Karnataka High Court
Y Ramachandra S/O Late Y Timmappa vs Y Thippeswamy S/O Late Y Thimmappa on 19 November, 2024
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NC: 2024:KHC-D:16852
WP No. 105207 of 2024
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 19TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE C.M. POONACHA
WRIT PETITION NO.105207 OF 2024 (GM-CPC)
BETWEEN:
1. Y. RAMACHANDRA S/O. LATE Y. TIMMAPPA,
AGE: 53 YEARS, OCC: AGRICULTURIST.
2. Y. SURESH S/O. LATE Y. TIMMAPPA,
AGE: 48 YEARS, OCC: AGRICULTURE,
BOTH ARE R/O: 5TH WARD,
OPP. KOTTALA VENKATESHWARA HOUSE,
KAKARALATHOTA, BALLARI - 583 101.
...PETITIONERS
(BY SRI NARAYAN V. YAJI, ADVOCATE FOR
SMT. SMITA B.H., ADVOCATES)
AND:
1. Y. THIPPESWAMY S/O. LATE Y. THIMMAPPA
AGE: 58 YEARS, OCC: AGRICULTURIST.
Digitally signed
2. PARVATHI W/O. THIMMAPPA D/O. LATE Y THIMMAPPA,
by SAROJA
HANGARAKI
AGE: 60 YEARS, OCC: HOUSEHOLD WORK,
Location: High
Court of
Karnataka 3. ALAVELAMMA W/O. ERAPPA
D/O. LATE Y THIPPAMMA,
AGE: 47 YEARS, OCC: HOUSEHOLD WORK,
ALL ARE R/O: KAKARALATHOTA, BALLARI.
...RESPONDENTS
(BY SRI PRAVEEN G. KULKARNI AND
SRI SHRIDHAR DODDAMANI, ADVOCATE FOR R1;
SERVICE OF NOTICE IN RESPECT OF R2 AND R3 ARE
DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO, ISSUE A WRIT OF
CERTIORARI TO QUASH THE IMPUGNED ORDER PASSED BY THE
PRL.CIVIL JUDGE AND JMFC, BALLARI DATED 05.08.2024 PASSED IN
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NC: 2024:KHC-D:16852
WP No. 105207 of 2024
O.S. NO. 278/2016 ON I.A. NO. 18 VIDE ANNEXURE-H TO THE WRIT
PETITION AS IT IS ILEEGAL AND UNCONSTITUTIONAL.
CONSEQUENTLY ALSO ISSUE A WRIT IN THE NATURE OF
CERTIORARI TO QUASH THE I.A. NO. 18 FILED ON 25.07.2023 U/O.
3 RULE 2(A) R/W SEC. 151 OF CPC IN O.S. NO. 278/2016 PENDING
ON THE FILE OF THE PRL. CIVIL JUDGE AND JMFC, BALLARI VIDE
ANNEXURE-F TO THE WRIT PETITION AS IT IS ILLEGAL AND ETC.,
THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING - B GROUP, THIS DAY, ORDER WAS MADE THEREIN AS
UNDER:
CORAM: THE HON'BLE MR. JUSTICE C.M. POONACHA
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA)
The present writ petition is filed calling in question
the order dated 05.08.2024 passed on I.A No.18 under
Order III Rule 2(a) R/w Section 151 of the Code of Civil
Procedure, 19081, in O.S No.278/2016 by the Court of
Principal Civil Judge and JMFC, Ballari2.
2. The relevant facts leading to the present writ
petition are that the respondent No.1/plaintiff instituted a
suit in O.S No.278/2016 for partition and other reliefs. The
petitioners herein were arrayed as defendant Nos.2 and 3
Hereinafter referred to as the 'CPC'
Hereinafter referred to as the 'Trial Court'
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in the suit. The said suit was contested by the defendants
by filing written statement. The respondent No.1/plaintiff
was examined as PW.1 and was also partly cross-
examined. Thereafter, I.A No.18 was filed under Order III
Rule 2(a) R/w Section 151 of the CPC to permit the GPA
holder of the plaintiff to prosecute the suit on behalf of the
plaintiff. The said application was objected to by the
defendants. The Trial Court, by its order dated
05.08.2024, allowed the application. Being aggrieved, the
present writ petition is filed.
3. Heard submissions of learned counsel
Sri.Narayan.V.Yaji for the petitioners and learned counsel
Sri.Praveen.G.Kulkarni for respondent No.1.
4. It is the vehement contention of the learned
counsel for the petitioners that the plaintiff has been partly
cross examined and various admissions have been made
in the cross examination of PW.1 and hence, the Trial
Court ought not to have permitted the GPA holder to
prosecute the suit on behalf of the plaintiff by allowing I.A
No.18. It is further contended that consequent to allowing
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I.A No.18, I.A No.19 has been filed to discard the evidence
of PW.1. It is also contended that further cross
examination of PW.1 could have been done by appointing
a Commissioner and I.A No.18 ought not to have been
allowed. Hence, learned counsel seeks for allowing of the
writ petition and granting of the reliefs sought for.
5. Per contra, learned counsel for respondent No.1
justifies the order passed by the Trial Court and contends
that the plaintiff having suffered paralysis stroke on
06.06.2023 not having been disputed, the Trial Court was
justified in allowing I.A No.18. Hence, he seeks for
dismissal of the writ petition.
6. The submissions of both the learned counsels
have been considered and material on record has been
perused.
7. The necessary fact situation with regard to the
filing of the suit, the plaintiff having been examined as
PW.1 and the plaintiff having been partly cross examined
is undisputed.
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8. It is forthcoming from the affidavit filed in
support of I.A No.18 that the GPA holder has deposed that
on 06.06.2023 the plaintiff, who is the husband of GPA
holder was present in Court and was partly cross
examined. On that day, in the evening, the plaintiff
suffered a paralysis stroke on his left leg and was
hospitalized and treated as an inpatient from 06.06.2023
to 12.06.2023 and thereafter, treated as inpatient in
another hospital from 12.06.2023 to 16.06.2023. It is
further deposed that the plaintiff is not able to walk and
talk properly and his movements are restricted and his
behavior is abnormal and hence, it is deposed that the
plaintiff being disabled, he is unable to attend the Court. It
is further deposed that the plaintiff is not in a position to
move and he is suffering from ill-health. It is further
forthcoming that the medical records have been produced
as Annexure-K and L to the writ petition which discloses
that the petitioner has suffered from paralysis stroke.
9. The Trial Court while considering I.A No.18 has
noticed that the plaintiff having suffered from paralysis
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stroke, has executed power of attorney in favour of his
wife and hence, there being no embargo under law to
permit the plaintiff to appear as GPA holder has allowed
the said application.
10. Although it is the vehement contention of the
learned counsel for the petitioner that the GPA holder is
not competent to give evidence on behalf of the plaintiff
and various aspects which are peculiar to the knowledge of
the plaintiff are required to be adjudicated in the suit,
having regard to the undisputed position that the plaintiff
has suffered a paralysis stroke and having regard to the
consequential effects of such paralysis stroke as has been
deposed in the affidavit filed in support of I.A No.18, which
is corroborated by the medical records produced, the Trial
Court is justified in allowing I.A No.18. Hence, no ground
is made out to interfere with the order passed by the Trial
Court.
11. However, it shall be open to the petitioners to
take all contentions with regard to the personal knowledge
of the GPA holder of the plaintiff and the same shall be
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considered by the Trial Court while adjudicating the suit on
its merits in accordance with law.
12. With the above observations, the writ petition is
disposed off.
13. All contentions of the parties are left open.
Sd/-
(C.M. POONACHA)
JUDGE
PMP/CT-ASC
