Karnataka High Court
Mr. Emmanuel John vs M/S Sports Outreach India on 3 January, 2017
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JANUARY 2017
BEFORE
THE HON'BLE Mrs.JUSTICE B.V.NAGARATHNA
WRIT PETITION NO.6706/2016 (GM-CPC)
BETWEEN:
MR. EMMANUEL JOHN
S/O C.S. JHON
AGED ABOUT 44 YEARS,
R/AT 100, 34TH 'B' CROSS
16TH MAIN ROAD,
4TH T-BLOCK, JAYANAGAR,
BANGALORE - 41. ... PETITIONER
(By Sri.RAVISHANKAR.S, ADV.)
AND:
1. M/S SPORTS OUTREACH INDIA
A REGISTERED PRIVATE TRUST
REPRESENTED BY ITS
DIRECTOR/ MANAGING TRUSTEE
MR. ROBIN PAUL
S/O BIMAL BASU
AGED ABOUT 63 YEARS,
NO.80/2A,
KOTHANUR DINNE ROAD,
SOS POST,
BANNERUGHATTA ROAD,
BANGALORE - 76
2. MR. ROBIN PAUL
S/O BIMAL BASU
AGED ABOUT 63 YEARS,
2
NO.80/2A,
KOTHANUR DINNE ROAD,
SOS POST,
BANNERUGHATTA ROAD,
BANGALORE - 76. ... RESPONDENTS
(By Sri. JANARDHANA.G, ADV. FOR R-1 & 2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH
ANNEXURE-A DTD:3.1.2015 PASSED BY THE HON'BLE
XXXI ADDL. CITY CIVIL AND SESSIONS JUDGE (CCH-14)
BANGALORE ON IA-IV IN O.S.NO.9015/2012 THEREBY BY
DISMISSING THE IA-IV IN O.S NO.9015/2012 BEFORE
HON'BLE XXXI ADDL. CITY CIVIL AND SESSIONS JUDGE
(CCH-14) BANGALORE.
This Writ Petition coming on for Hearing -
Interlocutory Application, this day, the Court made the
following:-
ORDER
Though the matter is listed for considering I.A.I/16, with the consent of learned counsel for both sides, it is heard finally.
2. The petitioner is the defendant in O.S.No.9015/2012 which is pending on the file of the XXXI Addl. City Civil and Sessions Judge, Bengaluru city. The said suit has been filed by the respondents/plaintiffs seeking a direction to the defendant to execute a sale deed in favour of the 1st plaintiff in respect of the suit schedule property 3 and for a consequential relief of permanent injunction. The suit was set down for recording of evidence. Plaintiff No.2 had deposed as P.W.1. At that stage, the plaintiff filed an application under Order XI Rule 14 read with Section 141 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC' for brevity) seeking a direction to the defendant to produce certain documents. By the impugned order dated 03.01.2015, that application has been allowed. Being aggrieved by that order, the defendant in the suit has preferred this writ petition.
3. I have heard learned counsel for the petitioner and learned counsel for respondents and perused the material on record.
4. It is noted that the impugned order is passed on an application filed under Order XI Rule 14 read with Section 151 of the CPC. However, the purpose of filing the said application under the said provision was for getting certain original documents, i.e., memorandum of understanding dated 06.01.2000, G.P.A dated 06.01.2000 and Indemnity 4 Bond of the same date marked in evidence. According to the respondent/plaintiffs, the originals of the said documents are in the custody and possession of the defendant. It is their further case that the plaintiffs were in custody of the said documents, but they were taken back by the defendant and not returned to the plaintiffs. In the circumstances, the plaintiffs are entitled to seek production of the original documents from the custody of the defendant. In that regard, the application was filed. The Trial Court has allowed the said application.
5. Learned counsel for the petitioner contends that when the documents are not in the custody and possession of the petitioner, no such direction could have been issued. As already noted, the object and purpose of filing such an application was to get the said documents marked in evidence as the plaintiffs are relying on the said documents. If the originals are not in the possession and custody of the defendant/petitioner herein, then Indian Evidence Act, 1872 (hereinafter referred to as the 'Act', for the sake of brevity) prescribes the procedure for considering secondary evidence 5 of such documents. Section 65(a) of the Act is relevant in this context. In order to comply with the provisions of Section 65(a), the procedure is contemplated under Section 66 of the Act. Having regard to those sections and keeping in mind the fact that the petitioner contends that the originals are not in his possession and custody and keeping in mind the purpose for which the application is filed by the respondent/plaintiffs, the impugned order could be construed as notice under Section 66 of the Act and not a direction to the petitioner herein to produce the said documents as such. In the circumstances, the petitioner has to respond to the said direction by filing an appropriate pleading before the trial Court after serving a copy thereof to the respondent/plaintiffs. Depending upon the response to be given by the petitioner herein, the trial Court to consider as to whether the respondent/plaintiffs may be permitted to let in secondary evidence with regard to the aforesaid documents, having regard to the parameters of Section 65 of the Act.
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6. In the result, the impugned order is construed as notice under Section 66 of the Act issued to the petitioner herein. The petitioner to respond to the said direction and the trial Court to permit the respondent/plaintiffs to let in secondary evidence keeping in mind the response of the petitioner and having regard to the parameters of Section 65 read with Section 66 of the Act.
7. Writ Petition is disposed of in the aforesaid terms. In view of the disposal of the writ petition, I.A.I/16 would not survive for consideration and it stands disposed.
Sd/-
JUDGE bnv*