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2018 DIGILAW 946 (KAR)

Dundawwa W/o Basappa @ Basangouda Halimani @ Agasbal v. Kenchawwa W/o Basappa Halimani @ Agasbal

2018-09-05

S.SUJATHA

body2018
ORDER : 1. This writ petition is directed against the order passed on I.A. No. IX in O.S. No.270/2009 (100/2011) on the file of the Court of the Civil Judge (Jr. Dn.) and JMFC, Sindagi. 2. Facts in brief are that, the plaintiff filed the suit in O.S. No.270/2009 (100/2011) against the defendants for declaration and permanent injunction claiming to be the legally wedded wife of deceased Basappa Mallappa Halimani @ Agasbai. In the said proceedings, I.A. No. IX was filed by defendant No.1, seeking permission to adduce evidence through her special power of attorney-holder on the ground that she is suffering from mental disorder due to the death of her husband and torture by her family members, which came to be rejected on hearing both the parties. Hence, this writ petition. 3. Learned counsel Sri Sudheer Kulkarni appearing for the petitioner would submit that, documents were placed on record to establish the factum of the defendant No.1/petitioner not keeping in good health to adduce evidence. These material documents were not appreciated by the Court below, on the other hand, the Court below proceeded to reject the application, observing that no documents have been produced by the petitioner herein to establish her claim. It is further submitted that, defendant No.1 is the legally wedded wife of deceased Basappa Mallappa Halimani. In support of his contention, learned counsel placed reliance on the judgment of the Hon’ble Apex Court in the case of Man Kaur (Dead) by LRs. Vs. Hartar Singh Sangha, reported in (2010) 10 SCC 512 . 4. I have given my thoughtful consideration to the arguments advanced by the learned counsel appearing for the petitioner. 5. The main dispute in the pending proceedings before the Court below is as much as the identity of the legally wedded wife of deceased Basappa Mallappa Halimani @ Agasbal. The plaintiff as well as defendant No.1 are claiming to be the legally wedded wife of the deceased Basappa Mallappa Halimani. In such circumstances, the crucial evidence has to be let in by both the parties, who are claiming to be the legally wedded wife of the deceased Basappa Mallappa Halimani. Trial is a voyage to discern the truth, which is invincible. The truth can be ascertained only on examination of the relevant witnesses. 6. In such circumstances, the crucial evidence has to be let in by both the parties, who are claiming to be the legally wedded wife of the deceased Basappa Mallappa Halimani. Trial is a voyage to discern the truth, which is invincible. The truth can be ascertained only on examination of the relevant witnesses. 6. It is true that, Order III Rule 1 and 2 of CPC empowers the holder of the power of attorney to act on behalf of the Principal. The marital relationship which is personal and having intricacies cannot be considered to be adduced by special power of attorney. In this regard, in the judgment relied upon by the learned counsel for the petitioner in Man Kaur’s case (supra), it is observed that, 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 recognised 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. 7. In the present fact situation, it is the matrimonial relationship, which requires to be established by the parties. The Hon’ble Supreme Court while considering the case of readiness and willingness with reference to a landlord seeking eviction of the tenant has observed as aforesaid. Even analyzing broadly, the said judgment though is distinguishable, but assuming it is applicable, it should fall within the recognised exception clause as carved out in the said judgment. It is not forthcoming from the record, who is such special attorney-holder claiming to be exclusively managing the affairs of the defendant No.1 to adduce the evidence on her behalf. 8. Even analyzing broadly, the said judgment though is distinguishable, but assuming it is applicable, it should fall within the recognised exception clause as carved out in the said judgment. It is not forthcoming from the record, who is such special attorney-holder claiming to be exclusively managing the affairs of the defendant No.1 to adduce the evidence on her behalf. 8. It is the basic principle that, a party to the suit has to appear in the witness box and state his own case on oath, and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct (vide judgment of Man Kaur’s case supra). That being the legal position, an attorney can only depose for the Principal in respect of such acts in pursuance to the power of attorney having rendered some acts, but he cannot depose for the Principal for the acts done by the Principal and not by him, which is in the personal knowledge of the Principal. 9. It is categorically observed by the Court below that no documents were produced by the defendant No.1 to establish her claim in support of IA. No. IX. Even considering the documents now placed before this Court, the essential requirement of the witness appearing and offering for cross-examination cannot be deviated merely on some medical documents now placed, which are no way substantial evidence to establish the factum of the mental status of the defendant No.1. 10. The Court below has extensively considered the factual aspects as well as the legal position in the light of the judgments of the Hon’ble Apex Court and dismissed the application, which cannot be faulted with. Accordingly, the writ petition stands dismissed as devoid of merits.