- 1 - HC-KAR NC: 2026:KHC:20444 W.P. No.20622/2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF APRIL, 2026 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.20622/2022 (GM-CPC) BETWEEN: SRI. PRAMOD NARAYAN BHOSLE AGED ABOUT 55 YEARS S/O NARAYAN SADASHIV BHOSLE R/AT PLOT NO.58, SECTOR-10 PCNIDA, BHOSARI, PUNE-411026. …PETITIONER (BY SRI. SACHIN B.S. ADV.,) AND: MRS. B. RATHNA S. SHETTY SINCE DECEASED AGED ABOUT 91 YEARS W/O LATE SHYAMA SHETTY R/AT VIJAYA NIVAS KEDINJE POST AND VILLAGE KARKALA TALUK-574110. 1. LEELA M. SHETTY AGED ABOUT 65 YEARS W/O LATE DR. B. MANJUNATH SHETTY. 2. SRI. AMITH SHETTY AGED ABOUT 40 YEARS S/O LATE DR. B. MANJUNATH SHETTY. 3. SRI. KARAN SHETTY AGED ABOUT 37 YEARS Digitally signed by ARSHIFA BAHAR KHANAM Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:20444 W.P. No.20622/2022 S/O LATE DR. B. MANJUNATH SHETTY. NOS.1 TO 3 ARE R/AT MUNSHI CHAMBER 2ND FLOOR, BLOCK C PASTHA LANE COLABA, MUMBAI-400005. 4. SMT. SUREKHA M. SHETTY AGED ABOUT 59 YEARS W/O LATE DR. B. MADHAVA SHETTY. 5. DEVISHRI M. SHETTY AGED ABOUT 35 YEARS D/O LATE B. MADHAVA SHETTY. 6. DEVIPRASAD (DEVIPRAKASH) M. SHETTY AGED ABOUT 31 YEARS S/O LATE B. MADHAVA SHETTY. NOS.4 TO 6 ARE R/AT SHIVALAYA K-6-72, DEVI COMPOUND NEAR KIREM CHURCH DAMASKATE, TALIPADI VILLAGE P O AIKALA, D K-57414. 7. MRS. B. GEETHA S. SHETTY AGED ABOUT 68 YEARS D/O LATE SHYAMA SHETTY NO.690/P, RATHNAKUNJA 14TH MAIN, 2ND PHASE J P NAGARA, BANGALORE-560078. 8. MR. B. ARUN KUMAR S. SHETTY AGED ABOUT 65 YEARS S/O LATE SHYAMA SHETTY NO.11, LIKODIA HOUSE, 2ND FLOOR PADAVAL NAGAR, THANE MAHARASTRA-400604. 9. SMT. SAROJA SHETTY AGED ABOUT 56 YEARS W/O LATE DINESH S. SHETTY - 3 - HC-KAR NC: 2026:KHC:20444 W.P. No.20622/2022 VIJAYA NIVASA KEDINJE VILLAGE AND POST KARKALA TALUK-574110. 10. B. SHAKUNTHALA SHETTY AGED ABOUT 60 YEARS D/O LATE SHYAMA SHETTY SILVER GARDEN, D WING FLAT NO.303, 304 KANTHI NAGAR J B NAGAR POST ANDHERI EAST, MUMBAI-400059. 11. ROSHAN SHETTY AGED ABOUT 29 YEARS S/O LATE VIJAYA KUMAR SHETTY R/AT OM SAI NANDALIKE VILLAGE POST KEDINJE-574110 KARKALA TALUK. …RESPONDENTS (BY SRI. K. CHANDRANATH ARIGA, ADV., FOR R7 & R8 V/O/DTD:18.10.2022, NOTICE TO R1 TO R6, R10 & R11 IS D/W V/O/DTD:05.12.2022, NOTICE TO R9 IS H/S) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDERS DTD.14.7.2022 ON IA NO.3 AND ORDER DTD.26.8.2022 ON IA NO.5 IN O.S.NO.67/2021 ON THE FILE OF SR. CIVIL JUDGE AND ACJM KARKALA AS PER ANNEXURE-A AND B AND CONSEQUENTLY ALLOW THE IA NO.3 AND 5 AS PRAYED FOR & ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 4 - HC-KAR NC: 2026:KHC:20444 W.P. No.20622/2022 CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL ORAL ORDER This writ petition is filed challenging the order dated order dated 14.07.2022 passed on IA.No.3 and the order dated 26.08.2022 passed on IA.No.5 in O.S.No.67/2021 by the Senior Civil Judge and ACJM, Karkala, (for short, 'the trial Court') and seeks to allow IA.Nos.3 and 5. 2. Heard Sri.Sachin B.S., learned counsel for the petitioner and Sri.K.Chandranath Ariga, learned counsel for respondent Nos.7 and 8. 3. The petitioner has filed a suit in O.S.No.67/2021 for recovery of money. In the said suit, the petitioner filed an application in IA No.3 under Order III Rule 2 of CPC seeking permission to represent the petitioner-plaintiff by Special Power of Attorney holder and to prosecute the suit on behalf of the plaintiff on certain grounds. The trial Court under the impugned order dated 14.07.2022 rejected the said application by recording the - 5 - HC-KAR NC: 2026:KHC:20444 W.P. No.20622/2022 reasons that the applicant is the special power of attorney holder of the plaintiff and not a competent person to give the evidence. 4. It is to be noticed that the respondent Nos.7 and 8 have filed a memo stating that the writ petition may be disposed of by permitting the Power of Attorney holder of the plaintiff to prosecute and adduce the evidence. Said memo is placed on record. 5. This Court in the case of Smt.Shaheen @ Hanifa vs. Shivakumar and others1 at para Nos.6 and 7 held as under: "6. It would always be for the plaintiff to lead evidence by herself or through her witnesses, including her witnesses, who could be her power of attorney, who is a recognized agent. In terms of order III rule 2 of CPC, the option having been provided under the CPC for leading of such evidence, the assessment of evidence cannot be done at the stage of consideration of application under Order III 1 WP No.100190/2021 DD. 31.01.2024 - 6 - HC-KAR NC: 2026:KHC:20444 W.P. No.20622/2022 Rule 2 of CPC. It is only after the evidence is led and the witness is cross-examined, would the court be in a position to assess whether the person, who has deposed has personal knowledge or not. In the event, during the evidence, it being categorically established that the witness had no personal knowledge, then the evidence could always be rejected as hearsay at the time of passing of a judgment after consideration of the evidence. In that view of the matter, I am of the considered opinion that the trial Court has prejudged the matter at the time of consideration of an application under Order III Rule 2 of CPC. 7. It would always be available for the defendants to take up contention to establish that the witness does not have personal knowledge, during the course of cross examination or to take up contention during the course of arguments. As such, I pass the following: ORDER i) Writ petition is allowed. ii) The impugned order date 30.11.2020 passed by the II Additional Senior Civil Judge Belgaum in O.S.No.292/2018 at Annexure-F is hereby quashed. - 7 - HC-KAR NC: 2026:KHC:20444 W.P. No.20622/2022 iii) Consequently, I.A.No.3 filed under Order III Rule 2 read with Section 151 of CPC is allowed. iv) Special power of attorney is permitted to lead oral and documentary evidence. v) It is made clear that this Court has not expressed any opinion on the personal knowledge or otherwise of the said witness which shall be considered by the trial court on the basis of the cross examination. vi) In view of disposal of the petition, pending interlocutory applications, if any, do not survive for consideration and are disposed of accordingly." 6. In view of the aforesaid decision and taking note of the fact that the respondent Nos.7 and 8 have no objection to adduce the evidence by the Special Power of Attorney holder of the plaintiff, the issue with regard to the admissibility of evidence and its assessment is required to be considered at the time of disposal of the - 8 - HC-KAR NC: 2026:KHC:20444 W.P. No.20622/2022 suit, and rejection of the said application at this stage may not be appropriate. 7. Hence, for the aforementioned reasons, I proceed to pass the following: ORDER i. Writ petition is allowed. ii. The impugned order dated 14.07.2022 passed on IA.No.3 and the order dated 26.08.2022 passed on IA.No.5 in O.S.No.67/2021 by the Senior Civil Judge and ACJM, Karkala, are hereby set aside. Consequently, IA Nos.3 and 5 are allowed. iii. The Special Power of Attorney holder of the plaintiff is permitted to adduce evidence and continue the proceedings in O.S.No.67/2021 before the trial Court. All contentions urged by the parties are kept open. Sd/- (VIJAYKUMAR A. PATIL) JUDGE BSR/List No.: 1 Sl No.: 29