Karnataka High Court
M/S Hajee Ebrahim Sait Wakf vs M/S Indian Wood And Industries on 13 March, 2024
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2024:KHC:10310
WP No. 4266 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 4266 OF 2024 (GM-CPC)
BETWEEN:
1. M/S HAJEE EBRAHIM SAIT WAKF
A PRIVATE WAKF HAVING ITS OFFICE AT NO.47
2ND FLOOR, GREAMS ROAD
THOUSAND LIGHTS
CHENNAI-600006
REPRESENTED BY IT MUTHAVALLI
MR M FUAAD MUSVEE
S/O LATE EBRAHIM MUSVEE
...PETITIONER
(BY SRI. VARUN JAYKUMAR PATIL., ADVOCATE)
AND:
1. M/S INDIAN WOOD AND INDUSTRIES
REGISTERED PARTNERSHIP FIRM
HAVING ITS REGISTERED OFFICE AT WOOD HOUSE
Digitally NO.526, 2ND FLOOR, 5TH BLOCK
signed by V
MANJUSHA RANKA APARTMENTS
BAI LALBAGH ROAD
Location: BENGALURU-560027
High Court of REPRESENTED BY ITS PARTNER KURIAN THOMAS
Karnataka
...RESPONDENT
(BY SRI. AJESH KUMAR S., ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER
DTD 22.01.2024 ON INTERIM APPLICATION NO.16 FILED UNDER
ORDER XVI RULE 6 R/W SEC 151 OF CPC, IN OS NO. 9403/2014
PASSED BY THE XXXI ADDL. CITY CIVIL AND SESSIONS JUDGE,
BENGALURU IN CCH-14 (ANNEXURE-A) AND ETC.
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NC: 2024:KHC:10310
WP No. 4266 of 2024
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
This petition by the defendant in O.S.No.9403/2014 is directed against the impugned order dated 22.01.2024 passed by XXXI Additional City Civil and Sessions Judge, Bengaluru, [for short, 'the trial Court'], whereby the application - I.A.No.XVI filed by the petitioner - defendant under Order XVI Rule 6 CPC for issuance of summons to a non-party to produce documents was rejected by the trial Court.
2. Heard learned counsel for the petitioner and learned counsel for the respondent and perused the material on record.
3. A perusal of the material on record will indicate that the respondent / plaintiff instituted the aforesaid suit against the petitioner / defendant for specific performance and other reliefs in relation to the suit schedule immovable property and the said suit is being contested by the petitioner - defendant. After settlement of issues, the respondent examined PW-1 and was partly cross- examined by the petitioner. At that stage, the petitioner filed the instant application seeking issuance of witness summons to the following persons to produce the following documents: -3-
NC: 2024:KHC:10310 WP No. 4266 of 2024 APPLICATION UNDER ORDER 16 RULE 6 READ WITH SECTION 151 OF THE CODE OF CIVIL PROCEDURE, 1908 "That for the reasons stated in the accompanying Affidavit, this Hon'ble Court may be pleased to direct.
M/S EMBASSY PROPERTY DEVELOPMENTS PVT. LTD., A Private Limited Company having its Principal Place of Business at:
I Floor, Embassy Point #150 Infantry Road Bangalore-560001.
Represented by its Director Email id: [email protected]
1. Agreement of sale dated 10.02.2001 executed between K. Thomas and Kurian Thomas of India Woods & Industries and Mr. P. Dayananda Pai and;
2. Agreement of Assignment dated 12.11.2007 executed between Mr.P Dayananda Pai and M/s Dynasty Developers Private Limited now known as M/s Embassy Property Developments Pvt. Ltd in the interests of justice and equity."
4. The said application having been opposed by the respondent - plaintiff, the trial Court proceeded to pass the impugned order, rejecting the application, aggrieved by which, the petitioner is before this Court by way of a present petition. -4-
NC: 2024:KHC:10310 WP No. 4266 of 2024
5. A perusal of the impugned order will indicate that the trial Court had reframed the entire issue with regard to existence and relevance of the documents without appreciating and the said issue would necessarily have to be decided after the notice / summons is issued to the proposed person and upon receiving the reply / response from the persons and not at the stage of considering an application for issuance of summons under Order XVI Rule 6 CPC. It is also relevant to state that it is the specific contention of the petitioner that the respondent had executed a sale agreement dated 10.02.2001 in relation to the suit schedule property in favour of Mr.P.Dayananda Pai, who in turn had executed deed of assignment dated 12.11.2007 in favour of the proposed person, who had custody and possession of the said documents which are sought to be summoned. In view of the specific assertion on the part of the petitioner that the aforesaid documents are in custody and possession of the aforesaid person, the trial Court clearly erred in refusing to permit the petitioner to summon the said document from the said person even without issuing notice to the proposed person. -5-
NC: 2024:KHC:10310 WP No. 4266 of 2024
6. Under these circumstances, I am of the view that the impugned order passed by the trial Court rejecting I.A.No.XVI deserves to be set aside and the said application deserves to be allowed.
7. In the result, the following;
ORDER
(i) Petition is hereby allowed.
(ii) Impugned order dated 22.01.2024 vide Annexure-A is hereby set-aside.
(iii) I.A.No.XVI filed by the petitioner - defendant stands allowed.
(iv) The trial Court is directed to issue summons to the proposed person sought for in I.A.No.16 on the next date of hearing of the suit which is currently posted on 28.03.2024.
(v) It is made clear that pending receipt of documents, if available, from the proposed person, the petitioner shall continue with further cross examination of PW-1 on all other aspects other than the documents sought for in I.A.No.XVI.
(vi) In the event the proposed person produces the document sought for in I.A.No.XVI, PW-1 shall be recalled by the trial Court without necessity / -6- NC: 2024:KHC:10310 WP No. 4266 of 2024 requirement of a formal application and the petitioner would be entitled to cross-examine PW-1 on these aforesaid two documents sought for in I.A.No.XVI also.
(vii) It is needless to state that in the event, the proposed person does not produce the aforesaid two documents, the petitioner cross-examining PW-1 with reference to the said document would not arise.
(viii) All rival contentions in relation to the said documents sought to be examined including admissibility, proof, relevancy, probative value etc., are kept open to be decided by the trial Court and no opinion is expressed on the same.
(ix) Pending interlocutory applications, if any, stand disposed of.
SD/-
JUDGE VMB List No.: 1 Sl No.: 37