Karnataka High Court
Hameed K @ Fakeerabba vs Abdul Nasir @ Kunhanhalli Abdul Nasir on 9 September, 2024
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MFA No. 6153 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9THDAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
MISCELLANEOUS FIRST APPEAL NO. 6153 OF 2017 (CPC)
BETWEEN:
HAMEED K. @ FAKEERABBA
AHAMAD BAVA,
AGED ABOUT 52 YEARS,
PRESENTLY WORKING AT RIYADH,
SAUDI ARABIA,
REPRESENTED BY ITS GPA HOLDER
ABDUL KHADER,
AGED ABOUT 64 YEARS,
R/AT SUJEER MALLI,
FARNGIPETE, PUDU POST,
BANTWAL TALUK,
D.K.DISTRICT - 574 211.
...APPELLANT
(BY SRI. SHARATH P.H., ADVOCATE
FOR SRI. SACHIN B.S., ADVOCATE)
Digitally
signed by
SUVARNA T AND:
Location:
HIGH ABDUL NASIR @
COURT OF KUNHANHALLI ABDUL NASIR,
KARNATAKA
S/O. SOOPUNHI,
AGED ABOUT 48 YEARS,
R/AT HOSAMANE,
GOLITHOOTU VILLAGE AND POST,
PUTTUR TALUK AND D.K.DISTRICT
PIN-574 201.
...RESPONDENT
(BY SRI. S. RAJASHEKAR, ADVOCATE)
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MFA No. 6153 of 2017
THIS MFA IS FILED UNDER ORDER 43 RULE 1(d) OF CPC,
AGAINST THE ORDER DATED 28.06.2017 IN MISCELLANEOUS
CASE NO. 2/2015 ON THE FILE OF THE ADDITIONAL SENIOR
CIVIL JUDGE AND J.M.F.C., PUTTUR, D.K.,DISMISSING
PETITION FILED UNDER ORDER 9 RULE 13 AND SECTION 151
OF CPC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
ORAL JUDGMENT
Aggrieved by the order passed in Misc.Case.No.2/2015
dated 28.06.2017 by the Addl. Senior Civil Judge and JMFC,
Puttur, Dakshina Kannada, the defendant is before this Court.
2. The respondent herein had filed O.S.No.5/2024 seeking
recovery of an amount of Rs.16,50,000/-. The defendant who is
the appellant herein was placed exparte and exparte judgment
and decree was passed on 19.07.2014 whereby the Trial Court
had considered the matter on merits and held that the plaintiff
is entitled to recover from the defendant an amount of
Rs.16,50,000/- and interest thereon at the rate of 9% p.a.
from the date of filing of the suit till its realization. Then, an
application is filed by the defendant under Order 9 Rule 13
Read with Section 151 of CPC to set aside the said decree
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dated 19.07.2014. It is the case of the defendant that he has
not been served with any notice/summons in the suit. He is
working at Riyadh, Saudi Arabia, since 2013. The defendant or
his family members were not residing at that address shown in
the plaint. He was not aware of the paper publication made in
the suit or the date of hearing fixed for his appearance. As such
he could not appear before the Court on the date fixed for his
appearance and according to him, the address of the residence
of the defendant shown in the plaint is also wrong. Even the
family of the defendant was also not residing at the given
address at the relevant point of time. However, the defendant
was placed exparte and an exparte decree was passed on
19.07.2024. It came to his knowledge only recently during the
second week of February 2015 when his daughter/GPA holder
had gone to Bantwal Taluk office to obtain RTC. Immediately
thereafter, defendant had applied for certified copy of the
decree through his GPA holder and obtained the same on
27.02.2015 and the petition is filed within the period of 30 days
from the date of knowledge of the decree and he has got a
good case on merits, the said judgement and decree has to be
set aside.
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3. The respondent/plaintiff had filed his objections to this,
but the same is not placed before the Court. From the order, it
is found that they have filed the objections that there is no
bonafide on the part of the defendant and he has not come to
the Court with clean hands. The very filing of this miscellaneous
case through the GPA holder is not maintainable. The very date
of execution of GPA makes the case of the defendant doubtful.
It is stated that if the petition is allowed, it would cause lot of
prejudice to the plaintiff.
4. The Trial Court by order impugned had dismissed the
application filed by the defendant. While dismissing the
application, the Trial Court had observed that the defendant
was reported to be in abroad. Ex.P5 is the certified copy of the
decree, Ex.P6 is the paper publication, Ex.P7 to Ex.P17 are the
certified copies of other documents produced by the respondent
in the suit. Ex.P.18 is the copy of the passport of the defendant
which do not disclose when he went to Abroad and came back.
Original passport is not available on record. Translated copy is
also not produced on record. Based on Ex.P.18 passport copy,
it is not possible to come to definite conclusion, when the
defendant left India and when he returned back. The Trial Court
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also observed that the GPA holder has been subjected to cross
examination and during the course of cross examination, it is
revealed that the address furnished by the plaintiff in the suit,
the summons was issued to the Deralakatte address of the
defendant. PW1 further admitted that the property belongs to
the defendant which is situated at Ira Village, Kannyyanna.
Wife and children of the defendant are also residing at the
same place. Suit summons was also issued at the same place
and PW1 further deposed that the defendant is aware of the
suit in the year 2014, but he had not taken any steps to attend
the Court. Wife of the defendant took the defendant to the
office of the Advocate and PW1 specifically admitted that the
defendant as well as family members were aware about the suit
filed by the plaintiff. Considering all these and the judgments of
the Hon'ble Apex Court, the Trial Court observed that the
summons in the suit was issued to the defendant's family
reported that the defendant was in Abroad. The witness of the
defendant admits that the wife of defendant was aware about
the suit filed by the plaintiff and the Trial Court felt that there
are no grounds to set aside the judgment and decree passed.
The Trial Court had observed that the plaintiff had failed to
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make out the case and accordingly, dismissed the application.
Aggrieved thereby the defendant is before this Court.
5. Learned counsel for the appellant/defendant submits
that the GPA holder had stated certain things which are not in
his knowledge and which he ought not to have stated. He
submits that there are contradictions in the evidence of the
GPA holder which cannot be taken into consideration. He
submits that when the notice is issued earlier also, it is stated
that the defendant is not in India. According to the learned
counsel appearing for the appellant/defendant that the family
members are also not residing in the said place. When that is
the case, the defendant was not aware of the pendency of the
case. All these aspects were not considered by the Trial Court.
He submits that for giving a fair and reasonable opportunity to
the defendant, the Trial Court ought to have allowed the
miscellaneous application filed by him and ought to have given
an opportunity to him. It is submitted that the Trial Court had
dismissed the application more on technicalities and the same
is liable to be set aside. He has relied on the judgment of the
Hon'ble Apex Court in case of Manisha Mahendra Gala and Ors.
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Vs. Shalini Bhagwan Avatramani and others1, arising out of
Cvl.A.No.9642/2010. He had relied on para Nos.28 and 29
which reads thus,
28. The law as understood earlier was that a General
Power of Attorney holder though can appear,
plead and act on behalf of a party he represents
but he cannot become a witness on behalf of the
party represented by him as no one can delegate
his power to appear in the witness box to another
party. However, subsequently in Janki Vashdeo
Bhojwani vs. IndusInd Bank Ltd.3, this Court held
that the Power of Attorney holder can maintain a
plaint on behalf of the person he represents
provided he has personal knowledge of the
transaction in question. It was opined that the
Power of Attorney holder or the legal
representative should have knowledge about the
transaction in question so as to bring on record
the truth in relation to the grievance or the
offence. However, to resolve the controversy with
regard to the powers of the General Power of
Attorney holder to depose on behalf of the person
he represents, this Court upon consideration of all
previous relevant decisions on the aspect
including that of Janki Vashdeo Bhojwani (supra)
in A.C Narayan vs. State of Maharashtra4
concluded by upholding the principle of law laid
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down in Janki Vashdeo Bhojwani (supra) and
clarified that Power of Attorney holder can
depose and verify on oath before the Court but he
must have witnessed the transaction as an agent
and must have due knowledge about it. The
Power of Attorney holder who has no knowledge
regarding the transaction cannot be examined as
a witness. The functions of the General Power of
Attorney holder cannot be delegated to any other
person without there being a specific clause
permitting such delegation in the Power of
Attorney; meaning thereby ordinarily there
cannot be any sub-delegation.
29. It is, therefore, settled in law that Power of
Attorney holder can only depose about the facts
within his personal knowledge and not about
those facts which are not within his knowledge or
are within the personal knowledge of the person
who he represents or about the facts that may
have transpired much before he entered the
scene. The aforesaid Power of Attorney holder
PW-1 had clearly deposed that he is giving
evidence on behalf of plaintiff Nos. 2 to 4 i.e. the
Gala's. He was not having any authority to act as
the Power of Attorney of the Gala's at the time his
statement was recorded. He was granted Power
of Attorney subsequently as submitted and
accepted by the parties. Therefore, his evidence is
completely meaningless to establish that Gala's
have acquired or perfected any easementary right
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over the disputed rasta in 1994 when the suit was
instituted.
Relying on the above judgment, he submits that the power
of attorney holder can only depose about the facts within his
personal knowledge and not about those facts which are not
within his knowledge or within the personal knowledge of the
person whom he represents or about the facts that may have
transpired much before he entered the scene. Basing on this,
the learned counsel submits that the Trial Court ought not to
have taken into consideration, the evidence of PW1 and basing
on that the Trial Court ought not to have dismissed the
application filed by the defendant to set aside the exparte
judgment and decree.
6. Learned counsel Sri. Rajashekar has filed Vakalath on
behalf of the respondent, but his name is not reflected in the
cause list.
7. Having heard the learned counsel for the appellant,
perused the entire material on record. The suit is filed in the
year 2014. The suit is for recovery of an amount of
Rs.16,50,000/-. Notice is sent to the defendant as per the
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address furnished in the plaint and after that a paper
publication was made, thereafter the Trial Court had proceeded
with the matter and an exparte judgment and decree was
passed on 19.07.2015, thereafter in the year 2015 the
defendant had come up with an application to set aside the
exparte decree. Initially, his daughter had filed GPA and she
has failed to appear before the Court and has not subjected
herself for the cross examination. Thereafter, another GPA is
filed, nothing is forthcoming who is the second GPA holder.
Now, the GPA holder has stated two things, one is about the
fact that the property belongs to the defendant is situated at
Ira village. The wife and children of the defendant are also
residing in the said village and the suit summons were served
there. Then, in another paragraph he says that the defendant is
aware of the suit in the year 2014, but he had not taken any
steps to attend the Court. The wife of the defendant took PW1
to the office of the Advocate. He has admitted that the
defendant as well as the family members are aware about the
suit filed by the plaintiff in O.S.No.5/2014. The Trial Court
considering the said evidence of the defendant, further no
material is placed before the Court that defendant was not in
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India at the relevant point of time and the fact that no
sufficient cause has been shown by the defendant, had
dismissed the application. This Court had perused the
judgment. As far as the fact that whether the defendant's
family is staying there, it cannot be said that the said fact is not
in his knowledge when he is a resident of that village and when
he is aware of such facts and the respondent could elicit from
him that the defendant is staying there in the said village. In
those circumstances, it is definitely in the knowledge of the
GPA holder who belongs to the very same village. In view of
the above, it cannot be said that those aspects are not in the
knowledge of the GPA holder, but are in the knowledge of the
defendant and what he had said before the Trial Court is
beyond his knowledge. In the facts and circumstances, the
judgment which is relied on by the learned counsel for
appellant/defendant do not come to his rescue. If once a
litigant is aware of the particular proceedings and if he does not
contest the suit, at a later point of time, if he comes before the
Court and says that he is not aware of the said pending
proceedings, the burden lies on him to prove that pending suit
is not in his knowledge. In this case, the defendant is denying
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the knowledge of the pending suit, but the material on record
discloses otherwise. The Trial Court had rightly observed that
when he is denying that he is not residing in the place, he is
also not disclosing where he is residing or where he was
residing or what is his permanent address. Plaintiff has given
two GPAs, one is to the daughter and the another one is to one
Abdul Khadar. Who is that person and what is his relationship
with the defendant is also not disclosed. All these things clearly
demonstrates that there are no bonafides on the part of the
defendant in filing the Misc.Case.No.2/2015 and the Trial Court,
considering all these aspects had rightly dismissed the
application by order dated 28.06.2017 and this Court finds no
reasons to interfere. Hence, this Court is passing the following:
ORDER
i. Accordingly, the appeal is dismissed.
ii. All I.As., in the appeal, shall stand closed.
SD/-
(LALITHA KANNEGANTI)
JUDGE
BN
