Karnataka High Court

Basappa, S/O Channaveerappa Uppin vs Virabhadrappa, S/O Channaveerappa ... on 8 January, 2025

Author: Suraj Govindaraj

Bench: Suraj Govindaraj

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                                                               WP No. 101189 of 2022




                            IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
                                DATED THIS THE 8TH DAY OF JANUARY, 2025
                                                 BEFORE
                               THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
                                                                                R
                               WRIT PETITION NO. 101189 OF 2022 (GM-CPC)
                       BETWEEN:
                       BASAPPA S/O. CHANNAVEERAPPA UPPIN,
                       AGE: 63 YEARS, OCC: COOLIE,
                       R/O. VAKKALAGERI ONI, BETGERI,
                       TQ: AND DIST: GADAG -581117.
                                                                         ...PETITIONER
                       (BY SRI. DINESH M. KULKARNI, ADVOCATE)
                       AND:
                       1.   VIRABHADRAPPA
                            S/O. CHANNAVEERAPPA UPPIN,
                            AGE: 70 YEARS, OCC: AGRICULTURE,
                            R/O. BEHIND SAI BABA TEMPLE,
                            HATALGERI ROAD EXTENSION,
                            GADAG, TQ: AND DIST: GADAG-581117.

                       2.   MARIYAPPA,
                            S/O. CHANNAVEERAPPA UPPIN,
                            AGE: 68 YEARS, OCC: PRIVATE SERVICE,
                            R/O: LIG 591, 3RD CROSS,
ASHPAK
KASHIMSA                    YALAHANKA UPANAGAR, 4TH STAGE,
GIRIJA   A
MALAGALADINNI
BYAHATTI                    BANGALORE-64
Digitally signed by
ASHPAK KASHIMSA
Digitally
GIRIJA
          signed by
MALAGALADINNI
        AHIGH
Location: BYAHATTI
               COURT   3.   CHINNAPPA,
OF KARNATAKA
Location:  HIGH
DHARWAD BENCH
COURT
KARNATAKA
         OF                 @ CHANNAPPA S/O. CHANNAVEERAPPA UPPIN,
DHARWAD BENCH
                            AGE: 55 YEARS, OCC: AGRICULTURE,
                            R/O: VAKKALAGERI ONI, BETGERI,
                            TQ & DIST: GADAG -581117.

                       4.   IRAPPA,
                            S/O. RACHAPPA UPPIN,
                            AGE: 32 YEARS, OCC: AGRICULTURE,
                            R/O: VAKKALAGERI ONI, BETGERI,
                            TQ & DIST: GADAG -581117.

                       5.   BASAVARAJ,
                            S/O. CHINNAPPA BETGERI,
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                                        WP No. 101189 of 2022




     AGE: 72 YEARS, OCC: AGRICULTURE,
     R/O: HATTARAKIHAL,
     TQ: BASAVANABAGEWADI,
     DIST: VIJAYPUR- 586203.

6.   SHANKRAPPA S/O. VIRAPPA UPPIN,
     AGE: 70 YEARS, OCC: PRIVATE SERVICE,
     R/O: SAHADEV NAGAR, HUBBALLI- 580020.

7.   YALLAPPA S/O. VIRAPPA UPPIN,
     AGE: 68 YEARS, OCC: PRIVATE SERVICE,
     R/O: ANANDASHRAM ROAD, EXEENTION,
     GADAG- 581117.

8.   SMT. SHANKARAVVA,
     W/O. CHANNABASAPPA UPPIN,
     AGE: 65 YEARS, OCC: AGRICULTURE,
     R/O: BEHIND SAI BABA TEMPLE,
     EXTENTION, HATALGERI ROAD,
     GADAG- 581117.

9.   PARVATI W/O. NAGAPPA ARALI,
     AGE: 36 YEARS, OCC: AGRICULTURE,
     R/O: C/O: JAGADGURU SHRI SHIVARATRI
     DESHOKENDRA MAHASWAMI COLLEGE,
     MANGALAMMA PALYA, BANGALORE-590001.

10. SHOBHA,
    W/O. YALLAPPA KAMATAR,
    AGE: 34 YEARS, OCC: HOUSEHOLD,
    R/O: C/O: BHEEMAPPA BHOOSAPPANAVAR,
    SATTUR, DHARWAD-580001.

11. YALLAVVA,
    @ LALITA W/O. BHEEMAPPA UPPIN,
    AGE: 60 YEARS, OCC: PRIVATE SERVICE,
    R/O: LIG 321, NAVANAGAR,
    HUBBALLI, DIST: DHARWAD-20.

                                                ...RESPONDENTS
(BY MRS. TRUPTI P. SADEKAR, SRI. C.S. SHETTAR AND
    SMT. KAVYA SHETTAR, ADVOCATES FOR R2-R3;
    R1, R7, R8, R11 SERVED;
    NOTICE TO R4-R6, R9-R10 IS DISPENSED WITH)
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                                           WP No. 101189 of 2022




      THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN
THE NATURE OF CERTIORARI TO QUASH THE ORDER DATED
11/02/2022 PASSED BY ADDITIONAL SENIOR CIVIL JUDGE AND
JMFC., GADAG IN O.S.NO.36/2011 ON I.A.NO.18 VIDE ANNEXURE-F,
AS NULL AND VOID.

    THIS PETITION COMING ON FOR PRELIMINARY HEARING IN 'B'
GROUP THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

                          ORAL ORDER

(PER: THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ)

1. The petitioner is before this Court seeking the

following reliefs:

A) Issue a writ in the nature of certiorari to quash the order dated 11/02/2022 passed by Additional Senior Civil Judge and JMFC., Gadag in O.S.No.36/2011 on I.A.No.18 vide ANNEXURE-F, as null and void. B) Issue any other writ or direction as this Hon'ble Court may deems fit in the interest of justice and equity.

2. The brief facts of the case are:

2.1. Respondents No.1 to 3 had filed a suit in

O.S.No.36/2011 before the Additional Senior

Civil Judge and JMFC, Gadag, seeking for

partition and separate possession. In the said

suit, the petitioner was arrayed as defendant

No.8 who had filed a common written

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statement along with defendants No. 5 to 7 and

9.

2.2. In the suit filed, at para 5, there was a

contention taken that a Will had been executed

by the deceased mother of the plaintiffs and

defendants 5 to 9, Fakiravva, bequeathing the

property in R.S. No.360/2A in favor of plaintiffs

1, to 3 and defendant No. 8, which was

disputed in the written statement.

2.3. Plaintiff No.1 led his evidence, and in his

evidence, he deposed on behalf of plaintiffs

No.2 and 3 also.

2.4. In his evidence, plaintiff No.1, who was

examined as PW-1, has deposed that he was

not aware of the Will, who got the said Will

prepared and who executed it. Suffice it to say

that he has deposed that he had no knowledge

of the Will.

2.5. Subsequent thereto, plaintiff No.2 sought to

lead his own evidence as PW-2. However, his

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evidence could not be recorded in view of his

hearing impairment.

2.6. Thereafter, the wife of plaintiff No.2 filed an

application under Order III Rule 2 of the Code

of Civil Procedure, seeking permission to

examine herself on behalf of plaintiff No.2 as

his power of attorney holder.

2.7. The said application was opposed by the

petitioner herein. However, the said application

came to be allowed by order dated 11.02.2022.

2.8. It is challenging the said order that the

petitioner is before this Court.

3. The submission of Sri.Dinesh Kulkarni, learned

counsel for the petitioner, is that;

3.1. It is only a person who has personal knowledge

of the circumstances involved in the case who

can be examined as a Power of Attorney. His

categorical submission is that the wife of

plaintiff No.2 has no knowledge of the subject

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matter of the proceedings, hence she cannot

lead evidence.

3.2. Secondly, the Power of Attorney intends to

depose contrary to the deposition made by PW-

1/plaintiff No.1. The application has been filed

with mala fide intention to overcome the

admissions made by PW-1/plaintiff No.1, which

ought to have been taken into consideration by

the Court, and the application should have been

dismissed.

3.3. Lastly, he submits that PW-1 having led

evidence on behalf of all the plaintiffs, no

further evidence could be permitted to be taken

on record, either by the wife of plaintiff or

anyone else.

4. Ms.Trupti Sadekar, learned counsel appearing for

respondents No.2 and 3/plaintiffs No.2 and 3, submits

that;

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4.1. Once earlier, when plaintiff No.2 sought

permission to lead evidence, the same came to

be opposed by the petitioners, which opposition

was rejected by the Trial Court. Thereafter,

when plaintiff No.2 was examined on

22.03.2021, the Court having came to a

conclusion that plaintiff No.2 was unable to

hear properly and was giving irrelevant answers

not related to the questions posed, closed the

cross-examination. It is thereafter that the wife

of plaintiff No.2 sought permission to lead

evidence.

4.2. Plaintiff No.1 is not authorized to lead evidence

on behalf of plaintiffs No.2 and 3. Thus, any

admission made by plaintiff No.1 is only with

reference to plaintiff No.1 and cannot be held

against plaintiffs No.2 and 3, merely because

he had deposed that he was deposing on behalf

of plaintiffs No.2 and 3.

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4.3. The wife of plaintiff No.2, being a family

member, has knowledge about the affairs of the

family. The aspect of the Will stated to be

executed on 06.04.2009, is much after the wife

had been married to plaintiff No.2, inasmuch as

as on the date of filing the suit in the year

2011, plaintiff No.2 was 58 years old, and both

of them had been married for a long period of

time and as on the date of the execution of the

Will, the plaintiff No.2 was married to the Power

of Attorney, who is his wife.

4.4. On these grounds, she submits that the order

passed by the Trial Court is proper and correct,

and does not require any interference.

5. Heard Sri.Dinesh M. Kulkarni, learned counsel for the

petitioner and Ms. Trupti Sadekar, learned counsel for

respondents No.2 and 3 and perused the records.

6. The points that would arise for consideration are:

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(i) Whether an application under Order III Rule 2 of the Code of Civil Procedure, filed by the Power of Attorney of a party to a suit, can be rejected on the basis of the contention of the opposite party that the evidence cannot be led for such person to overcome the admission of another witness?

(ii) Whether it can be said that the wife of a party to the litigation has no knowledge of the litigation, requiring an application filed under Order III Rule 2 of the CPC by such Power of Attorney holder to be rejected?

(iii) Whether the deposition of one of the parties would bind the other party when there is no Power of Attorney or specific authorization which was issued by such party?

(iv)    What order?
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7. Answer to point No.(i) Whether an application under Order III Rule 2 of the Code of Civil Procedure, filed by the Power of Attorney of a party to a suit, can be rejected on the basis of the contention of the opposite party that the evidence cannot be led for such person to overcome the admission of another witness?

7.1. In the present case, it is not in dispute that the

Power of Attorney holder is the wife of plaintiff

No.2. The contention of learned counsel for the

petitioner, Sri.Dinesh M. Kulkarni, is that the

said wife is proposing to lead evidence to

overcome the admission made by PW-1. This

contention of the petitioner can only be tested

once an affidavit in lieu of evidence is filed.

7.2. At the time of consideration of an application

under Order III Rule 2 of CPC, it cannot be

assumed or presumed as to what evidence

would be led by the witness if permission is

granted. Whenever evidence is led by the

Power of Attorney holder after such permission

is granted by allowing an application under

Order III Rule 2 of CPC, the court would be well

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within its right to consider the evidence that

has been led, and to eschew any portion of the

evidence already led by other witnesses on

behalf of the said party.

7.3. That apart, it would always be open for the

petitioner to cross-examine the said witness on

her deposition to establish either the knowledge

of the witness or the falsity of the deposition

made.

7.4. In that view of the matter, I answer to point

No. 1 by holding that an application under

Order III Rule 2 of the Code of Civil Procedure,

filed by the Power of Attorney of a party to a

suit, cannot be rejected on the basis of the

contention of the opposite party that evidence

will be led to overcome the admission of

another witness.

8. Answer to Point No.(ii) Whether it can be said that the wife of a party to the litigation has no knowledge of the litigation, requiring an application filed under Order III Rule 2 of the

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CPC by such Power of Attorney holder to be rejected?

8.1. The power of attorney holder, as aforesaid, is

the wife of plaintiff No.2. Plaintiff No.2 is stated

to be aged about 58 years as on the date of

filing of the suit in the year 2011. The Will is

stated to have been executed two years earlier,

in the year 2009. There is no dispute regarding

the Power of Attorney holder being the wife of

plaintiff No.2 as on the date on which the Will

was executed.

8.2. The dispute in the present proceedings relates

to a joint family where relief of partition has

been sought for. The wife of one of the parties

cannot be said to be a third party who has no

knowledge of the affairs of the family.

8.3. Therefore, an application filed under Order III

Rule 2 of CPC cannot be rejected on that

ground.

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8.4. Be that as it may, at the time of consideration

of an application under Order III Rule 2 of CPC,

it is not possible to ascertain the knowledge of

the witness. It is only after evidence is led and

during cross-examination that a party can

establish whether the witness has no

knowledge, requiring such evidence to be

eschewed or not can be considered at the time

of passing the final judgment.

8.5. In the present case, at this stage, I am unable

to accept the submission of Sri. Dinesh Kulkarni

that the wife of plaintiff No.2 has no knowledge

regarding the subject matter of the suit. It

would, however, be open for the petitioner to

establish the same during the course of cross-

examination.

8.6. Hence I answer point No. 2 by holding that in a

suit for partition it can be said that the wife of a

party to the litigation has no knowledge of the

litigation and.or the affairs of the family,

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requiring an application filed under Order III

Rule 2 of the CPC by such Power of Attorney

holder to be rejected, whether such knowledge

exists or not will have to be established by both

parties during the course of cross-examination.

9. Answer to point No.(iii) Whether the deposition of one of the parties would bind the other party when there is no Power of Attorney or specific authorization which was issued by such party.

9.1. In the present case, the submission of

Sri.Dinesh Kulkarni is that, plaintiff No.1 has led

evidence on behalf of all the plaintiffs, and as

such, his evidence is binding on all the

plaintiffs. This is an aspect that would have to

be considered by the Court while considering

the evidence, as to whether there is any

authority by plaintiffs No.2 and 3 conferred on

plaintiff No.1 to lead evidence on their behalf,

so as to make his evidence binding on them.

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9.2. Merely because PW-1 was plaintiff No.1 would

not ipso facto or automatically bind any

admission made by him on the other plaintiffs.

It may happen in certain circumstances that

one of the parties turns hostile or colludes with

the other party. It is for the Court to examine

such matters to determine whether the

evidence led by one of the parties and/or the

admissions given by one of the parties would be

binding on the others, by examining the

evidence which has been tendered and taking

into consideration the submissions made.

9.3. For a person to depose on behalf of another, it

would be required that there is some kind of

authorisation to so depose, without such

authorisation, it can not be presumed that a co-

plaintiff is authorised to depose on behalf of

another co-plaintiff. Inference could be so

drawn if no evidence is led by any other co-

plaintiff, however if another co-plaintiff

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approaches the court to lead evidence and

contends that the evidence of a co-plaintiff does

not bind such co-plaintiff the court would have

to consider the same and pass necessary orders

taking into consideration all relevant aspects of

the case.

9.4. Hence I answer point No.3 by holding that it is

not in all cases that the evidence led by one of

the parties would be binding on all the parties.

The same would depend on the facts and

circumstances. If the other parties were to

challenge the deposition on reasonable or

tenable grounds, the same would have to be

considered by the Court.

10. Answer to Point No.(iv) What Order:

10.1. In view of my answers to the aforesaid points, I

do not find any infirmity in the order passed by

the Trial Court. No grounds having been made

out, the petition stands dismissed.

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10.2. Considering that the suit is of the year 2011

and could not be proceeded with on account of

the stay granted by this Court, the Trial Court is

requested to expedite the disposal of the same.

10.3. The submission of the learned counsel for the

petitioner and learned counsel for respondents

No.2 and 3, that they will cooperate in all

respects for the expeditious disposal of the

matter without seeking unnecessary

adjournments, is placed on record.