Karnataka High Court
Sri Devaraj S/O Muniswamy vs The Hon'Ble Registrar on 15 September, 2020
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15th DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
WRIT PETITION NO. 9111 OF 2020 (GM-RES)
Between:
Sri Devaraj S/o Muniswamy
Aged about 60 years
No.3976, III Main Road
19th Cross Banashankari 3rd Stage,
Bengaluru-560 070.s
...Petitioner
(By Sri Raghupathy T N , Advocate)
And:
The Hon'ble Registrar
City Civil Court
Bengaluru.
...Respondent
(By Sri. S. Sriranga, Advocate)
This writ petition is filed under Articles 226 and 227 of the
Constitution of India, praying to declare that the rejection of
copy application dated 12.06.2020 as per Annexure-J is illegal;
direct the respondent herein to forthwith issue certified copy of
the final decree drawn by the Hon'ble City Civil Court (CCH-7) on
the stamp paper allegedly submitted by Smt. Rajamma in
respect of preliminary decree dated 21.01.2002 passed in O.S
No.7938 of 1996 before the Hon'ble CCH-7.
2
In this petition arguments being heard, reserved for
orders, coming on for pronouncement this day, the Court made
the following:
ORDER
The petitioner has challenged the rejection of copy application dated 12.06.2020 filed by him in O.S No.7938/1996 disposed of on 21.12.2002 on the file of City Civil and Sessions Judge, Bengaluru.
2. The factual matrix of the case as averred by the petitioner in the writ petition are that, petitioner herein is the agreement holder in respect of immovable property executed by Smt. Rajamma (dead) wife of K.G. Muddaiah; K.M Prasad; and Smt. Lakshmamma. Petitioner avers that he paid entire sale consideration amount to the executants of the sale agreement dated 07.10.1996. In the meanwhile, one Smt. Indira has filed partition suit in O.S No.7938/1996 on the file of City Civil Judge, Bengaluru and sought for a share in the suit schedule property. In the said suit, petitioner herein was arraigned as defendant No.8. The said suit i.e. 7938/1996, came to be disposed of on 21.12.2002 by virtue of a compromise petition 3 filed by the parties to the suit and accordingly, preliminary decree was passed on the basis of said compromise petition. It is to be noted that, suit against defendant No.8 (petitioner herein) was dismissed as not pressed by order dated 21.12.2002. Smt. Rajamma (defendant No.1) in the said suit died on 30.01.2003. It is also stated that, after passing of preliminary decree, the petitioner herein has filed O.S 6345/2005 against Sri K.M. Prasad and others for seeking relief of specific performance of agreement of sale dated 07.10.1996 and in the said suit, the petitioner herein made an application under Order XVI Rule 6 read with Section 151 of CPC and sought for production of entire records of O.S.7938/1996. The said application in IA. 52 in O.S 6345/2005 came to be dismissed on 08.06.2020. In the meanwhile, after preliminary decree was passed in O.S 7938/1996 vide order dated 21.12.2002, all the parties to the suit have filed stamp papers before trial Court for rendering final decree in respect of their respective shares. The petitioner would submit that one of them have filed stamp paper in the name of Smt. Rajamma who died on 30.01.2003. The said stamp paper appears to have been 4 obtained on 04.02.2003. The final decree copy has remained in the file as on the date and accordingly, the petitioner has made an application in O.S 7938/1996 and sought for certain certified copies of the documents. The Civil Court had rejected the copy application on 12.06.2020 in respect of final decree passed in favour of said Smt. Rajamma in O.S 7938/1996. Being aggrieved by the rejection of the said copy application vide Annexure-J, petitioner has presented instant writ petition before this Court.
3. The respondent has entered appearance and filed statement of objections.
4. I have heard Sri T.N. Raghupathy, learned counsel appearing for the petitioner and Shri S. Sriranga, learned counsel appearing for the respondent. Shri T.N. Raghupathy, learned counsel for the petitioner, submitted that the certified copy of the final decree proceedings engrossed on the stamp paper is very much required for him to establish the conduct of the defendants in the suit filed by him in O.S 6345/2005. The suit filed by him is seeking relief of specific performance of 5 agreement to sell dated 07.10.1996. He further submitted that, the petitioner was arraigned as defendant No.8 in O.S 7938/1996 filed by one Smt. Indira against Smt. Rajamma and others and the suit is one, which filed for partition and separate possession. However, he contended that the parties to the aforesaid suit have compromised each other and accordingly, the same was disposed of in terms of the compromise petition filed under Order XXIII Rule 3 of CPC on 21.12.2002 and on the very same day, the suit against defendant No.8 (petitioner herein) came to be dismissed as not pressed and in that view of the matter, he made an application in O.S 6345/2005 (IA No.52) and sought for production of the entire records of O.S 7938/1996. The said application came to be dismissed on 08.06.2020 Under these circumstances, learned counsel appearing for the petitioner submitted that rejection of the copy application made by him in O.S 7938/1996 is bad in law. It is his further contention that the said rejection of the copy application by the respondent is contrary to law declared by this Court in the case of J.R.R. NAIDU Vs. CITY CIVIL COURT reported in ILR 1992 KAR 2700 and as such, he prays for allowing the writ petition. 6
5. Per contra, Sri S. Sriranga, learned counsel appearing for the respondent submitted that O.S 7938/1996 was filed for partition and separate possession by one Smt. Indira against Smt. Rajamma and others. In the said suit, the petitioner herein was arrayed as defendant No.8. Since defendant No.8 was deleted by order dated 21.12.2002, the parties to the suit have entered into compromise petition and the suit was disposed of, in terms of the compromise petition and accordingly, preliminary decree came to be passed. Pursuant to the same, Registry was directed to draw the final decree in terms of the compromise petition after collecting requisite fee from the parties to the compromise petition. He further submitted that pursuant to drawing up of decree, parties to the compromise petition have furnished the stamp duty of the requisite value as per Section 39 of the Karnataka Stamp Act, 1957 for drawing up of final decree in respect of their shares allotted to them and thereafter the same was to be registered. The learned counsel for the respondent adverting to the facts of the case has submitted that final decree for partition has no existence as a decree, unless it is engrossed on stamp 7 paper and duly registered. In order to constitute executable decree, a final decree is required to be drawn and therefore, the same has to be engrossed on stamp paper of requisite value and duly registered and these facts constitute final decree crystallizing the rights of the parties in terms of the preliminary decree and in that view of the matter, he submitted that the contention raised by the petitioner is without any basis and writ petition is liable to be dismissed.
6. Sri. S. Sriranga, learned counsel for respondent further invited the attention of the Court to the various provisions under Chapter XXIII of The Karnataka Civil Rules of Practice, 1967 (hereinafter referred to as 'Rules') and submitted that the rejection of copy application by the respondent is in accordance with the Rules as provided therein as this respondent has supplied all the certified copy of the documents sought for by the petitioner except the certified copy of final decree engrossed on the stamp paper. He vehemently submitted that the petitioner herein has not been allotted any share in O.S.7938/1996 and so also, the decree is not registered in 8 respect of the share of the late Rajamma, and in that view of the matter, he justified the action of rejection of the copy application by respondent as just and proper and accordingly, he sought for dismissal of the writ petition.
7. I have considered the submission made by the learned counsel appearing for the parties and perused entire writ petition.
8. The undisputed facts of the case are that Smt. Indira has filed suit for partition and separate possession in O.S 7938/1996 on the file of City Civil Judge, Bengaluru which came to be disposed of on 21.12.2002 in terms of the compromise petition filed by the parties and accordingly, the preliminary decree was passed. In the said suit, petitioner herein was arraigned as defendant No.8, however, for the reasons best known to defendant No.8 (petitioner herein) was deleted from the cause title and the trial Court passed the following order on 21.12.2000 which reads as under.
"Case called out in the open court. Sri B.C.Seetharama Rao filed vakalath for 7th defendant with an application under order IX Rule 9 VII CPC to set aside the exparte order passed against D7. The plaintiff and other defendants have no objection for allowing the above IA. Hence the above IA is allowed. Exparte order passed against D-7 is set aside for the reasons stated in the affidavit.
Counsel for the plaintiff filed a memo stating that the suit may be dismissed against D-8. The counsel for D-8 Sri. MSAK and D-8 are present before the court. It is submitted that suit may be dismissed against D-8. Further the Court on being questioned, both D-8 and his counsel Sri. MSAK submitted no objection for dismissing the suit against D-8. Hence suit against D-8 is dismissed as not pressed.
Compromise petition under Order XXIII Rule 3 of Civil Procedure Code filed. Plaintiff and defendants 1 to 7 are present before the court. The terms and conditions of compromise petition read over to plaintiff and defendants 1 to 7. Further on being questioned they submitted that they have entered into compromise in terms of the compromise petition at their free-will. Hence court is satisfied that the parties to the suit voluntarily entered into compromise. The proposed compromise is legal and admissible in law and in view of the parties admitting the contents. Suit is decreed in terms of the compromise petition.
Draw up final decree accordingly by receiving necessary stamp duty."
(Emphasis supplied by me)
9. In the meanwhile, defendant No.1 (Smt. Rajamma) in O.S 7938/96 died on 30.01.2003. It is also pertinent to 10 mention here that the petitioner herein has filed suit for specific performance against said Rajamma and others in O.S 6345/2005, seeking relief of specific performance of the agreement to sell dated 07.10.1996. It is also not disputed by the parties that the petitioner herein has made an application in IA 52 in O.S 6345/2005 and sought to summon the entire records of O.S 7938/1996 and the said application came to be dismissed by the trial Court by order dated 08.06.2020. The said order passed by the trial Court has reached finality, as the petitioner herein has not filed any appeal nor has challenged the said order before this Court. Rejection of IA.52 by the trial Court is on judicial side rejecting the prayer made by the petitioner herein for summoning the entire record of O.S 6345/2005. However, the petitioner filed application seeking certified copies of certain documents in O.S 7938/1996 and the said copy application came to be rejected by the trial Court on 12.06.2020 in respect of seeking certified copy of final decree made in favour of said Rajamma in O.S 7938/1996. 11
10. The principal grievance of the petitioner is about the rejection of his copy application dated 12.06.2020 vide Annexure-J by the Registrar of City Civil Court, Bengaluru. The Registrar of City Civil Court released all the certified copies of the petitioner except the final decree in O.S 7938/1996 in respect of defendant No.1 therein i.e. Smt. Rajamma in the said suit as well as final decree proceedings. Rule 232 of Karnataka Rules of Practice 1967, reads as under:
"232. Any person who is not a party to the suit or proceeding, desirous of obtaining copies of documents admitted in evidence, shall make an application, supported by an affidavit specifying the purpose for which such copies are required, and "Court may for sufficient reason shown to its satisfaction order the grant of the same".
(Emphasis supplied by me)
11. The word "may" requires to be read as the Registry is empowered to issue all the certified copies sought for by the parties and so also, withhold certain certified copies at their 12 discretion if the applicant fails to provide sufficient reason to their satisfaction. In the instant case, admittedly, petitioner is not a party in O.S No.7938/1996 filed by Smt. K.M. Indira against Smt. Rajamma and others. It is also not in dispute that the petitioner is not a party in the final decree proceedings. The perusal of order sheet dated 21.01.2002 in O.S.7938/1996 indicates that the petitioner, though was initially arraigned as defendant No.8, however, the said suit came to be dismissed as against defendant No.8 (petitioner herein) and in that view of the matter, the submission made by the learned counsel for the respondent that since there was no allotment of specific share in favour of the petitioner herein in the said partition suit, the petitioner is not entitled for certified copy as sought in Annexure-J, is to be accepted.
12. It is also pertinent to mention herein that the purpose of seeking certified copy of final decree proceedings in O.S 7938/1996 by the petitioner is to explore the conduct of the defendant in his suit in O.S 6345/2005. It is not in dispute that the petitioner filed IA.52 under Order XVI Rule 6 read with 13 Section 151 of CPC seeking for placing entire records of O.S 7938/1996 and the trial Court by its order dated 08.06.2020 has rejected the application and same has reached finality. Since the petitioner has not challenged the said order dated 08.06.2020 before this Court and same has reached finality and in that view of the matter, even on the judicial side the petitioner has suffered an order with regard to the production of the records in O.S 7938/1996 and therefore, the arguments advanced by the learned counsel for the petitioner for allowing the prayer made in the writ petition cannot be accepted.
13. It is well settled principle of law that after final decree proceedings, it has to be engrossed on stamp paper and registered. In the facts and circumstances of the case, the narration made in the statement of objections at para 5 reads as under:
"5. In the present case, Respondent has granted certified copy of the other documents sought by the Petitioner, except the certified copy of the final decree engrossed on a stamp paper. It is pertinent to mention that the Petitioner has not been allotted any share in the said suit. The decree is also not registered. In the circumstances, the Respondent was justified in rejecting the Petitioner's request to issue 14 certified copy of the final decree engrossed on a stamp paper."
14. Perusal of Rule 232 of The Karnataka Rules of Practice, 1967 along with the law declared by the Hon'ble Supreme Court in the case of SIROMANI & ANOTHER Vs. HEMKUMAR AND OTHERS reported in AIR 1968 SC 1299 makes it clear that the final decree for partition has no legal existence as a decree, until it is engrossed on requisite stamp paper and thereafter its registration. In order to constitute the executable decree, a final decree is required to be engrossed on stamp paper and to be duly registered. These acts together constitute a final decree, crystallizing the rights of the parties in terms of the final decree.
15. The Hon'ble Supreme Court, in the case of SHANKAR BALWANT LOKHANDE (DEAD) BY L.Rs v. CHANDRAKANT SHANKAR LOKHANDE AND ANOTHER reported in AIR 1995 SC 1211 has held as follows:
"Therefore, executing court cannot receive the preliminary decree unless final decree is passed as envisaged under Order 20 Rule 18(2). After final decree is 15 passed and a direction is issued topay stamped papers for engrossing final decree thereon and the same is duly engrossed on stamp paper(s), it becomes executable or becomes an instrument duly stamped. Thus, condition precedent is to draw up a final decree and then to engross it on stamped paper(s) of required value. These two acts together constitute final decree, crystallizing the rights of the parties in terms of the preliminary decree."
16. In the instant case, since defendant No.8 (petitioner herein) was deleted from the array of parties and also the petitioner has suffered an order by way of rejection of IA. 52 in O.S 7938/1996, the petitioner is not entitled for relief as sought for in this petition. The petitioner has relied upon the law declared by this Court in the case of J.R.R. NAIDU (supra). The facts of the case in the above decision are distinct from the facts of the case on hand. The party seeking certified copies in the above mentioned decision was party in the proceedings therein. However, in the instant case, the petitioner is neither a party in the preliminary decree nor a party in the final decree proceedings and in that view of the matter, aforesaid judgment relied upon by the petitioner is not applicable to the facts of the present case, as said case deal with the party to the proceedings 16 and accordingly, the contention raised by the learned counsel for the respondent is accepted. Hence, Writ petition is rejected as having no merit. However, dismissal of instant writ petition does not disentitle the petitioner to prove the conduct of the parties in O.S 6345/2005 in a manner known to law and it is always open for him to take necessary steps in the said suit. Hence, the following:
ORDER Writ petition is dismissed.
No orders as to costs.
Sd/-
JUDGE UN