Karnataka High Court
Sri. K P Sadashiva vs Sri. K P Jagadisha on 29 October, 2025
Author: S Vishwajith Shetty
Bench: S Vishwajith Shetty
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NC: 2025:KHC:43942
WP No. 15512 of 2022
C/W WP No. 29901 of 2018
WP No. 30071 of 2018
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF OCTOBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY
WRIT PETITION NO. 15512 OF 2022 (GM-CPC)
C/W
WRIT PETITION NO. 29901 OF 2018 (GM-CPC),
WRIT PETITION NO. 30071 OF 2018 (GM-CPC)
IN WP No. 15512/2022:
BETWEEN:
SRI K.P. JAGADISH
S/O LATE PUTTANNACHAR
PRESENTLY AGED ABOUT 61 YEARS
MINISTRY OF DEFENSE
NO.3/13 GUNATHAVIHAR
DGQA RESIDENTIAL COMPLEX
NEAR MEKRI CIRCLE GANGENAHALLI
BENGALURU - 560 006.
PRESENTLY R/AT NO.B-1-302
SURYASHAKTHI 80 TREES
APARTMENT (NEXT TO GEAR
INTERNATIONAL SCHOOL)
Digitally DODDAKANNALLI ROAD
signed by
NANDINI M S BENGALURU - 560 035.
Location: ...PETITIONER
HIGH COURT
OF (BY SRI S.N. SAMEER, ADV.,)
KARNATAKA
AND:
1. SRI DAKSHINAMURTHY
S/O LATE PUTTASOMACHAR
PRESENTLY, AGED ABOUT 48 YEARS
R/AT NO.6/1, 5 'A' MAIN KATHARIGUPPE
EAST, BANASHANKAI III STAGE
BENGALURU - 560 085.
2. SRI SADSHIVA
S/O LATE PUTTASOMACHAR
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WP No. 15512 of 2022
C/W WP No. 29901 of 2018
WP No. 30071 of 2018
HC-KAR
SINCE DEAD REPRESENTED BY LRS
2a. SMT. JAYASHREE R.S
W/O LATE K.P. SADASHIVA
AGED ABOUT 30 YEARS.
2b. KUM K.S. YAMUNASHREE
D/O K.P. SADASHIVA
AGED ABOUT 12 YEARS
REPRESENTED BY HER MOTHER
AND NATURAL GUARDIAN
SMT. JAYASHREE K.S.
2c. SMT. KAMALAMMA
W/O LATE K.C. PUTTASWAMACHAR
AGED ABOUT 70 YEARS.
APPLICANTS 1 TO 3 ARE ALL
R/AT KIRANELLI VILLAGE
KAMALAPURA POST
RAVANDUR HOBLI
PERIYAPATNA TALUK
MYSORE DISTRICT.
3. SRI POORVACHARI
S/O LATE PUTTASOMACHAR
PRESENTLY AGED ABOUT 44 YEARS.
RESPONDENTS 2 AND 3 ARE
RESIDING AT KIRANALLI VILLAGE
KAMPALAPUR POST
RAVANDUR HOBLI
PERIYAPATNA TALUK - 571 107
MYSORE DISTRICT.
...RESPONDENTS
(BY SRI A. MADHUSUDHANA RAO, ADV.)
THIS WP IS FILED UNDER ARTILCE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO CALL FOR CONNECTED
RECORDS RELATING TO ANNEXURE0K, ORDER DTD 06.07.2022
PASSED ON I.A.NO.10 FILED IN O.S.NO.169/2014 PENDING ON THE
FILE OF ADDITIONAL CIVIL JUDGE AND JMFC, AT PERIYAPATNA AND
ETC.
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NC: 2025:KHC:43942
WP No. 15512 of 2022
C/W WP No. 29901 of 2018
WP No. 30071 of 2018
HC-KAR
IN WP NO. 29901/2018:
BETWEEN:
1. SRI K.P. SADASHIVA
SINCE DEAD, REPRESENTED BY LRS
S/O LATE PUTTASWAMACHAR
AGED ABOUT 42 YEARS
AGRICULTURIST
R/AT KIRANELLI VILLAGE
KAMLAPURA POST, RAVANDUR
HOBLI, PERIYAPATNA TALUK
MYSORE DISTRICT.
1a. SMT. JAYASHREE R.S
W/O LATE K.P. SADASHIVA
AGED ABOUT 30 YEARS.
1b. KUM K.S. YAMUNASHREE
D/O K.P. SADASHIVA
AGED ABOUT 12 YEARS
REPRESENTED BY HER MOTHER
AND NATURAL GUARDIAN
SMT. JAYASHREE K.S.
1c. SMT. KAMALAMMA
W/O LATE K.C. PUTTASWAMACHAR
AGED ABOUT 70 YEARS.
APPLICANTS 1 TO 3 ARE ALL
R/AT KIRANELLI VILLAGE
KAMALAPURA POST
RAVANDUR HOBLI
PERIYAPATNA TALUK
MYSORE DISTRICT.
...PETITIONERS
(BY SRI A. MADHUSUDHANA RAO, ADV.)
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WP No. 15512 of 2022
C/W WP No. 29901 of 2018
WP No. 30071 of 2018
HC-KAR
AND:
SRI K.P. JAGADISHA
S/O LATE PUTTANNACHAR,
EMPLOYEE, CENTRAL GOVERNMENT
R/AT NO.3/13, DGQA
HOUSING COMPLEX, GUNATHAVIHAR
NEAR MEKHRI CIRCLE
GANGENAHALLI
BANGALORE - 560 006.
...RESPONDENT
(BY SRI S.N. SAMEER, ADV.,)
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDER DATED 26.04.2018 PASSED BY THE LEARNED SENIOR
CIVIL JUDGE AND JMFC, PERIYAPATNA, ON I.A.NO.3 IN
O.S.NO.202/2015 PRODUCED AT ANNEXURE-H ALLOW THIS
WRIT PETITION WITH COSTS.
IN WP NO. 30071/2018:
BETWEEN:
1. SRI K.P. SADASHIVA
SINCE DEAD REPRESENTED BY HIS LRS.
1a. SMT. JAYASHREE R.S
W/O LATE K.P. SADASHIVA
AGED ABOUT 30 YEARS.
1b. KUM K.S. YAMUNASHREE
D/O K.P. SADASHIVA
AGED ABOUT 12 YEARS
REPRESENTED BY HER MOTHER
AND NATURAL GUARDIAN
SMT. JAYASHREE K.S.
1c. SMT. KAMALAMMA
W/O LATE K.C. PUTTASWAMACHAR
AGED ABOUT 70 YEARS.
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NC: 2025:KHC:43942
WP No. 15512 of 2022
C/W WP No. 29901 of 2018
WP No. 30071 of 2018
HC-KAR
APPLICANTS 1 TO 3 ARE ALL
R/AT KIRANELLI VILLAGE
KAMALAPURA POST
RAVANDUR HOBLI
PERIYAPATNA TALUK
MYSORE DISTRICT.
...PETITIONERS
(BY SRI A. MADHUSUDHANA RAO, ADV.)
AND:
SRI. K P JAGADISHA
S/O LATE PUTTANNACHAR,
EMPLOYE, CENTRAL GOVERNMENT
R/AT NO.3/13, DGQA
HOUSING COMPLEX, GUNATHAVIHAR,
NEAR MEKHRI CIRCLE, GANGENAHALLI,
BANGALORE-560 006.
...RESPONDENT
(BY SRI S.N. SAMEER, ADV.,)
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDER DTD20.11.2017 PASSED BY THE LEARNED SENIOR CIVIL
JUDGE AND JMFC, PERIYAPATNA, ON I.A.NO.2 IN
O.S.NO.202/2015 PRODUCED AT ANNEXURE-E, ALLOW THIS
W.P. WITH COSTS.
THESE PETITIONS, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY
ORAL ORDER
1. The point that arises for consideration and the parties to these three writ petitions are common and therefore, with the -6- NC: 2025:KHC:43942 WP No. 15512 of 2022 C/W WP No. 29901 of 2018 WP No. 30071 of 2018 HC-KAR consent of learned counsels appearing for the parties, the above captioned three writ petitions are heard together and disposed off by this common order.
2. Heard the learned counsel for the parties.
3. WP No.29901/2018 and WP No.30071/2018 These two writ petitions arise out of OS No.202/2015 which is filed by the petitioner in these two writ petitions seeking the relief of specific performance of the agreement for sale dated 20.12.2012. The prayer made in the suit was opposed by the contesting sole defendant by filing written statement.
In the said suit, IA No.2 was filed on behalf of the plaintiff under Section 63 of the Indian Evidence Act read with Rules 82 and 84 of the Karnataka Civil Rules of Practice and Section 151 of CPC seeking permission of the Court to produce the notarised copy of the agreement for sale dated 20.12.2012 and lead secondary evidence. The said application was opposed by the defendant by filing objections. The Trial Court vide the order dated 20.11.2017 rejected IA No.2 and as against the -7- NC: 2025:KHC:43942 WP No. 15512 of 2022 C/W WP No. 29901 of 2018 WP No. 30071 of 2018 HC-KAR said order, plaintiff in OS No.202/2015 is before this Court in WP No.30071/2018.
In the said suit, IA No.3 was filed by the plaintiff under Order VI Rule 17 read with Section 151 of CPC, seeking permission of the Court to amend the plaint by inserting additional paragraph No.6(a) in the plaint immediately after paragraph No.6. The said application was also opposed by the sole defendant by filing objections and the Trial Court vide order dated 26.04.2018 rejected IA No.3 filed in OS No.202/2015 and being aggrieved by the said order, plaintiff in OS No.202/2015 is before this Court in WP No.29901/2018. 4. WP No.15512/2022
The defendant in OS No.202/2015 has filed OS No.169/2014 before the jurisdictional Civil Court seeking the relief of permanent injunction in respect of the suit schedule properties which is also the subject matter of OS No.202/2015. The contesting defendant had opposed the prayer made in OS No.169/2014 by filing a detailed written statement in the said suit.
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NC: 2025:KHC:43942 WP No. 15512 of 2022 C/W WP No. 29901 of 2018 WP No. 30071 of 2018 HC-KAR IA No.10 was filed by defendant No.2, who is the plaintiff in OS No.202/2015 under Order VI Rule 17 read with Section 151 of CPC with a prayer to amend the written statement by incorporating paragraph No.9(a) immediately after paragraph No.9 of the written statement. The said application was opposed by the plaintiff by filing objections and the Trial Court by the order impugned dated 06.07.2022 has allowed IA No.10 filed by defendant No.2 in OS No.169/2014 and being aggrieved by the same, plaintiff in OS No.169/2014 is before this Court in WP No.15512/2022.
5. Learned counsel for the petitioner in WP No.29901/2018 and WP No.30071/2018 submits that petitioner has clearly stated in his affidavit filed in support of IA No.2 filed in OS No.202/2015 that after filing of the said suit, he had lost the original of the agreement for sale dated 20.12.2012. The Trial Court has failed to appreciate this aspect of the matter and has erred in rejecting IA No.2 on the ground that photostat copy of the agreement for sale was notarised a day prior to filing of the suit and therefore, as on the said day, petitioner is presumed to be in custody of the original of the sale agreement. Petitioner -9- NC: 2025:KHC:43942 WP No. 15512 of 2022 C/W WP No. 29901 of 2018 WP No. 30071 of 2018 HC-KAR has not explained when he has lost the original of the agreement for sale. He submits that for the purpose of permitting a party to lead secondary evidence, the party is only required to adduce factual foundational evidence showing the reason for not furnishing the original. He submits that in the proposed amendment which is sought for in IA No.3, petitioner has sought to explain the manner in which he had lost the original of the agreement for sale and this pleading is required to lay down the foundation to enable the petitioner to lead secondary evidence. The Trial Court has failed to appreciate this aspect of the matter and has erred in rejecting IA Nos.2 and 3 in OS No.202/2015, more so, when it had allowed IA No.10 in OS No.169/2014 filed by the petitioner, who is defendant No.2 in the said suit, seeking the very same relief. Petitioner, who is defendant No.2 in OS No.169/2014 has been permitted to amend his written statement and incorporate additional paragraph wherein similar averments are made.
6. In support of his arguments, he has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Jagmail Singh and Another vs. Karamjit Singh and Others
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- (2020) 5 SCC 178 and also on the judgment of this Court in the case of Gafarsab @ Sati Gafar Sab vs. Ameer Ahamed - ILR 2006 KAR 169.
7. Per contra, learned counsel appearing for the respondents in WP No.29901/2018 and WP No.30071/2018, who appears for petitioner in WP No.15512/2022 has argued in support of the order impugned which is passed in OS No.202/2015. He submits that since the applicant in IA Nos.2 and 3 filed in OS No.202/2015 was in possession of the original agreement for sale, the day prior to he filing the suit, it is apparent that he is suppressing the said document and therefore, the Trial Court was fully justified in dismissing IA Nos.2 and 3 filed in OS No.202/2015. He submits that since the Trial Court has rejected IA Nos.2 and 3 filed in OS No.202/2015, the Trial Court was not justified in allowing IA No.10 filed in OS No.169/2014 wherein defendant No.2 in OS No.169/2014, who is the plaintiff in OS No.202/2015 has been permitted to amend his written statement by incorporating an additional paragraph when the proposed amendment is similar to the amendment sought for in IA No.3 filed in OS No.202/2015. He, accordingly,
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NC: 2025:KHC:43942 WP No. 15512 of 2022 C/W WP No. 29901 of 2018 WP No. 30071 of 2018 HC-KAR prays to dismiss WP No.29901/2018 and WP No.30071/2018 and allow WP No.15512/2022.
8. It is trite that under the Evidence Act, 1872, facts have to be established by primary evidence and secondary evidence is only an exception to the rule for which foundational facts have to be established to account for the existence of the primary evidence. In the present case, the Trial Court has observed in the orders impugned that the agreement for sale dated 20.12.2012 was notarized on 09.12.2015 which is a day prior to filing of the suit in OS No.202/2015 and since notarization of a document is supposed to be done after comparing the document with its original, inference has to be drawn that plaintiff in OS No.202/2015 was in possession of original of the deed, a day prior to filing the suit. When such an inference is drawn, the foundational fact to permit the party to lead secondary evidence was laid down. The Trial Court has failed to appreciate the same.
9. The Hon'ble Supreme Court in the case of Jagmail Singh (supra), in paragraph Nos.16 to 19, has observed as follows:-
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NC: 2025:KHC:43942 WP No. 15512 of 2022 C/W WP No. 29901 of 2018 WP No. 30071 of 2018 HC-KAR "16. In view of the aforesaid factual situation prevailing in the case at hand, it is clear that the factual foundation to establish the right to give secondary evidence was laid down by the appellants and thus the High Court ought to have given them an opportunity to lead secondary evidence. The High Court committed grave error of law without properly evaluating the evidence and holding that the prerequisite condition i.e. existence of will remained unestablished on record and thereby denied an opportunity to the appellants to produce secondary evidence.
17. Needless to observe that merely the admission in evidence and making exhibit of a document does not prove it automatically unless the same has been proved in accordance with the law.
18. In view of the aforesaid legal and factual position, we are of the considered opinion that the impugned judgment of the High Court suffers from material irregularity and patent errors of law and not liable to be sustained and is thus, hereby set aside. The appeal accordingly stands allowed.
19. The appellants would be entitled to lead secondary evidence in respect of the will in question. It is, however, clarified that such admission of secondary evidence automatically does not attest to its authenticity, truthfulness or genuineness which will have to be established during the course of trial in accordance with law."
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10. In the case of Gafar Sab (supra) in paragraph Nos.5 and 6, it is observed as follows:-
"5. Chapter V of the Indian Evidence Act, 1872 (for short "the Act") deals with documentary evidence. Section 61 of the Act deals with proof of contents of documents. The contents of documents may be proved either by primary or secondary evidence. Primary evidence means the document itself produced for inspection of the Court whereas the secondary evidence means and includes certified copies of public documents, copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies, copies made from or compared with the original; counter parts of documents as against the parties who did not execute them and oral accounts of the contents of a documents given by some person who has himself seen it. It is clear as a rule documents must be proved by primary evidence. If the primary evidence is not available for the reasons set out in Section 65 of the Act only then secondary evidence is admissible. Therefore, before secondary evidence is adduced, a proper foundation is to be laid for not producing the primary evidence. Only after the non-production of the primary evidence is satisfactorily accounted for, the secondary evidence would be permitted to be adduced.
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6. A party to the proceedings is not expected to file any application requesting the Court to permit him to lead the secondary evidence. All that is expected of him is to step into the witness box and lead evidence setting out the circumstances under which he is unable to produce the primary evidence. If the Court is satisfied from such evidence that 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 the Act. However, when such permission is granted to the party by the Court to lead secondary evidence, it is open to the opposite party to object to the production of such secondary evidence, in which event the Court has to mark the document subject to the objections and decide the objections at the time of final disposal of the suit on merits. In the event the objection is upheld the said documents and the evidence adduced in respect of the said documents may be ignored while deciding the case on merits. If the objection is over-ruled, the said documents and the evidence given in respect of the said documents can be taken into consideration while disposing of the case on merits. But, on the ground that the party who proposes to adduce secondary evidence has not disclosed from where, which authority he got the documents and whether the said documents are coming from a proper custody, the document cannot be refused to be received in evidence. It is totally irrelevant consideration at the time of admitting the documents in evidence. In that view of the matter, though the application filed by the
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NC: 2025:KHC:43942 WP No. 15512 of 2022 C/W WP No. 29901 of 2018 WP No. 30071 of 2018 HC-KAR defendant is totally misconceived, the reasoning given by the learned trial Judge for not accepting the secondary evidence is also illegal. Hence, the aforesaid findings require to be quashed, reserving the liberty to the petitioner-defendant to lay a proper foundation by satisfactorily explaining the reason for not producing the primary evidence and thereafter he is at liberty to produce the secondary evidence which the Court may receive subject to the objections of the opposite party and decide the admissibility of the documents at the time of final disposal of the suit on merits. Hence, I pass the following order:
a) The impugned order is hereby quashed.
Application filed by the petitioner-defendant is dismissed as not maintainable.
b) Notwithstanding the impugned order and this order, it is open to the defendant to lead secondary evidence in accordance with law and the Trial Court is directed to admit such evidence subject to objections to be raised by the opposite party and decide the objections at the time of final disposal on merits and in accordance with law."
11. Therefore, the Trial Court was not justified in rejecting IA No.2 filed in OS No.202/2015, wherein prayer made was to permit the plaintiff to produce secondary evidence. IA No.3 in OS No.202/2015 and IA No.10 in OS No.169/2014 were filed to
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NC: 2025:KHC:43942 WP No. 15512 of 2022 C/W WP No. 29901 of 2018 WP No. 30071 of 2018 HC-KAR amend the plaint and written statement respectively by incorporating a paragraph, wherein the fact as to when and how the agreement for sale dated 20.12.2012 was lost is sought to be explained. The proposed amendment is to bring on record the subsequent facts and the same does not change the nature of suit nor would it amount to withdrawal of any admission. The Trial Court having permitted the very same party to amend his written statement filed in OS No.169/2014 by incorporating additional paragraph which is similar to the proposed amendment in OS No.202/2015, has erred in rejecting IA No.3 in OS No.202/2015 wherein the proposed amendment was similar as made in OS No.169/2014. Therefore, Trial Court which has rightly allowed IA No.10 in OS No.169/2014 was not justified in rejecting IA No.3 filed in OS No.202/2015, when the proposed amendment is similar. Therefore, I am of the considered opinion that orders impugned passed on IA Nos.2 and 3 in OS No.202/2015 are unsustainable and the order passed on IA No.10 in OS No.169/2014 is required to be confirmed. Accordingly, the following order:-
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12. WP No.29901/2018 and WP No.30071/2018 are allowed. The orders impugned passed on IA Nos.2 and 3 in OS No.202/2015 by the Court of Senior Civil Judge and JMFC, Periyapatna, are set-aside and consequently, prayer made in the said applications are granted. WP No.15512/2022 is dismissed.
13. In view of the disposal of the main petitions, pending interlocutory applications, if any, do not survive for consideration. Accordingly, they are disposed off.
Sd/-
(S VISHWAJITH SHETTY) JUDGE DN List No.: 1 Sl No.: 30