Karnataka High Court
Smt. Munira W/O Dastagirsab Pailwan vs Sri. Mahadev Maruteppa Illigera on 28 January, 2022
Author: B.M. Shyam Prasad
Bench: B.M. Shyam Prasad
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 28TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD
WRIT PETITION NO.100326/2022 (GM-CPC)
BETWEEN
1. SMT. MUNIRA, W/O DASTAGIRSAB PAILWAN
AGED BOUT 49 YEARS,
OCC. HOUSEHOLD, R/O. GOKAKA,
TALUK. GOKAK,
DISTRICT. BELAGAVI.
2. SMT. JULEKHA, W/O HUSENSAB NAGARJI
AGED ABOUT 69 YEARS,
OCC. HOUSEHOLD, R/O. GOKAKA,
TALUK. GOKAK, DISTRICT. BELAGAVI.
3. SMT. BIBIJAN, W/O ABDULGANI TAHASILDAR
AGED ABOUT 57 YEARS,
OCC. HOUSEHOLD,
R/O. GOKAKA, TALUK. GOKAK,
DISTRICT. BELAGAVI.
4. SMT. SHAMSHAD, W/O MOHAMMAD ALI MULLA
AGE. 54 YEARS, OCC. HOUSEHOLD,
R/O. GOKAKA, TALUK. GOKAK,
DISTRICT. BELAGAVI.
5. SRI. RAHUL, S/O PANDURANG GEVAADE
AGED ABOUT 44 YEARS,
OCC. PRIVATE JOB, R/O. GOKAKA,
TALUK. GOKAK, DISTRICT. BELAGAVI.
...PETITIONERS
(BY SRI.T.M.NADAF, ADVOCATE)
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AND
1. SRI. MAHADEV MARUTEPPA ILLIGERA
AGED ABOUT 56 YEARS,
OCC. RMP DOCTOR,
R/O. MARKANDAYA NAGAR,
TALUK. GOKAK, DISTRICT. BELAGAVI.
2. THE COMMISSIONER
CITY MUNICIPAL COUNCIL,
GOKAK, TALUK. GOKAK,
DISTRICT. BELAGAVI.
3. SRI. MAHADEV, S/O MARUTI MUNAVALLI
AGED ABOUT 44 YEARS, OCC. MASON,
R/O. GOKAKA, TALUK. GOKAK,
DISTRICT. BELAGAVI.
4. SMT. PREMA, W/O DUNDAPPA SARVI
AGED ABOUT 44 YEARS, OCC. HOUSEHOLD,
R/O. GOKAKA, TALUK. GOKAK,
DISTRICT. BELAGAVI.
...RESPONDENTS
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
& 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL
FOR THE RECORDS FROM THE COURT OF I ADDITIONAL
CIVIL JUDGE AND JMFC, GOKAK, IN O.S. NO.28/2013
AND QUASH THE ORDER DATED 05.01.2022, PASSED ON
I.A.NO.6, BY THE I ADDITIONAL CIVIL JUDGE AND JMFC,
GOKAK, IN O.S.NO.280/2013, VIDE ANNEXURE-P.
THIS WRIT PETITION COMING ON FOR ORDERS,
THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER
The petitioners are the plaintiffs in O.S. No.280/2013 on the file of the Additional Civil Judge and JMFC, Gokak (for short, "the civil Court"). The petitioners have impugned the civil Court's order dated 05.01.2022, and the civil Court by this impugned order has rejected the petitioners' application (I.A. No.6) under Order XVI Rule 6 read with Section 151 of Code of Civil Procedure, 1908. The petitioners have filed this application for a direction to the Commissioner, City Municipal Council, Gokak to produce the original of the layout plan approval in Sy. No.221/1A/1A/1A of Gokak. The civil Court has rejected the petitioners' application opining that a correspondence by the second respondent shows that it does not have a copy of the layout plan and if the second respondent does not have a copy of the layout plan, the petitioners' application cannot be allowed.
2. Sri.T.M.Nadaf, the learned counsel for the petitioners, submits that the principal question for 4 decision in the suit is whether the first respondent is putting up construction in a road as earmarked in the approved layout plan. The Town Planning Authority has already issued an endorsement stating that after the approval of the layout plan, the same has been forwarded to the City Municipal Council, Gokak - the second respondent and this respondent has also issued a certified copy of the layout plan earlier to the petitioners but they have misplaced the certified copy issued. The second respondent, overlooking its own act of having earlier issued certified copy, is contending that the original of the layout plan is not available. The learned counsel emphasizes that given the provisions of Sections 65(e) and 65(f) of the Indian Evidence Act, 1872 (for short, "the Act") the petitioners must necessarily produce the certified copies and this aspect has not been considered by the civil Court.
3. The petitioners contend that they have retained with themselves a copy of the layout plan issued by the second respondent but have misplaced 5 the certified copy. On the other hand, the second respondent is categorical in response, as observed by the civil Court, that it does not have the custody of the original layout plan. If the second respondent is categorical in its response stating that it does not have the original of the layout plan and the petitioners have retained a copy of the certified copy of the layout plan earlier issued, the second respondent cannot be insisted upon to produce the documents.
4. However, the petitioners cannot be without remedy and therefore, must be at liberty to take advantage of this statement by the second respondent, and invoke the provisions under Section 65(c) of the Act to produce a photocopy of the certified copy retained by them as secondary evidence inasmuch as the provisions of Section 65(c) of the Act provide that the secondary evidence can be introduced when an original is destroyed or lost and the party offering evidence of its content, for no fault of his own default or neglect, cannot produce the same within a reasonable time. 6
Therefore, the petition stands disposed with such liberty to the petitioners but subject to all just exceptions in law.
Sd/-
JUDGE RH