Sri. Anthony Raj vs Smt. Mehrunnissa
2024 Latest Caselaw 6776 Kant

Karnataka High Court

Sri. Anthony Raj vs Smt. Mehrunnissa on 7 March, 2024

Author: S.R.Krishna Kumar

Bench: S.R.Krishna Kumar

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                                                                  NC: 2024:KHC:9546
                                                               WP No. 6820 of 2024




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                                 DATED THIS THE 7TH DAY OF MARCH, 2024

                                                  BEFORE
                              THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
                                 WRIT PETITION NO. 6820 OF 2024 (GM-CPC)
                      BETWEEN:

                      1.     SRI. ANTHONY RAJ
                             S/O LATE JOSEPH,
                             AGED ABOUT 50 YEARS,
                             R/AT NO. 165/17,
                             DORESANIPALYA, B.G ROAD,
                             BENGALURU - 560 076.

                      2.     SMT. MARY SHYLAJA
                             W/O SRI. ANTHONY RAJ,
                             AGED ABOUT 46 YEARS,
                             R/AT NO. 165/17,
                             DORESANIPALYA, B.G ROAD,
                             BENGALURU - 560 076.
                                                                    ...PETITIONERS
                      (BY SRI. SHIVARAMU H C.,ADVOCATE)

                      AND:

                             SMT. MEHRUNNISSA
                             W/O MR. HAFEEZ,
                             AGED ABOUT 64 YEARS,
Digitally signed by
LAKSHMINARAYANA              R/AT NO.22, 1ST FLOOR,
MURTHY RAJASHRI
Location: HIGH
                             COCKBURN ROAD,
COURT OF
KARNATAKA
                             NEAR BAMBOO BAZAAR,
                             FRAZER TOWN, SHIVAJINAGAR
                             BENGALURU 560 051.
                                                                    ...RESPONDENT

                            THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF
                      THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS FROM
                      THE 9TH ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE (CCH 5)
                      IN OS NO. 5903/2021. b) TO SET ASIDE THE ORDERS PASSED ON MEMO
                      DT. 05/02/2024 AND TO REJECT THE SAID MEMO. c) TO ALLOW THIS
                      PETITION. GRANT AN INTERIM ORDER TO STAY THE FURTHER
                      PROCEEDINGS OF THE SUIT BEARING OS NO. 5903/2021 PENDING
                      BEFORE THE IX ADDL. HONBLE CITY CIVIL AND SESSIONS JUDGE (CCH-
                      5) BENGALURU TILL THE DISPOSAL OF THE ABOVE WP.
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                                                NC: 2024:KHC:9546
                                             WP No. 6820 of 2024




    THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:

                              ORDER

1. This petition by the defendants in O.S.No.5903/2021 is

directed against the impugned order dated 05.02.2024 passed on

the memo filed by the respondent - plaintiff along with the General

Power of Attorney dated 21.12.2023, whereby the Trial Court

permitted the husband of the respondent - plaintiff, to conduct the

case on her behalf and adduce the evidence.

2. Heard learned counsel for the petitioners and learned

counsel for the respondent.

3. A perusal of the material on record would indicate that the

respondent - plaintiff instituted the aforesaid suit against the

petitioners - defendants for permanent injunction and other reliefs

in relation to the suit schedule immovable property. The said suit is

being contested by the petitioners - defendants. Prior to

commencement of the evidence, the respondent - plaintiff filed a

memo interalia contending that she was not in a position to appear

physically / personally before the Trial Court and had authorized

her husband / Power of Attorney Holder to adduce evidence and to

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conduct the suit on her behalf. The petitioners opposed the said

request interalia contending that the Power of Attorney does not

specifically authorize or empower the husband of the respondent to

appear on her behalf and to give evidence and consequently, it is

not permissible for the husband of the respondent to do so. After

hearing the parties, the Trial Court proceeded to pass the

impugned order, allowing the memo filed by the respondent -

plaintiff, aggrieved by which, the petitioners are before this Court

by way of the present petition.

4. The impugned order of the Trial Court is as under;

"The memo filed by the plaintiff by producing the original General Power of Attorney dated 21.12.2023.

The defendants filed objections to the above memo filed by the plaintiff contending that, the plaintiff filed the memo in order to produce the original General Power of Attorney dated 21.12.2023 executed by the plaintiff in favour of her husband Hafeez Sheriff in order to file application and produce all the document, to appear before all the authorities, to submit application complaint, pleadings, petition, etc., before the concerned authorities including the police station, Commissioner and other authorities. To file all appeal; to produce original documents; to enter into compromise entitle matter and sign and submit all papers etc., in respect of O.S.No.5903/2021, pending before the

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City Civil Judge. In the said power of attorney no power has been conferred to adduce evidence and tender for cross-examination on behalf of the plaintiff. Hence, the husband of the plaintiff as well as the attorney holder is not competent to adduce evidence on behalf of the plaintiff. The defendants have contended that, the plaintiff is not the absolute owner and she cannot be identified as the Mehrunnisa wife of Hafeez as the husband name differs. In the plaint the plaintiff mentioned her husband name as Hazeez whereas in the power of attorney she mentioned her husband as Sheriff which also differ. In para No.18 of the written statement it is contended by the defendant that, Mehrunnisa wife of Hafeez is not the plaintiff as the husband of Mehrunnisa in sale deed dated 16.05.1988 is Hazeez not Hafeez and Mehrunnisa who purchased the property is different from the plaintiff Mehrunnisa in the suit. In order to prove the said fact, the plaintiff herself shall enter into the witness box and to deposit her presence is required for documentation to prove the identity of the plaintiff with that, of Mehrunnisa in the sale deed dated 16.05.1988. The General Power of Attorney filed by plaintiff to be discarded. Hence memo may be rejected.

Heard the arguments on both the side.

The plaintiff filed memo along with original power of attorney and submitted that, plaintiff who appointed her husband as her lawful attorney to prosecute the suit on behalf of her.

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The defendant submitted that name of the husband is reflected in the plaint is different and in the General Power of Attorney is different.

The plaintiff counsel submitted that, the plaintiff has given General Power of Attorney to her husband and she has every right to appoint anybody as her attorney and if the defendant has any dispute with regard to this he can cross- examine the witness about the veracity of this contentions and he can disprove the relationship, but he cannot curtail the right of the plaintiff to appoint his attorney.

Perused the documents and plaint. It is reflected in the plaint of Ms.Mehrunnisa wife of Hafeez and General Power of Attorney as Smt.Meharunnisa wife of Hafeez Shariff and this fact is disputed by the defendant. This can be cross- examined by the defendant at the time of cross-examining the witness. The plaintiff can appoint anybody as her lawful attorney and she need not file any application to that effect.

1 rely upon a citation that was rendered in ILR 2015 Kar 635 (Sajida Banu - Vs Halema Banu and others) wherein it has been held that,

"CODE OF CIVIL PROCEDURE, 1908 ORDER 3 SUB-RULE (2) Appearance by recognized agent or by pleader A party could prosecute or defend the legal proceedings through a Power of Attorney holder or even a pleader -

HELD,

a) It is not obligatory on the part of the party to a litigation to appear in person, unless the law so

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requires. The party could prosecute or defend a legal proceedings through a power of attorney holder or even a pleader. Therefore, when the statute confers such a power on a party, it has to be honoured. The question of Court granting permission to a party to prosecute the matter through a power of attorney holder or a pleader would not arise. However, the Court cannot prevent a party from prosecuting the litigation or defending it through a power of attorney holder or a pleader.

Only in some exceptional cases, such as the case arising under the Family Courts Act, where an Advocate cannot appear only on the permission granted by the Court, the party has a right to be represented by a power of attorney holder or a pleader.

b) A party should be permitted to be represented by a Power of Attorney Holder or a counsel as a matter of right. But a party should not, as a mater of right drag prosecution of the matter through a power of attorney holder. Once a power of attorney holder enters the witness box and gives evidence, whether that evidence has to be acted upon, whether it is a direct evidence or hearsay evidence, is to be decided by the trial court at the time of appreciation of the evidence,. On the ground that the power of attorney holder has no personal knowledge of the case, he cannot be prevented

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from entering the witness box and from deposing . further held Provisions of Order 3 enables a party to appear, file application or act in a Court personally without engaging a Counsel and all such acts can also be performed by a recognized agent if the party executes a power of attorney in favour of such agent; this can also be done by a pleader who is duly authorised. The only exception is, 'if under any law, the party has to appear in person then neither the pleader nor the power of attorney holder can appear'.

As per the ratio laid down in the above dictum is also applicable to this case. Any person can appoint anybody as their lawful attorney and he can be cross-examined by the other party about the knowledge pertaining to the case and documents.

The plaintiff counsel relied upon ILR 2023 Kar 3379 in (Shashikala and others - Vs - Laxman Yadu Kadam @ Dhor, since deceased by LRs and others) wherein it has been held that,

"INDIAN EVIDENCE ACT, 1872 - SECTION 120 Parties to civil suit, and their wives or husbands, husband or wife of person under Criminal trial - Even in the absence of power Attorney, a spouse is a competent witness - Dismissal of suit on the ground that plaintiffs did not step into witness box and in his place his wife examined based on power

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of attorney executed by her husband. First appeal against - Decretal of suit by the First Appellate Court Regular Second Appeal by the defendant -

HELD,

a) On careful reading of the provision of Section 120 of the Indian Evidence Act, 1872 it is crystal clear that a spouse is a competent witness even in the absence of any written authority or power of attorney."

In this case, the plaintiff produced General Power of Attorney by appointing her husband as her attorney.

ORDER

The memo filed by the plaintiff is hereby allowed."

5. A perusal of the material on record would indicate that the

Trial Court has taken into account the judgment of this Court in the

case of Sajida Banu Vs Halema Banu, ILR 2015 Kar 635 and the

provisions contained in Section 120 of the Evidence Act, 1872

in order to come to the conclusion that the respondent's husband

who is also Power of Attorney Holder would be a competent

witness to adduce evidence on her behalf. The Trial Court has

also noted that the petitioners would be entitled to cross examine

the said witness and the evidentiary value of the evidence to be

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adduced by the respondent's husband / Power of Attorney Holder

would have to be decided at the time of the final disposal of the

suit.

6. Under these circumstance, keeping open all the contentions

regarding non appearance of the respondent personally as well as

the evidentiary value of the evidence to be adduced by the

respondent's husband to be decided by the Trial Court, I deem it

just and proper to dispose off this petition without interfering with

the impugned order.

7. In the result, following;

ORDER

(i) The petition is hereby disposed off without interfering with the impugned order.

(ii) Liberty is reserved in favour of the petitioners to cross examine the respondent's husband on all aspects of the matter, including his evidentiary value and competency to give evidence.

Sd/-

JUDGE

GH