Sri K Gangadhar Gowda vs Sri Manjunatha Bhandary
2022 Latest Caselaw 10575 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 8TH DAY OF JULY, 2022

                              BEFORE

     THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

       WRIT PETITION NO. 54732 OF 2017(GM-CPC)

BETWEEN:

SRI K GANGADHAR GOWDA
S/O LATE AIYANNA GOWDA
AGED ABOUT 67 YEARS,
R/AT OPPOSITE TO GOVERNMENT HOSPITAL
BELTHANGADY, DAKSHINA KANNADA DISTRICT
KARNATAKA-574 214.
SENIOR CITIZEN BENEFIT NOT CLAIMED.
                                               ...PETITIONER
(BY SRI.GOUTHAM BHARDWAJ, ADVOCATE FOR
SRI.RAJENDRA S, ADVOCATE)

AND:

1. SRI MANJUNATHA BHANDARY
SON OF LATE VENKAPPA BHANDARY
AGED ABOUT 55 YEARS,
R/AT BHANDARI HOUSE,
GANDHINAGAR, SHIMOGA
KARNATAKA 577201.

2. SRI. B. SHANKAR ALVA
S/O LATE NARAYANA ALVA
AGED ABOUT 74 YEARS,
R/AT "SAI KRIPA", IRA POST,
BANTWAL TALUK, D.K
KARNATAKA-574 323.
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3. SRI.THANGARAJA A
S/O ARUNACHALAM WADIYAR
AGED ABOUT 55 YEARS

4. SMT. SUNDARAVALLI
W/O THANGARAJA.A
AGED ABOUT 47 YEARS

R3 AND 4 ARE R/AT NO.23,
2ND CROSS, MANJUNATHANAGAR,
MAGADI ROAD, BANGALORE-560 023.

5. THE BANGALORE DEVELOPMENT AUTHORITY
KUMARA PARK (WEST) SANKEY ROAD,
BANGALORE-560 020
REPRESENTED BY ITS COMMISSIONER

6. SMT. RATHNAMMA
W/O SRI. T. SUNKA REDY
AGED ABOUT 53 YEARS
R/AT NO.L-87, SECTOR-VI,
HSR LAYOUT, BENGALURU 560 102.

                                               ...RESPONDENTS

(BY SRI.HARISH H V, ADVOCATE FOR R6;
V/O DATED 07.12.2017 NOTICE TO R1-5 ARE D/W)

     THIS PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED
14.11.2017 PASSED BY THE XL ADDL. CITY CIVIL AND SESSIONS
JUDGE, BENGALURU IN O.S.2992/2005 AT ANNEX-R ON I.A.1/17
AT ANNEX-N AND I.A.2/17 AT ANNEX-P AND ETC.,

      THIS PETITION COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
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                             ORDER

The captioned writ petition is filed by the plaintiff feeling

aggrieved by the order passed by the learned Judge on

I.A.No.3/2013 filed under Order 3 Rule 2 read with Section

151 of CPC and also order passed on I.A.Nos.1 and 2 of 2017

which was filed to recall the order passed on I.A.No.3/2013.

2. The petitioner/plaintiff has instituted a suit in

O.S.No.2992/2005 seeking relief of declaration to declare the

sale deed dated 04.12.2002 as null and void and not binding

on plaintiff and also subsequent sale deeds and for relief of

mandatory injunction directing the BDA to execute registered

sale deed in favour of plaintiff. The petitioner/plaintiff has let

in ocular evidence and has produced documentary evidence.

3. The defendant No.6 filed an application in

I.A.No.3/2013 requesting the Court to permit her to tender

evidence by authorizing an agent on her behalf. The said

application came to be allowed by order dated 31.07.2014.

The present petitioner/plaintiff has filed the present

applications to recall the order passed on I.A.No.3/2013. The

contention of the petitioner/plaintiff before this Court is that

the present GPA holder is not at all competent to tender

evidence on behalf of defendant No.6. The plaintiff's main

ground of objection is only when the matter was posted for

defendants' evidence, for the first time, on the ground of ill

health, present respondent No.6/defendant No.6 has

appointed her brother-in-law who is also an Advocate as her

agent and authorised him to lead evidence. The petitioner's

contention is that the GPA holder at best can only give formal

evidence of existing document i.e., sale deed dated

06.03.2006 but cannot tender ocular evidence in respect of

facts over which he has no personal knowledge. Therefore,

the petitioner contended that GPA holder is thoroughly

incompetent to tender ocular evidence on behalf of defendant

No.6. The learned Judge has rejected the applications which

is under challenge.

4. Learned counsel for the petitioner reiterating the

grounds urged in the writ petition has placed reliance on the

judgment rendered by the Hon'ble Apex Court in the case of

Janki Vashdeo Bhojwani and Another vs. Indusind Bank

Ltd. and Others1. Relying on para 16 and 18, learned

counsel would contend that the GPA holder as a witness can

appear only as a witness in his personal capacity but he

cannot appear as a witness on behalf of a party in the capacity

of that party. Placing reliance on the dictum laid down by the

Hon'ble Apex Court, he would contend that the impugned

order under challenge is not at all sustainable.

5. Per contra, learned counsel for the respondent

No.6/defendant No.6 would, however, counter the arguments

canvassed by the learned counsel for the petitioner/plaintiff.

Learned counsel appearing for the respondent No.6 would

contend that the GPA holder is in fact a witness to the sale

deed which is under challenge. He would further bring to the

(2005) 2 SCC 217

notice of this Court that the GPA holder has already tendered

his evidence by way of examination-in-chief and is

substantially cross-examined by the present

petitioner/plaintiff.

6. Referring to these significant details, he would

place reliance on the judgment rendered by the

Coordinate Bench of this Court in the case of Smt.

Aluvelamma vs. Venkatarama Reddy2. Referring to the

said judgment, he would contend that where GPA holder is

competent to tender evidence on behalf of principal agent is a

matter to be tested and examined only after recording

evidence. Therefore, placing reliance on the said judgment,

he would contend that the order under challenge is in

accordance with law and does not warrant any interference at

the hands of this Court.

7. Heard learned counsel for the petitioner and

learned counsel for the respondent No.6. I have given my

anxious consideration to the order under challenge. I have

W.P.No.5788 of 2017 Dtd: 12.06.2017

also examined the dictum laid down by the Hon'ble Apex Court

in the judgment cited supra. I have also given my anxious

consideration to the principles laid down by the Coordinate

Bench in an unreported judgment.

8. This Court is of the view that the judgment cited by

the learned counsel for the petitioner has no application to the

present facts and circumstances of the case. In the judgment

cited by the learned counsel for the petitioner, it was a case

where the ocular evidence of GPA holder was tested by the

Appellate Court. Therefore, the principles laid down by the

Apex Court in the judgment cited supra is not at all applicable

to the present case on hand. However, the principles laid

down by the Coordinate Bench are squarely applicable to the

present case on hand.

9. As rightly pointed out by the learned counsel for

the respondent No.6/defendant No.6, the real test as to

whether the evidence so tendered by the agent on behalf of

principal is to be accepted or not would be an issue which

requires to be examined only after such evidence comes on

record. Unless an agent tenders ocular evidence, his

competency or otherwise cannot be tested. Mere

apprehension on behalf of plaintiff cannot be a ground to deny

the defendant No.6 to lead evidence through an agent. Such

recourse is not permissible. The plaintiff by invoking the

provisions of Order 3 Rule 1 of CPC cannot injunct the

defendant from leading evidence in the manner he or she

choses to. Ultimately it is only after recording evidence, the

agents' credibility and competency can be tested and

examined. Therefore, this Court is of the view that it is too

premature at this juncture to accept the contentions

canvassed by the learned counsel for the petitioner. No error

is made out in the order under challenge.

10. Accordingly, the writ petition is dismissed.

Sd/-

JUDGE CA