- 1 - NC: 2025:KHC-D:280 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 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, YALAHANKA UPANAGAR, 4TH STAGE, BANGALORE-64 3. CHINNAPPA, @ CHANNAPPA S/O. CHANNAVEERAPPA UPPIN, 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, R GIRIJA A BYAHATTI Digitally signed by GIRIJA A BYAHATTI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH ASHPAK KASHIMSA MALAGALADINNI Digitally signed by ASHPAK KASHIMSA MALAGALADINNI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - NC: 2025:KHC-D:280 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) - 3 - NC: 2025:KHC-D:280 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 - 4 - NC: 2025:KHC-D:280 WP No. 101189 of 2022 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 - 5 - NC: 2025:KHC-D:280 WP No. 101189 of 2022 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 - 6 - NC: 2025:KHC-D:280 WP No. 101189 of 2022 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; - 7 - NC: 2025:KHC-D:280 WP No. 101189 of 2022 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. - 8 - NC: 2025:KHC-D:280 WP No. 101189 of 2022 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: - 9 - NC: 2025:KHC-D:280 WP No. 101189 of 2022 (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? - 10 - NC: 2025:KHC-D:280 WP No. 101189 of 2022 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 - 11 - NC: 2025:KHC-D:280 WP No. 101189 of 2022 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 - 12 - NC: 2025:KHC-D:280 WP No. 101189 of 2022 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. - 13 - NC: 2025:KHC-D:280 WP No. 101189 of 2022 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, - 14 - NC: 2025:KHC-D:280 WP No. 101189 of 2022 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. - 15 - NC: 2025:KHC-D:280 WP No. 101189 of 2022 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 - 16 - NC: 2025:KHC-D:280 WP No. 101189 of 2022 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. - 17 - NC: 2025:KHC-D:280 WP No. 101189 of 2022 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. Sd/- (SURAJ GOVINDARAJ) JUDGE gab CT-MCK List No.: 1 Sl No.: 67