
BETWEEN:
1. D. V. JYOTHI, D/O. D. VENKANAGOWDA,
AGED ABOUT 36 YEARS, OCC: ADVOCATE,
REPRESENTED BY THEIR
G.P.A. HOLDER AND FATHER
SRI. D. VENKANAGOUDA,
R/O. WARD NO.1, JOISARA KERI,
HOSAPET ROAD-583131.
2. D. V. MAHESHWARI
D/O. D. VENKANAGOWDA,
AGED ABOUT 33 YEARS, OCC: DOCTOR,
REPRESENTED BY THEIR G.P.A. HOLDER AND FATHER
SRI. D. VENKANAGOUDA, 76 YEARS,
R/O. WARD NO.1, JOISARA KERI,
HOSAPET ROAD-583131.
...PETITIONERS
(BY SRI D.VENKANAGOUDA, PARTY-IN-PERSON)
AND :
E. BHIMAWWA W/O. SAMBAYYA,
AGED ABOUT 60 YEARS,
OCC: HOUSEHOLD WORK,
R/O. ANJANEYA EXTENSION,
HOSAPETE ROAD, OPP. WEEKLY MARKET,
HARAPANAHALLI-583131
...RESPONDENT
(NOTICE TO RESPONDENT-HELD SUFFICIENT)
:2:
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
IMPUGNED ORDER DATED 02.11.2019 AT ANNEXURE-A PASSED BY
LEARNED JUDGE OF THE HON'BLE COURT OF CIVIL JUDGE AND
JMFC, HARAPANAHALLI, ON I.A.NO.1 IN (MISC.NO.5/16) BASED ON
THE ANNEXURES-C, D, E, F, G, H, J, J1, J4 & L AND ALLOW THIS
WRITE PETITION BASED ON THE SOME CITATIONS QUOTED AT
PARA 13 OF THE ANNEXURE-C OF THIS WRIT PETITION AND
SECTIONS 5, 60 & 120 OF THE INDIAN EVIDENCE ACT 1872
SUPPORTING DUE COURSE OF JUSTICE AND TO AVOID ABUSE OF
PROCESS OF COURT, AND TO CONDUCT THE LEGAL PROCEEDINGS
IN ACCORDANCE WITH LAW.
THIS PETITION COMING ON FOR PRELIMINARY HEARING B
GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
A suit filed by the petitioner was decreed exparte on
05.07.2001. In order to set aside the exparte decree, a petition was
filed by the respondent in Miscellaneous No.5/2016. In the said
proceedings an application was filed on her behalf by her GPA
holder, who happened to be her son, seeking permission to give
evidence and to prosecute the proceedings.
2. The said application has been granted by the Trial Court by
the impugned order and the son of the respondent has been
permitted to adduce evidence on behalf of his mother.
3. This order is challenged by the petitioners on the ground
that the respondent herself had to be personally present and it was
impermissible for her to lead evidence through her son.
4. It is to be stated here that the cause given in the affidavit
supporting the application is that the respondent was aged about 68
years and as a result of her age she was suffering from several
ailments like asthama, low BP and her memory power was also low
and would therefore not been in a position to give evidence.
5. In my view, the reasons set forth in the petition constitutes
sufficient cause to enable the respondent's son to adduce evidence
on behalf of the respondent. There is no infirmity in the order
passed by the trial Court.
6. Sri D.Venkanagouda, party-in-person however sought to
place reliance on the following judgments :
a. H.S.Indiresh v. N.Ravi, (2004) 3 Kant LJ455.
b. Sajida Banu vs. Halema Banu and others,
ILR 2015 KAR 635.
c. Smt. Sowbhagyamma and another v.
M.D.Siddalingappa and others, 2015(5) KCCR 452.
d. Smt. A.C.Nagaveri and others v. Smt. Akkamma
and others, 2017(5) KCCR 120.
7. There can be no quarrel with the propositions laid down in
that cases. However, it is to be stated that Order-II Rule-2 of CPC
permits a party to prosecute the proceedings on his behalf through
a recognized agent and one of the recognized agents is a person
holding a GPA authorizing him enter appearance and act on behalf
of the party.
8. In my view, since the GPA in question empowers the
respondent's son to act on her behalf the order of the trial court
cannot be said to be in any way is illegal. Writ petition is therefore
dismissed.
Sd/-
JUDGE
CKK
