- 1 - HC-KAR NC: 2025:KHC:28696 WP No. 15294 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE JAYANT BANERJI WRIT PETITION NO. 15294 OF 2023 (GM-CPC) BETWEEN: MS.DIMPU, AGED ABOUT 33 YEARS, D/O J.DORAISWAMY, NO.101, BEERAPPA ROAD, MUNISHWAMAPPA LAYOUT, RAMASWAMY PALYA, MARUTHI SEVA NAGAR, BENGALURU-560 033. REPRESENTED BY HER SPA HOLDER SRI.YESELRAJ, S/O.AROCKIYASWAMY, AGED ABOUT 61 YEARS, NO 97, K.R.NAGAR, HARVEST CHURCH ROAD, OPPST. KSRP CAMP, BENGALURU-560 099. …PETITIONER (BY SRI.SHRIDHARA K., ADVOCATE) AND: 1. SMT.LATHA, W/O LATE RAJU, AGED ABOUT 55 YEARS, Digitally signed by K G RENUKAMBA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:28696 WP No. 15294 of 2023 2. SMT.GEETHA, W/O LATE V.RAJU, AGED ABOUT 52 YEARS, 3. SRI.RAJESH, S/O LATE V.RAJU, AGED ABOUT 25 YEARS, ALL ARE R/A NO.29/A KHATHA NO.288, 12TH CROSS, VENKATESHAPPA LAYOUT, HALAGEVADERAHALLI, KENGERI HOBLI, BENGALURU-560 098. 4. THE MANAGER, UNION BANK OF INDIA, DEVANAHALLI BRANCH, BENGALURU. …RESPONDENTS (BY SRI.UMESH.R.S., ADVOCATE FOR R1 AND R2, SRI.BASAVARAJ.R.N., ADVOCATE FOR R4 R3 SERVED) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE OR QUASH THE ORDER PASSED BY THE VII ADDL. CITY CIVIL JUDGE, BENGALURU (CCH-19) DATED 19.04.2023 IN O.S NO.6555/2015 AND ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING B GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC:28696 WP No. 15294 of 2023 CORAM: HON'BLE MR. JUSTICE JAYANT BANERJI ORAL ORDER Heard learned counsel Sri. Shridhara K., for the petitioner and learned counsel Sri. Umesh R.S., appearing for respondents No.1 and 2. No one appears for respondents No.3 and 4. 2. The petitioner filed a suit for declaration and injunction through a Special Power of Attorney (hereinafter referred to as 'SPA' for short) holder authorized by the SPA dated 20.07.2015. It is admitted to the counsel for the parties that no issue was framed by the Court with regard to the validity of the SPA, i.e., to say, whether the SPA was duly executed in favour of the SPA holder. However, the trial Court relying upon the provision of Section 85 of the Indian Evidence Act, 1872 proceeded to dismiss the suit, on the ground that the SPA was not duly notarised and therefore its authenticity was suspect. - 4 - HC-KAR NC: 2025:KHC:28696 WP No. 15294 of 2023 3. I have perused the records and heard the submissions of learned counsel for the parties. 4. It is the contention of the learned counsel for the petitioner that the judgment cited by the plaintiff's counsel before the trial Court was not understood by the Court in its proper perspective and therefore, the suit was dismissed. It is stated that if the SPA dated 20.07.2015 suffered from any defect, the same was a technical defect that could always be cured. It is his submission that after the filing of the suit, a properly notarised SPA dated 07.09.2015 was submitted by the plaintiff through its Power of Attorney before the trial Court, yet the trial Court dismissed the suit. 5. The contention of the learned counsel for the respondent is that the Power of Attorney that is enclosed as Annexure -E to this petition is defective in as much as, there is no identification made by the advocate and it is neither signed nor notarized. - 5 - HC-KAR NC: 2025:KHC:28696 WP No. 15294 of 2023 6. Learned counsel for the respondent has further stated that even the instant petition has been filed without producing the valid Power of Attorney, to say that they had been authorized to file this petition. 7. In view of the Power of Attorney that appears on page 57, which is on record, and in view of the fact that the execution of the subsequent SPA of 07.09.2015 is noticed by the trial Court, this objection is rejected. 8. There are several judgments of Courts which have held that merely because the Power of Attorney is not duly notarized does not mean that the concerned person was not authorized to institute the suit. Notarization of Power of Attorney is a matter of procedure and raises the presumption of authority of the person to institute the suit. It does not mean that Power of Attorney executed in favour of a particular person, but not duly notarized does not confirm power upon the person to institute the suit. It has also been held that if such a - 6 - HC-KAR NC: 2025:KHC:28696 WP No. 15294 of 2023 defect of the Power of Attorney not being notarized, is removed subsequently during the pendency of the suit, and it is followed by ratification of the authority of a person who has been authorized to institute the suit, it is not a fatal infirmity that would hit the maintainability of the suit itself. Judgments in this regard are Grafitek International Vs. K.K. Kaura and others reported in 96 (2002) DLT 385, K. Santhanam Vs. S. Kavita reported in (2010) 12 MAD CK 0009 and Natubhai and Chotabhai Patel Vs. Smt. Patnam Shakuntala and another decided on 28th July 2006 have been cited which are relevant to the case on hand. 9. Under the circumstances and facts of the instant case, without the trial Court recording a clear finding regarding the aforesaid two powers of attorney and considering them in the light of the aforesaid judgments, after framing an appropriate preliminary issue, I find that the order impugned of 19.04.2023 cannot be sustained. It is not as if, a preliminary issue was framed and a finding - 7 - HC-KAR NC: 2025:KHC:28696 WP No. 15294 of 2023 on which rendered the suit liable to be dismissed. Though an attempt has been made by the learned counsel for the respondent to submit that against the aforesaid order of the VII Additional City Civil Judge, Bengaluru (CCH-19), an appeal under Section 96 of the CPC would lie, however this Court is not impressed by the arguments. A decree as defined under Section 2(2) of the CPC does not include in its ambit, the order impugned as it stands. 10. Under the circumstances, this petition is allowed. The impugned order dated 19.04.2023 passed by the VII Additional City Civil Judge, Bengaluru (CCH-19) in O.S.No.6555 of 2015 is set aside. The matter is remitted to the trial Court with a direction to take a fresh look into the issue being sought to be raised as to the maintainability of the suit, after duly framing an issue and considering the two powers of attorney in light of the law laid down by various Courts. It is clarified that the observations made herein are only for purpose of adjudication of the instant case and it would be open to - 8 - HC-KAR NC: 2025:KHC:28696 WP No. 15294 of 2023 the trial Court to consider the issue so framed independently. 11. The parties are directed to appear before the trial Court on 13.08.2025, on which date the Court concerned will pass appropriate orders. Sd/- (JAYANT BANERJI) JUDGE BVK List No.: 1 Sl No.: 10