- 1 - HC-KAR NC: 2025:KHC-D:10948 WP No. 101381 of 2021 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 29TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL WRIT PETITION NO. 101381 OF 2021 (GM-CPC) BETWEEN: SHRI AMARSINGH S/O. VASANTRAO PATIL, AGE: 58 YEARS, OCC: AGRICULTURE, R/O. BEKKERI, TQ. RAIBAG, DIST. BELAGAVI-591317. …PETITIONER (BY SRI. SHRIPRASAD JOSHI, ADV. FOR SRI. RAVIRAJ C. PATIL, ADVOCATE) AND: 1. SHRI VIVEK S/O. VASANTRAO PATIL, AGE: 60 YEARS, OCC: AGRICULTURE, R/O. BEKKERI, TQ. RAIBAG, DIST. BELAGAVI-591317. 2. SHRI TRIKAL Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI Location: High Court of Karnataka, Dharwad Bench - 2 - HC-KAR NC: 2025:KHC-D:10948 WP No. 101381 of 2021 S/O. AMARSINGH PATIL, AGE: 30 YEARS, OCC: AGRICULTURE, R/O. BEKKERI, TQ. RAIBAG, DIST. BELAGAVI-591317. 3. SHRI POORNIMA D/O. AMARSINGH PATIL, AGE: 35 YEARS, OCC: HOUSEHOLD, R/O. BEKKERI, TQ. RAIBAG, DIST. BELAGAVI-591317. …RESPONDENTS (BY SRI. SANGRAM S. KULKARNI, ADV. FOR R1; SRI. BAHUBALI N. KANABARGI, ADV. FOR R1; NOTICE TO R2 AND R3 DISPENSED WITH) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227 CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI AGAINST THE ORDER ON INTERIM APPLICATION DATED 03.03.2021 I O.S.NO.11/2011 ON THE FILE OF SR.CIVIL JUDGE AND JMFC, RAIBAG AT ANNEXURE-A AND ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC-D:10948 WP No. 101381 of 2021 ORAL ORDER (PER: THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL) This petition is filed seeking following reliefs: “1) Issue a Writ in the nature of certiorari against the order on Interim Application dated 03.03.2021 in O.S.No.11/2011 on the file of Sr.Civil Judge and JMFC, Raibag at Annexure-A. 2) Issue any such Writ/Order as the Hon’ble Court deems fit.”. 2. Sri.Shriprasad Joshi, learned counsel appearing for the petitioner submits that the petitioner is defendant No.1 in a suit filed by respondent No.1 for relief of partition and separate possession of the suit schedule property. It is submitted that the plaintiff executed the power of attorney to present the suit and lead evidence. Thereafter, the power of attorney holder adduced the evidence and later, an application was filed by another power of attorney holder Sri.Pratap Alagouda Patil to represent the plaintiff which came to be allowed under the impugned order. It is submitted that the agent cannot give evidence with regard to the personal knowledge of the principal. It is further submitted that the suit is for partition and separate possession, the - 4 - HC-KAR NC: 2025:KHC-D:10948 WP No. 101381 of 2021 personal knowledge of the plaintiff cannot be allowed to be deposed by the agent before the Court and that too without cancelling the earlier power of attorney executed by the plaintiff in favour of the third person. It is also submitted that the application filed by the applicant/plaintiff to represent the plaintiff in the suit does not whisper anything with regard to the revocation of the earlier power of attorney. Hence, he seeks to allow the petition. In support of his contention, he placed reliance on the decision of this Court in the case of Abdul Basheer and Another v. State of Karnataka and Others1 and the decision of the Hon'ble Supreme Court in the case of S. Kesari Hanuman Goud v. Anjum Jehan and Others2. 3. Per Contra, Sri.Sangram S. Kulkarni, learned counsel appearing for the respondent No.1 supports the impugned order of the trial Court and submits that the plaintiff has executed the power of attorney to a different person and thereafter, the suit came to be decreed ex-parte and the petitioner challenged the same before the Appellate Court and the Appellate Court remanded the matter back to the trial Court for reconsideration. 1 2013 SCC OnLine Kar 5810 2 (2013) 12 SCC 64 - 5 - HC-KAR NC: 2025:KHC-D:10948 WP No. 101381 of 2021 It is further submitted that after remand, respondent No.1/plaintiff has executed power of attorney in favour of his own brother in view of his personal difficulties and social work which has been rightly accepted by the trial Court. Hence, he seeks to dismiss the petition. 4. I have heard the arguments of the learned counsel for the petitioner, the learned counsel for respondent No.1 and meticulously perused the material available on record. I have given my anxious consideration to the submissions advanced on both sides. 5. Respondent No.1 herein filed OS.No.11/2011 for the relief of partition and separate possession of the suit schedule property and the same is pending before the Senior Civil Judge and JMFC, Raibag. The records indicate that the plaintiff was represented by General Power of Attorney (for short ‘GPA’) holder during the proceedings and based on the evidence of the GPA holder, the suit came to be decreed and later, the same was set aside by the Appellate Court and the matter was remanded back for reconsideration on merits by providing fresh opportunity to the parties. It is required to be taken note that after the - 6 - HC-KAR NC: 2025:KHC-D:10948 WP No. 101381 of 2021 remand, the parties were permitted to lead the evidence before the Court. At that stage, the applicant/plaintiff filed an application under Order III Rule 2 r/w Section 151 of the Court of Civil Procedure (for short ‘CPC’) seeking permission that the GPA holder of the plaintiff to represent the suit. The trial Court under the impugned order allowed the said application by considering the objections of the petitioner. The contention of the learned counsel for the petitioner is that the agent under the power of attorney, though he is the brother of the plaintiff, cannot speak more than his knowledge and he cannot depose the personal knowledge of the plaintiff in the suit. The issue is no more res integra. The Hon'ble Supreme Court in the case of Abdul Basheer referred supra at paragraph No.7 held as under: 7. In the light of the above and on an examination of the record, it is evident that the having regard to the Issues that were framed, the burden was heavy on the plaintiffs to establish the serious allegations against the defendants. Therefore, one important aspect that arises for consideration in the above appeal is whether the Court below was justified in negating the case of the plaintiffs, among other grounds, on the ground that the general power of attorney who had tendered evidence for the plaintiffs was not competent to speak for the plaintiffs and that the plaintiffs not having taken the witness stand was fatal to their case. Though the Trial Court has not referred to the legal basis on which it could be said that the evidence of the power of attorney holder of the plaintiffs by itself could not sustain the case of the plaintiffs, the law is well settled and we may therefore usefully refer to the case law. - 7 - HC-KAR NC: 2025:KHC-D:10948 WP No. 101381 of 2021 In Janki Vasdeo Bhojwani v. Indus Ind Bank Ltd. [(2005) 2 SCC 217] The Apex Court after considering the divergent views taken by the High Courts on the question of Power of Attorney (See : Shambu Dutt Shastri v. State of Rajasthan [(1986) 2 WLN 713 (Raj)] , Ram Prasad v. Hari Narain [AIR 1998 Raj 185] , Pradeep Mohanbay v. Minguel Carlos Dias [(2000) 1 Bom LR 908] , and Humberto Luis v. Floriano Armando Luis [(2002) 2 Bom CR 754] ), has held thus: “13. Order 3 Rules 1 and 2 CPC empower the holder of power of attorney to “act” on behalf of the principal. In our view the word “acts” employed in Order 3 Rules 1 and 2 CPC confines only to in respect of “act” done by the power-of-attorney holder in exercise of power granted by the instrument. The term “acts” would not include deposing in place and instead of the principal. In other words, if the power- of-attorney holder has rendered some “acts” in pursuance of power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter of which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined.” In Man Kaur v. Hartar Singh Sangha [(2010) 10 SCC 512] , while relying on the decision in Janki Vasdeo Bhojwani, supra, the Apex Court has summarized for convenience, the position as to who should give evidence in regard to matters involving personal knowledge: “18. We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge: (a) An attorney-holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give - 8 - HC-KAR NC: 2025:KHC-D:10948 WP No. 101381 of 2021 formal evidence about the validity of the power of attorney and the filing of the suit. (b) If the attorney-holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney-holder alone has personal knowledge of such acts and transactions and not the principal, the attorney holder shall be examined, if those acts and transactions have to be proved. (c) The attorney-holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge. (d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by attorney-holder, necessarily the attorney-holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorised managers/attorney-holder or persons residing abroad managing their affairs through their attorney-holders. (e) where the entire transaction has been conducted through a particular attorney-holder, the principal has to examine that attorney-holder to prove the transaction, and not a different or subsequent attorney-holder. (f) Where different attorney-holders had dealt with the matter at different stages of the transaction, if evidence has to be led as to what transpired at those different stages, all the attorney-holders will have to be examined. - 9 - HC-KAR NC: 2025:KHC-D:10948 WP No. 101381 of 2021 (g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his “state of mind” or “conduct”, normally the person concerned alone has to give evidence and not an attorney-holder. A landlord who seeks eviction of his tenant, on the ground of his “bona fide” need and a purchaser seeking specific performance who has to show his “readiness and willingness” fall under this category. There is however a recognized exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or “readiness and willingness” Examples of such attorney-holders are a husband/wife exclusively managing the affairs of his/her spouse, a son- daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad.” The above decisions have been relied upon and followed in the case of S. Kesar Hanuman Goud v. Anjumjehan [2013 AIR SCW 3561] . Hence given the circumstances of the case on hand, it was imperative for the plaintiffs have tendered evidence in support of their case as regards the several documents and transactions that were personally executed by them or alleged to have been executed by them and in support of the serious allegations of fraud and forgery with reference to particular documents and hence there was virtually no evidence available on behalf of the plaintiffs in support of their case. Hence the finding of the Trial Court on this aspect of the matter cannot be faulted. The suit would fail on that ground alone. Hence the appeal is dismissed. No order as to costs.” - 10 - HC-KAR NC: 2025:KHC-D:10948 WP No. 101381 of 2021 6. The Hon'ble Supreme Court in the case of S. Kesari Hanuman Goud referred supra at paragraph No.23 held as under: “23. It is a settled legal proposition that the power- of-attorney holder cannot depose in place of the principal. The provisions of Order 3 Rules 1 and 2 CPC empower the holder of the power of attorney to “act” on behalf of the principal. The word “acts” employed therein is confined only to “acts” done by the power-of-attorney holder, in exercise of the power granted to him by virtue of the instrument. The term “acts”, would not include deposing in place and instead of the principal. In other words, if the power-of- attorney holder has preferred any “acts” in pursuance of the power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for acts done by the principal, and not by him. Similarly, he cannot depose for the principal in respect of a matter, as regards which, only the principal can have personal knowledge and in respect of which, the principal is entitled (sic liable) to be cross-examined. (See Vidhyadhar v. Manikrao [(1999) 3 SCC 573 : AIR 1999 SC 1441] , Janki Vashdeo Bhojwani v. Indusind Bank Ltd. [(2005) 2 SCC 217] , Shankar Finance and Investments v. State of A.P. [(2008) 8 SCC 536 : (2008) 3 SCC (Cri) 558 : AIR 2009 SC 422] and Man Kaur v. Hartar Singh Sangha [(2010) 10 SCC 512 : (2010) 4 SCC (Civ) 239] .)” 7. Keeping in mind the aforesaid enunciation of law, I am of the considered view that the trial Court was fully justified in allowing the application filed by the plaintiff to represent a suit by agent under the GPA. It is needless to observe that the agent of the principal is required to act within the permissible limits as - 11 - HC-KAR NC: 2025:KHC-D:10948 WP No. 101381 of 2021 held by the Hon’ble Supreme Court in the aforesaid decision. The trial Court taking note of the submissions and pleading has rightly come to conclusion that no prejudice would be caused to the other side if the application is allowed. I do not find any perversity or error in the order of the trial Court calling for any interference in the present petition. Accordingly, the writ petition is devoid of merit and the same is rejected. Sd/- (VIJAYKUMAR A.PATIL) JUDGE ABK /CT-AN List No.: 1 Sl No.: 3