Karnataka High Court
Kennametal Widia India Ltd vs Late Gurusiddappa on 19 December, 2023
Author: S.G.Pandit
Bench: S.G.Pandit
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR.JUSTICE S.G.PANDIT
WRIT PETITION No.23123/2023 (GM-CPC)
BETWEEN:
KENNAMETAL - WIDIA INDIA LTD.,
CURRENTLY KNOWN AS KENNAMETAL INDIA LTD.,
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT, 1956,
HAVING ITS REGISTERED OFFICE AT:
TUMKUR ROAD, 10TH MILE,
BAGALAGUNTE,
BANGALORE-560 073,
REP. BY ITS GENERAL MANAGER-LEGAL
AND COMPANY SECRETARY,
MR. NAVEEN CHANDRA PRAKASH.
...PETITIONER
(BY SMT. MADHU MURTHY G.K., ADV. FOR
SMT. SHILPA SHAH, ADV.)
AND:
1. LATE GURUSIDDAPPA
SINCE DEAD BY HIS LRS.,
1(a). SMT JAYALAKSHMAMMA
W/O. LATE GURUSIDDAPPA,
AGED ABOUT 71 YEARS,
1(b). LATE B. G. PRAKASHA
SINCE DEAD BY HIS LRS.,
2
1(b)(i) SMT. G. V. SOWBHAGYA,
W/O. LATE B. G. PRAKASH,
AGED ABOUT 46 YEARS,
1(b)(ii). KUMARI VARUNI PRAKASH
D/O. LATE B. G. PRAKASH,
AGED ABOUT 21 YEARS,
1(b)(iii). SRI. P. CHINTHAN
S/O. LATE B. G. PRAKASH,
AGED ABOUT 18 YEARS,
RESPONDENTS NO.1(B)(I) TO 1(B)(III) ARE
RESIDING AT VIJETHA,
8TH CROSS, SOMESHWARAPURAM,
TUMKUR TOWN,
TUMKUR-572 102.
1(c). SRI. B. G. ANANTHARAJU
S/O. LATE GURUSIDDAPPA,
AGED ABOUT 38 YEARS,
1(d). SRI. B. G. NATARAJU
S/O. LATE GURUSIDDAPPA,
AGED ABOUT 33 YEARS,
1(e). SMT. B. G. PUSHPALATHA
D/O. LATE GURUSIDDAPPA,
AGED ABOUT 40 YEARS,
RESIDING AT NO. 265,
JAYACHAMARAJENDRA ROAD,
VIJAYAPURA,
DEVANAHALLI TALUK,
BANGALORE RURAL DISTRICT-562 135.
1(f). SMT. B. G. BHAGYAMMA
@ B. G. BHAGYAVATHI
D/O. LATE GURUSIDDAPPA,
3
AGED ABOUT 36 YEARS,
RESIDING AT HAROHALLI VILLAGE,
DEVANAHALLI TALUK,
BANGALORE RURAL DISTRICT-562 135.
1(g). KUMARI. B. G. AMBIKA
D/O. LATE GURUSIDDAPPA,
AGED ABOUT 28 YEARS,
1(h). SMT. B. G. RADHAMMA
@ B. G. RADHA @ B. G. RADHAMANI
D/O. LATE GURUSIDDAPPA,
SINCE DEAD BY HER LRS.,
1(h)(i). KUMARI BINDU. R,
D/O. LATE B. M. RAJANNA,
AGED ABOUT 24 YEARS,
1(h)(ii). KUMARI ARPITHA. R
D/O. LATE B. M. RAJANNA,
AGED ABOUT 22 YEARS,
1(h)(iii). KUMARI. ANUSHA. R
D/O. LATE B. M. RAJANNA,
AGED ABOUT 19 YEARS,
RESPONDENTS NO.1(A), 1(C), 1(D),
1(G), 1(H)(I) TO 1(H)(III) ARE
R/AT NO.349, 4TH CROSS,
BAGALAGUNTE,
BANGALORE-560 073.
2. SRI. M. KESHAVRAO
S/O. N. RAMADASAPPA,
AGED ABOUT 86 YEARS,
RESIDING AT MANIPAL VILLAGE,
VATADAHOSAHALLI POST,
GOWRIBIDANUR TALUK,
4
KOLAR DISTRICT-561 208.
3. SRI. H. NARASIMHAIAH
S/O. LATE HANUMANTHAPPA,
AGED ABOUT 66 YEARS,
R/AT NO.693, 9TH A CROSS,
WEST OF CHORD ROAD,
II STAGE, BANGALORE-560 086.
4. KARNATAKA POWER TRANSMISSION
CORPORATION LTD.,
BESCOM, K.R. CIRCLE,
BANGALORE-560 001,
REP. BY ITS MANAGING DIRECTOR.
...RESPONDENTS
(BY SRI. SUNIL S RAO, ADV. FOR R1(a) TO R1(h)
SRI H.V. DEVARAJU, ADV. FOR R4
R2 & R3 - SERVICE OF NOTICE IS D/W V.C.O.
DT:16.11.2023)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DATED 11TH SEPTEMBER 2023 AT ANNEXURE-A
PASSED BY THE XI ADDL. CITY CIVIL AND SESSIONS JUDGE
AT BANGALORE (CCH 8) IN O.S.786/2007; ISSUE
DIRECTION TO THE XI ADDL. CITY CIVIL AND SESSIONS
JUDGE AT BANGALORE (CCH 8) IN O.S.786/2007 TO MARK
THE PHOTOCOPY OF THE GPA DATED 25TH JANUARY 1996
AND ISSUE DIRECTION XI ADDL. CITY CIVIL AND SESSIONS
JUDGE AT BANGALORE (CCH 8) TO DISPOSE OF
O.S.786/2007 AS EXPEDITIOUSLY AS POSSIBLE.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED ON 23/11/2023 COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:
5
ORDER
The petitioner/defendant No.1 in O.S.No.786/2007 on the file of the XI Additional City Civil and Sessions Judge at Bangalore is before this Court, aggrieved by order dated 11.09.2023 rejecting marking of Xerox copy of General Power of Attorney (for short "GPA") dated 25.01.1996 as inadmissible in evidence.
2. Heard learned counsel Smt.Madhu Murhty G.K., for Smt. Shilpa Shah, learned counsel for petitioner/defendant No.1 and Sri.Sunil Rao, learned counsel for Respondent No.4. Perused the writ petition papers.
3. Learned counsel for the petitioner would submit that the suit of the respondents/plaintiffs is one for declaration that plaintiffs are the absolute owners in possession of the suit schedule property; to declare that GPA dated 25.01.1996 does not bind the right, title and 6 interest over the plaintiffs as the same is a forged and fabricated document; to declare that the sale deed dated 17.12.2004 does not bind the plaintiffs and for injunction in respect of the suit schedule property. It is submitted that during the course of evidence of D.W.1, the petitioner/first defendant produced Xerox copy of the GPA and sought permission to mark the document as secondary evidence. The trial Court rejected the request of the petitioner/first defendant on the ground that factual foundation for secondary evidence is not laid and no effort is shown to get the original of GPA from defendant No.3.
4. Learned counsel for the petitioner/first defendant would contend that the sale deed under which, petitioner/defendant No.1 acquired the suit schedule property is executed on the basis of GPA executed by the petitioner's father in favour of defendant No.3. It is submitted that the original sale deed is placed on record 7 as Ex.D7. Defendant No.3 though served remained absent. Learned counsel for the petitioner would submit that GPA in question is Xerox copy and it is submitted that the original of the said document has been misplaced. It is also submitted that attempts made for tracing original document have not yielded any result. The first defendant is unable to trace original GPA and produce before the Court. Further, learned counsel would submit that Xerox copy of the GPA was produced along with written statement. It is further submitted that without GPA, sale deed could not have been registered and the same itself indicates that it is executed through GPA. Learned counsel for the petitioner/first defendant would submit that the original plaintiff i.e., executants of GPA died in the year 2007 and subsequently, the respondents/plaintiffs have amended the plaint to include prayer to declare that GPA is fabricated one. Learned counsel placing reliance on 8 Sections 63 and 65 of the Indian Evidence Act, 1872 (for short "1872 Act") would submit that when it is the case of the petitioner/first defendant that the original has been destroyed or lost, the trial Court ought to have permitted production and marking of the Xerox copy of GPA, subject to proof. In that regard, learned counsel would place reliance on the decision of a Co-ordinate Bench of this Court in W.P.No.44063/2004 decided on 29.09.2005 (Gafarsab V/S Ameer Ahamed). Further, learned counsel would submit that if a witness during the course of his evidence sets out reason for non-production of primary evidence, he could seek permission to adduce secondary evidence, the same shall be permitted subject to certain conditions. As the petitioner/defendant No.1 has laid foundation saying that the original is misplaced, the trial Court ought to have allowed marking of Xerox copy of GPA subject to 9 proof. Thus, learned counsel would pray for allowing the writ petition.
5. Per contra, learned counsel Sri. Sunil Rao for respondent would support the order passed by the trial Court and submits that when the execution of power of attorney itself is disputed, the trial Court is justified in rejecting petitioner's request to mark Xerox copy of the GPA. Further, learned counsel would submit that no foundation is laid with regard to marking of Xerox copy of GPA. Further, learned counsel referring to Section 63 of 1872 Act would submit that the Xerox copy intended to be marked by petitioner/first defendant is not secondary evidence in terms of Section 63 and it would not fall in any one of the provisions in Section 63(1) to 63(5). Further, learned counsel would submit that if Xerox copy is not secondary evidence in terms of Section 63, marking and accepting the same as secondary evidence under Section 65 of the 1872 Act 10 would not arise. Further, learned counsel would submit that GPA is not sufficiently stamped and it is not registered. Thus, learned counsel would pray 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 no ground is made out to interfere with the impugned order. Moreover, 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 suit is one for declaration of title as well as to declare that GPA on 25.01.1996 and sale deed dated 17.12.2004 are not binding on the plaintiffs. It is the case of the petitioner/defendant No.1 that plaintiff's father had executed GPA in favour of defendant No.3 and defendant No.3 had executed sale deed in respect 11 of the suit schedule property in favour of petitioner/defendant No.1 on the basis of GPA. Xerox copy of the GPA is placed on record along with memo dated 13.10.2023. A perusal of the Xerox of the GPA it is seen that the father of plaintiff Sri. Gurusiddappa executed power of attorney in favour of one H. Narasimhaiah/defendant No.3 who executed sale deed in respect of the suit schedule property in favour of the petitioner/defendant No.1.
8. Section 63 of the Evidence Act reads as follows:
"63. Secondary evidence. -- Secondary evidence means and includes-
(1) certified copies given under the provisions hereinafter contained;
(2) copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;
(3) copies made from or compared with the original;12
(4) counterparts of documents as against the parties who did not execute them; (5) oral accounts of the contents of a document given by some person who has himself seen it."
In terms of the above provision, Xerox copy would not fall under any one of secondary evidence as stated in Section 63 of 1872 Act as it is neither a certified copy nor a copy of original compared with such copy. As it is not a secondary evidence in terms of Section 63 of 1872 Act, the same cannot be permitted to be marked on the ground that original has been destroyed or lost. In fact, Xerox copy is not authenticated by foundational evidence that the same is true copy of the original.
9. The Hon'ble Apex Court in the case of H.SIDDIQUI (dead) BY L.Rs. v/s A.RAMALINGAM reported in AIR 2011 SC 1492, while considering provisions under Section 65 of 1872 Act, at paragraphs 10, 11 and 12 has held as follows:
13"10. Provisions of Section 65 of the Act 1872 provide for permitting the parties to adduce secondary evidence. However, such a course is subject to a large number of limitations. In a case where original documents are not produced at any time, nor, any factual foundation has been led for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law. The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. (Vide: The Roman Catholilc Mission & Anr. v. The State of Madras & Anr., AIR 1966 SC 1457; State of Rajasthan & Ors. v. Khemraj & Ors., AIR 2000 SC 1759; Life Insurance Corporation of India & Anr. 14 v. Ram Pal Singh Bisen, (2010) 4 SCC 491; and M. Chandra v. M. Thangamuthu & Anr., (2010) 9 SCC 712).
11. The Trial Court decreed the suit observing that as the parties had deposed that the original power of attorney was not in their possession, question of laying any further factual foundation could not arise. Further, the Trial Court took note of the fact that the respondent herein has specifically denied execution of power of attorney authorising his brother R. Viswanathan to alienate the suit property, but brushed aside the same observing that it was not necessary for the appellant/plaintiff to call upon the defendant to produce the original power of attorney on the ground that the photocopy of the power of attorney was shown to the respondent herein in his cross-examination and he had admitted his signature. Thus, it could be inferred that it is the copy of the power of attorney executed by the respondent in favour of his brother (R. Viswanathan, second defendant in the suit) and therefore, there was a specific admission by the respondent having executed such document. So it was evident that the respondent had authorised 15 the second defendant to alienate the suit property.
12. In our humble opinion, the Trial Court could not proceed in such an unwarranted manner for the reason that the respondent had merely admitted his signature on the photocopy of the power of attorney and did not admit the contents thereof. More so, the court should have borne in mind that admissibility of a document or contents thereof may not necessary lead to drawing any inference unless the contents thereof have some probative value."
10. Learned counsel for the petitioner had placed reliance on the decision of a co-ordinate Bench of this Court in GAFARSAB case(supra). In GAFARSAB case, the co-ordinate Bench of this Court has made it clear that, if the Court is satisfied from the evidence, though a case is made out for production of secondary evidence it can permit the party to adduce secondary evidence, subject to Sections 63 and 65 of 1872 Act. This Court was of the opinion that if the party seeking permission 16 to produce secondary evidence satisfies Sections 63 and 65 of 1872 Act, only then, the Court could permit marking Xerox copy as secondary evidence.
11. In the instant case, the petitioner has failed to satisfy Section 63 of 1872 Act. Hence, I do not find any reason to interfere with the impugned order passed by the trial Court. The other contentions of the respondents that is GPA is not sufficiently stamped or not registered need not be gone into at this stage of the proceedings, since the document is not permitted to be marked.
Accordingly, the writ petition stands rejected.
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