Karnataka High Court
Smt. V. Lalithamma vs The Chief Manager on 19 July, 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JULY 2022
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
WRIT PETITION NO.11134 OF 2019 (GM-CPC)
BETWEEN:
SMT. V. LALITHAMMA
W/O LATE SRI. T. S. PAPANNA
AGED ABOUT 68 YEARS
R/AT: NO.527/B, 4TH A CROSS
12TH A MAIN, OPP. RAJIV GANDHI PARK
YELAHANKA NEW TOWN
A SECTOR, BANGALORE-560 064.
...PETITIONER
(BY SRI. UMESH R S, ADVOCATE)
AND:
1. THE CHIEF MANAGER
D H F L VYSYA HOUSING FINANCE LTD.
NO.284, 2ND FLOOR, B/W 17TH & 18TH CROSS
SAMPIGE ROAD, MALLESWARAM,
BANGALORE-560 003
BY ITS BRANCH MANAGER,
MR.R. RAJASHEKAR.
2. SMT. SEEMA
W/O LATE MOHAN BABU
D/O P.KRISHNAPPA
2
AGED ABOUT 40 YEARS
R/AT NO.39, 1ST E MAIN
DR. RAJENDRA PRASAD ROAD,
GIRINAGAR, BANGALORE-560 095.
3. SMT. P. SUCHITHRA
W/O MR. SURESH
AND D/O LATE PAPANNA
R/AT NO.50, 1ST MAIN ROAD,
12TH CROSS, MARUTHINAGAR
YELAHANKA, BANGALORE-560 064.
....RESPONDENTS
(R-1 -SERVED AND UNREPRESENTED
VIDE ORDER DATED 14.03.2019 NOTICE TO R2 AND R3
IS DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH OR
SET ASIDE THE ORDERS DATED 15.02.2019, OVER
RULING THE OBJECTIONS RAISED BY THE PETITIONER
AND PASSED BY THE LEARNED LIX ADDL. CITY CIVIL &
SESSIONS JUDGE (CCH 60, BANGALORE CITY, IN O.S.116
OF 2016, (CCH NO.60) AS PER ANNEXURE-G.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 13.06.2022, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioner aggrieved by the order dated 15.02.2019, passed in O.S.No.116/2016, by the LIX 3 Addl. City Civil & Sessions Judge, Bengaluru (CCH-
60), has filed this writ petition.
2. Brief facts leading rise to filing of this petition are as under:
Petitioner filed a suit in O.S.No.116/2016 for mandatory injunction against the respondents. Respondents No.1 and 3 filed written statement separately. The Trial Court on the basis of pleadings of parties, framed issues. Petitioner was examined as PW-1 and was duly cross-examined by the respondents. Petitioner closed his side. The official of respondent No.1 was examined as DW-1. During the course of cross-examination, certain questions were asked to DW-1 for which he tried to look into the office file he had brought along with him to answer the same. Petitioner raised objection stating that the witness is not permitted to refer the office file. The Trial Court overruled the objection and permitted DW- 4 1 to refer the file brought by him. Aggrieved by the same, petitioner has filed this writ petition.
3. Notice was issued to respondent No.1. Inspite of service of notice, respondent No.1 remained unrepresented. Insofar as respondents No.2 and 3 are concerned, petitioner filed a memo seeking dispensation of notice to respondents No.2 and 3. This Court vide order dated 14.03.2019, dispensed notice to respondents No.2 and 3.
4. Heard learned counsel for the petitioner.
5. Learned counsel for the petitioner submits that DW-1 being the witness has no right to refer the file brought by him during the course of cross- examination. He submits that the respondents have not produced the said documents before the Court. The petitioner cannot be taken by surprise by referring the file brought by him. He submits that the 5 Trial Court committed an error in passing the impugned order. Hence on these grounds, prays to allow the writ petition.
6. Perused the records and considered the submissions made by learned counsel for the petitioner.
7. There is no dispute that the petitioner filed a suit for mandatory injunction directing the respondents 1 and 2 to deliver the original documents of title deeds of the schedule property to the plaintiff against the respondents. The respondent No.1 - Bank examined the Branch Manager as DW-1. During the course of cross-examination, the said witness was referring to the file which was brought by him. The petitioner raised objection for referring the office file. In order to consider the case in hand, it is necessary 6 to refer Section 159 of the Indian Evidence Act which reads as under:
"159. Refreshing memory:
A witness may, while under
examination, refresh his memory by
referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the Court considers it likely that the transaction was at that time fresh in his memory.
The witness may also refer to any such writing made by any other person, and read by the witness within the time aforesaid, if when he read it he knew it to be correct.
When witness may use copy of document to refresh memory:
Whenever a witness may refresh his memory by reference to any document, he may, with the permission of the Court, refer to a copy of such document:7
Provided the Court be satisfied that there is sufficient reason for the non- production of the original.
An expert may refresh his memory by reference to professional treatises."
8. Section 159 of the Act provides that witness while under examination refresh his memory by referring to any writing made by himself at the time of transaction concerning which he is questioned, or the transaction that was at that time fresh in his memory. DW-1 being an official witness is deposing before the Court based on the records maintained by the Bank and not on his personal knowledge. The official witness may refer the office file for refreshing the memory under examination. If the official witness is not allowed to look into the original records, there is a possibility of giving incorrect facts in the evidence. The said view is supported by the decision of Coordinate Bench of this Court in the case of 8 KARNATAKA STATE FINANCIAL CORPORATION VS. M/S. AKARSH GRANITE INDUSTRIES & ORS., in W.P.No.13085/2011, disposed of on 03.12.2014.
9. The Trial Court, after considering the material on record, was justified in passing the impugned order. I do not find any grounds to interfere with the impugned order. Accordingly, the writ petition is dismissed.
SD/-
JUDGE RD