G.V.NAGARATHNA Vs. LINGAMMA

JUDGEMENT

(1.) The present petitioners, who are defendant Nos.10, 11 and 12, in O.S.No.978/2014, in the Court of learned Senior Civil Judge and J.M.F.C., Magadi, (hereinafter for brevity referred to as 'trial Court'), have filed this writ petition seeking quashing of the order dtd. 5/8/2015 passed by the trial Court by allowing the interlocutory application filed by the plaintiff therein under Order III Rule 2 read with Sec. 151 of Code of Civil Procedure, 1908 (hereinafter for brevity referred to as 'CPC'), in permitting the Special Power of Attorney Holder of the plaintiff to proceed further in the suit.

(2.) Undisputedly and as could be seen from the copy of the plaint, which is produced at Annexure-'A', the suit was filed for the relief of partition and separate possession of the suit schedule properties by metes and bounds and also for permanent injunction. The present petitioners as defendant Nos.10, 11 and 12 appeared in the matter and filed their statement of objections. It is thereafter, the plaintiff filed an interlocutory application under Order III Rule 2 read with Sec. 151 of CPC, seeking permission to appoint Special Power of Attorney. The said application came to be allowed through the impugned order.

(3.) The learned counsel for the petitioners in his argument submitted that no opportunity was given to the present petitioners to file their statement of objections to the said application and to address their arguments, on the other hand, on the very same day of filing the IA., the impugned order came to be passed by allowing the application. Learned counsel for the petitioners further contends that, by virtue of the judgment of Hon'ble Apex Court in Janki Vashdeo Bhojwani and another -vs- Indusind Bank Ltd., and others, reported in (2005) 2 SCC 217, the Power of Attorney Holder cannot give evidence on certain aspects which are exclusively to the personal knowledge of the executant of the Power of Attorney. In such an event, the trial Court ought not to have allowed the application.