Karnataka High Court
Sri. D Munibeerappa vs Smt. Narayamma (Dead) on 27 October, 2023
Author: S.G.Pandit
Bench: S.G.Pandit
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NC: 2023:KHC:38486
WP No. 23661 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S.G.PANDIT
WRIT PETITION NO. 23661 OF 2023 (GM-CPC)
BETWEEN:
SRI. D MUNIBEERAPPA
S/O LATE DODDAMUNIYAPPA,
AGED ABOUT 57 YEARS,
R/AT KALLAKERE,
K R PURAM HOBLI,
BENGALURU SOUTH TALUK-560036.
...PETITIONER
(BY SRI. SHIVABEERAIAH S M, ADV.)
AND:
SMT. NARAYANAMMA (DEAD)
W/O LATE DODDAMUNIYAPPA
1. SRI MUNIPOOJAPPA
Digitally signed S/O LATE DODDAMUNIYAPPA
by A K
CHANDRIKA AGED ABOUT 55 YEARS
Location: High
Court Of 2. SMT. LAKSHMIDEVAMMA
Karnataka
D/O LATE DODDAMUNIYAPPA
AGED ABOUT 60 YEARS
3. SMT. NAGARATHNA
D/O LATE DODDAMUNIYAPPA
AGED ABOUT 58 YEARS
4. SMT. VIJAYALAKSHMI
D/O LATE DODDAMUNIYAPPA
AGED ABOUT 56 YEARS
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NC: 2023:KHC:38486
WP No. 23661 of 2023
5. SMT. KANTHAMMA
D/O LATE DODDAMUNIYAPPA
AGED ABOUT 54 YEARS
RESPONDENTS NOS.2 TO 6 ARE
THE RESIDENTS OF KALLAKERE,
K.R.PURAM HOBLI,
BENGALURU SOUTH TALUK - 560036.
6. SRI R UMAPRASAD
S/O LATE B RUDRAPPA
AGED ABOUT 66 YEARS
R/AT NO.237, 13TH CROSS,
2ND STAGE, INDIRANAGAR
BENGALURU - 560017.
7. SMT. S G SHASHIKALA
W/O R N PARAMESHWARA
AGED ABOUT 55 YEARS
R/AT NO.14, ULSOOR ROAD,
INDIRANAGAR,
BENGALURU - 560038.
8. SMT. NANDA
W/O UMAPRASAD,
AGED ABOUT 63 YEARS
R/AT NO.237, 13TH CROSS,
2ND STAGE, INDIRANAGAR,
BENGALURU - 560017.
...RESPONDENTS
(BY SRI V.B. SHIVAKUMAR, ADV. FOR R7 & R8
V/O DATED 27.10.2023 NOTICE TO R1-R6 ARE D/W)
THIS PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO SET ASIDE ANNX-A ORDER
DATED 04.10.2023 PASSED IN O.S.NO.6922/2000 PENDING ON THE
FILE OF THE XLIII ADDL. CITY CIVIL AND SESSION JUDGE (CCH-44)
AT BENGALURU, RESULTANTLY DIRECT THE TRAIL COURT TO MARK
THE COPY OF SALE AGREEMENT DATED 04.06.2000 ANNX-B IN THE
EXAMINATION IN CHIEF OF THE PLAINTIFF.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
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NC: 2023:KHC:38486
WP No. 23661 of 2023
ORDER
The petitioner/plaintiff in O.S.No.6922/2000 on the file of XLIII Additional City Civil and Sessions Judge at Bengaluru is before this Court, aggrieved by order dated 04.10.2023 rejecting marking of Xerox copy of agreement of sale dated 04.06.2000.
2. Heard learned counsel Sri.Shivabeeraiah S.M. for petitioner and learned counsel Sri.V.B.Shivakumar for caveator/respondents No.7 and 8. Perused the writ petition papers.
3. Learned counsel for the petitioner would submit that the suit of the petitioner/plaintiff is one for declaration that the suit schedule property is joint family property of plaintiff, defendants No.1 to 6 and Late Doddamuniyappa and further to declare that the sale deed dated 29.09.2000 executed by the first defendant in favour of defendants No.7 and 8 as invalid, void and not binding on the rights of the plaintiff. Learned counsel for the petitioner would -4- NC: 2023:KHC:38486 WP No. 23661 of 2023 submit that during the course of plaintiff's evidence, the plaintiff/petitioner herein sought permission to mark Xerox copy of the agreement of sale dated 04.06.2000 executed by defendant No.7 in favour of one Sri.M.Revanna. It is submitted that even before defendant No.1 executed sale deed dated 29.09.2000 in favour of defendants No.7 and 8, defendant No.7 entered into agreement of sale dated 04.06.2000 in favour of Sri.M.Revanna in respect of the suit schedule property. Learned counsel for petitioner would submit that the said agreement of sale would be absolutely necessary for deciding the lis between the parties. He submits that original of said agreement is with respondent/defendant No.7 and hence the petitioner/ plaintiff sought permission to mark Xerox copy of the said agreement. Learned counsel for the petitioner/plaintiff had got issued notice through his Advocate dated 29.08.2023 asking defendant No.7 to produce the original agreement of sale dated 04.06.2000 before the Court. As defendant No.7 failed to produce original agreement of sale dated 04.06.2000, the petitioner/plaintiff sought -5- NC: 2023:KHC:38486 WP No. 23661 of 2023 permission to mark Xerox copy of agreement dated 04.06.2000.
4. Learned counsel for the petitioner would submit that the trial Court committed an error in rejecting petitioner's request to mark Xerox copy of the agreement of sale dated 04.06.2000 on the ground that Xerox copy of agreement cannot be marked and the document is not duly stamped. It is submitted that the trial Court on the above two grounds could not have rejected petitioner's request to mark Xerox copy of the agreement. Learned counsel would submit that, as the petitioner/plaintiff had issued notice to defendant No.7 to produce the original of agreement dated 04.06.2000 and as defendant No.7 failed to produce original agreement, the petitioner would be entitled to mark Xerox copy of the agreement dated 04.06.2000 in terms of Section 65 of the Indian Evidence Act. Further, learned counsel would submit that the petitioner/plaintiff is not enforcing the agreement dated 04.06.2000 nor claiming any right through the said sale -6- NC: 2023:KHC:38486 WP No. 23661 of 2023 agreement and petitioner/plaintiff intends to mark the said document only for collateral purpose. Hence, the question of stamp duty on the said agreement would not arise in the present suit. Thus, he prays for allowing the writ petition and seeks permission to mark the Xerox copy of agreement dated 04.06.2000.
5. Per contra, learned counsel Sri.V.B.Shivakumar for respondents No.7 and 8 would support the order of the trial Court and he justifies rejection of petitioner's request to mark Xerox copy of the agreement dated 04.06.2000. Learned counsel would submit that the petitioner has not laid any foundation in terms of Section 65 of the Evidence Act. Further, learned counsel referring to the plaint would submit that the plaint would not refer to agreement dated 04.06.2000 and there is no foundation in the plaint with regard to production of Xerox copy of the agreement of sale dated 04.06.2000. Moreover, he submits that the petitioner/plaintiff is not party to the said agreement dated 04.06.2000. The agreement dated 04.06.2000 is between -7- NC: 2023:KHC:38486 WP No. 23661 of 2023 defendant No.7 and one Mr.M.Revanna. He submits that said agreement is not relevant to decide the dispute between the parties in the present suit. Thus, he prays for dismissal of the writ petition.
6. Having heard the learned counsel for the parties and on perusal of the writ petition papers, I am of the view that the trial Court rightly rejected petitioner's request for marking Xerox copy of the sale agreement dated 04.06.2000 and the impugned order is neither perverse nor suffers from any material irregularity so as to warrant interference under Article 227 of the Constitution of India.
7. The trial Court rejected petitioner's request to mark Xerox copy of the agreement dated 04.06.2000 on two grounds i.e., there is no foundation with regard to Xerox copy of agreement dated 04.06.2000 and that the document is not duly stamped.
8. On going through the plaint, it is seen that there is no mention regarding agreement dated 04.06.2000 in the -8- NC: 2023:KHC:38486 WP No. 23661 of 2023 plaint, nor there is foundation insofar as agreement dated 04.06.2000 is concerned. Moreover, as submitted by the learned counsel for respondents No.7 and 8, petitioner/ plaintiff is not a party to the sale agreement dated 04.06.2000. The sale agreement is between respondent No.7 and one Sri.M.Revanna. When there is no foundation in terms of Section 65 of the Indian Evidence Act, the trial Court is justified in rejecting petitioner's request for marking Xerox copy of agreement of sale dated 04.06.2000. The petitioner contended that notice to defendant No.7 was issued to produce original of agreement dated 04.06.2000. The notice which is placed on record as Annexure-E and marked as Ex.P13 in the suit is dated 29.08.2023. The said legal notice is issued asking defendant No.7 to produce original of agreement dated 04.06.2000, when the matter was at the stage of evidence. The said legal notice issued to defendant No.7 cannot be considered as foundation to mark Xerox copy of agreement dated 04.06.2000 in terms of Section 65 of Evidence Act. In the facts and circumstances of the case, -9- NC: 2023:KHC:38486 WP No. 23661 of 2023 whether the agreement dated 04.06.2000 is duly stamped or not, need not be gone into.
9. One of the prayers of the petitioner/plaintiff in the suit is to declare that the sale deed dated 29.09.2000 executed by the first defendant in favour of defendants No.7 and 8 is invalid, void and not binding on the rights of the plaintiff. For considering the said prayer, agreement entered into between defendant No.7 and one Sri.M.Revanna is irrelevant and the petitioner/plaintiff has failed to explain how the said document would be relevant in relation to the prayer sought in the suit, that too, when the petitioner is not a party to the said agreement.
There is no merit in the writ petition and accordingly, the writ petition stands rejected.
Sd/-
JUDGE MPK CT:bms List No.: 1 Sl No.: 39