Karnataka High Court
L Somashekar vs Smt Gundamma @ Jayamma on 30 January, 2014
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IN THE HIGH COURT OF KARNATAKA, AT BANGALORE
DATED THIS THE 30TH DAY OF JANUARY 2014
BEFORE
THE HON'BLE MR.JUSTICE H.BILLAPPA
W.P.No.47010/2013 (GM-CPC)
BETWEEN:
1. L.Somashekar,
S/o.Late Lingachari,
Aged 54 years.
2. Smt.Nagarathna,
W/o.L.Somashekar,
Age 46 years.
3. Mahesh,
S/o.L.Somashekar,
Age 27 years,
All are residing at Hosaholalu Grama,
Kasaba Hobli, K.R.Pet Taluk,
Mandya District - 571 426. ...PETITIONERS
(By Sri.H.C.Shivaramu, Adv.,)
AND:
Smt.Gundamma @ Jayamma,
Age 60 years,
R/o.No.676, 10th Cross,
Ramanuja Road,
2
Mysore - 570 001. ...RESPONDENT
(By Sri.Krishnamurthy.G.Hasyagar, Adv.,)
*****
This W.P. is filed under Articles 226 and 227 of the
Constitution of India praying to quash the order dated
13.6.2013 passed on I.A.No.VII in O.S.No.509/2009 by the
Learned II Civil Judge & JMFC, Mysore vide Ann-E.
This petition coming on for Preliminary Hearing this
day, the Court made the following:-
ORDER
In this writ petition under Articles 226 and 227 of the Constitution of India, the petitioners have called in question, the order dated 13.6.2013, passed by the Trial Court in O.S.No.509/2009 on I.A.No.7 vide Annexure-'E'.
2. By the impugned order at Annexure-'E', the Trial Court has rejected I.A.No.7 filed by the petitioners to expunge Ex.P2 sale-deed.
3. Aggrieved by that, the petitioners have filed this writ petition.
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4. Briefly stated the facts are:
The respondent has filed suit in O.S.No.509/2009 for specific performance of the sale agreement dated 12.4.1999. In the course of evidence, the sale agreement has been marked as Ex.P2. Thereafter, the petitioners have filed I.A.No.7 to expunge Ex.P2. The Trial Court by its order dated 13.6.2013 has rejected I.A.No.7. Therefore, this writ petition.
5. The learned counsel for the petitioners contended that the impugned order cannot be sustained in law. He also submitted that the Trial Court has erred while marking Ex.P2 which is an unregistered and insufficiently stamped document. Further he submitted that there was no opportunity for the petitioners to object marking of Ex.P2 and therefore, the impugned order cannot be sustained in law.
6. As against this, the learned counsel for the respondent submitted that the impugned order does not call 4 for interference. He also submitted that Ex.P2 has been marked in evidence on 24.5.2012 through PW.1. The petitioners' counsel was present when the document was marked. No objection has been raised. Thereafter, the petitioners have filed IA No.7 which is not permissible in law. The document has been marked in evidence without raising any objections. Therefore, the impugned order does not call for interference. He placed reliance on the following decisions:
(i) 2011(1) KCCR page 721 (ii) ILR 2007 KAR page 2786 (iii) AIR 2007 SC page 637
7. I have carefully considered the submissions made by the learned counsel for the parties.
8. The point that arises for my consideration is, Whether the impugned order calls for interference? 5
9. It is relevant to note, the suit in O.S.No.509/2009 has been filed respondent for specific performance of the sale agreement dated 12.4.1999. PW.1 has been examined on 24.5.2012 and exhibits P1 to P17 have been marked. The sale agreement has been marked as Ex.P2. At the time of marking Ex.P2, no objection has been raised. The Trial Court has marked the document. Thereafter, the petitioners have filed I.A.No.7 to expunge Ex.P2 on the ground that it is insufficiently stamped and not registered. The Trial Court has rejected the application.
10. In M/s.CAVE CATERERS PRIVATE LIMITED, BANGALORE vs. M/s.SUDHA ENTERPRISES, BANGALORE reported in 2011(1) KCCR page 721, this Court has held that once a document is received in evidence without any objection in terms of section 35 of the Act, the Court loses its power to review its decision.
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11. Similarly, in Smt.MALLIGA PANEER SELVAM vs. Sri RAJA SATHYANARAYANA SHETTY & Others reported in ILR 2007 Karnataka page 2786, this Court has observed that once the document has been marked as an exhibit in a case and the trial has proceeded all along on the footing that the document was an exhibit in the case, objection cannot be raised at a later stage.
12. Similarly, the Hon'ble Supreme Court in SHYAMAL KUMAR ROY vs. SUSHIL KUMAR AGARWAL reported in AIR 2007 SC page 637 has observed at para 20 that if no objection has been raised in regard to the admissibility of the document, at a later stage it cannot be permitted.
13. From the above decisions, it is clear, when once the document is marked in evidence without raising any objection, at a later stage objection cannot be raised. However the Trial Court has observed, even though the 7 document is marked as exhibit, it is always open for the petitioners to contend regarding admissibility and production of the document while considering the matter on merits. In the circumstances of the case, the impugned order does not call for interference. There is no merit in this writ petition and therefore, it is liable to be dismissed.
Accordingly, the writ petition is dismissed. The learned counsel for the respondent submits that he does not press I.A.No.1/2014. Accordingly, I.A.No.1/2014 is disposed of as not pressed.
Sd/-
JUDGE.
Bss.