Karnataka High Court
Sri Souriraj D vs Smt R Yashoda on 30 June, 2023
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2023:KHC:22619
WP No. 3171 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO.3171 OF 2021 (GM-CPC)
BETWEEN:
SRI SOURIRAJ D
S/O LATE DORAISWAMY
AGED ABOUT 55 YEARS
R/O NO.U-36, 2ND CROSS,
DAYANANDNAGAR, SRIRAMPURAM
BANGALORE-560 021.
...PETITIONER
(BY SRI. P. MAHESHA, ADVOCATE)
AND:
SMT R YASHODA
W/O LATE RAJENDRA
AGED ABOUT 63 YEARS
R/O NO.141, 1ST MAIN ROAD
RAMACHANDRAPURAM
Digitally
signed by BANGALORE-560 021.
VANDANA ...RESPONDENT
S
Location:
(BY SRI. S. RAVISHANKAR, ADVOCATE)
High Court
of
Karnataka THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DTD.6.2.2021 PASSED BY THE CITY CIVIL JUDGE AT BANGALORE
(CCH-15) MADE ON MARKING OF XEROX COPY OF DOCUMENT IN
O.S.NO.8799/2021 VIDE ANNEXURE-D.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
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NC: 2023:KHC:22619
WP No. 3171 of 2021
ORDER
This petition by the plaintiff in O.S.No.8799/2017 is directed against the impugned order dated 06.02.2021 passed by the VIII Addl. City Civil & Sessions Judge, Bengaluru, whereby the objection raised by the petitioner - plaintiff regarding admissibility of a document Photostat copy / Xerox copy of the Agreement dated 08.04.2017 produced by the respondent - defendant was kept open by the Trial Court to be decided at the time of final disposal of the suit by marking the same subject to objection.
2. Heard learned counsel for the petitioner and learned counsel for the respondent and perused the material on record.
3. A perusal of the material on record will indicate that the petitioner / plaintiff instituted the aforesaid suit against the respondent - defendant for specific performance and other reliefs in relation to the suit schedule immovable properties. In the written statement filed by the respondent - defendant, apart from denying and disputing the various claims and contentions of the petitioner -
plaintiff, the respondent - defendant took up specific contention that the original Sale Agreement was in the custody of the -3- NC: 2023:KHC:22619 WP No. 3171 of 2021 petitioner - plaintiff as alleged in para 10 of the plaint of the Photostat copy / Xerox copy of the same was being produced as document No.1 along with the written statement.
4. During the course of trial, the petitioner - plaintiff completed his evidence, pursuant to which, the respondent -
defendant examined himself as DW1. During his evidence, the aforesaid Photostat copy / Xerox copy was sought to be marked as an exhibit on his behalf. At that stage, the petitioner having raised objection regarding admissibility of the said document on the ground that the same was not secondary evidence within the meaning of Section 63 of the Indian Evidence Act coupled with the fact that no sufficient foundation was laid down by the respondent -
defendant for marking the said document as secondary evidence in terms of Sections 65 and 66 of the Evidence Act, the trial Court proceeded to pass the impugned order keeping the objections in abeyance and leaving open all contentions regarding admissibility to be decided by the trial Court at the time of final disposal of the suit and by tentatively marking the said document as exhibit.
Aggrieved by the impugned order, the petitioner is before this Court by way of the present petition.
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5. A perusal of the impugned order passed by the trial Court will indicate that the trial Court has correctly and properly exercised its discretion in marking the document as exhibit by leaving / keeping open all questions regarding admissibility of the said document to be decided at the time of final disposal of the suit by holding as under:
"ORDER ON MARKING OF THE DOCUMENT This suit is filed by the plaintiff seeking specific performance of contract, to direct the defendant to execute the sale deed in respect of the suit property as per the agreement for sale dated 8.4.2017 - under which, defendant has allegedly agreed to sell the suit property for consideration of Rs.40,00,000/-.
2. But, in the written statement, defendant has contended that though she has executed agreement for sale in question, she has not agreed to sell the suit property for consideration of Rs.40,00,000/-, in fact, plaintiff has agreed to purchase the suit property for consideration of Rs.81,00,000/- and accordingly, on the same day, another agreement for sale for actual consideration of Rs.81,00,000/- was executed. But, at the time of execution of the agreement for sale, the said original agreement for sale executed for consideration of Rs.81,00,000/- was kept with the -5- NC: 2023:KHC:22619 WP No. 3171 of 2021 plaintiff and photostat copy of the same was handed over to the defendant.
3. During evidence, when defendant wanted to introduce the said xerox copy of the agreement for sale for consideration of Rs.81,00,000/-, plaintiff's Counsel has raised objection stating that xerox copy of the agreement for sale is inadmissible. In support of his said contention, plaintiff's Counsel has relied upon the following judgments of the Hon'ble Supreme Court of India and the Hon'ble High Court of Karnataka -
(1) ILR 2002 KAR 3613 [K. Anjaneya Setty - versus- K.H. Rangiah Setty]
- "INDIAN REGISTRATION ACT, 1908 (CENTRAL ACT NO. 16 OF 1908) -- SECTION 49 AND KARNATAKA STAMP ACT, 1957 (KARNATAKA ACT NO. 22 OF 1957) -- SECTION 35 -- There is no total prohibition for receiving unregistered documents in evidence. Un-Registered Partition Deed could be received in evidence to prove any collateral transaction."
(2) Order passed by the Hon'ble High Court of Karnataka in Writ Petition No.14488/2020 (GM-CPC) [M.R. Shivarudraiah and another -versus-
Rudrappa and others] dated
28.1.2021.
(3) Order passed by the Hon'ble High Court of Karnataka in Writ Petition No.19392/2012 (GM-CPC) [Prakash
-versus- Doddathayamma and others] dated 13.3.2014.
(4) (2010) 8 Supreme Court Cases 423 -6- NC: 2023:KHC:22619 WP No. 3171 of 2021 [Shalimar Chemical Works Limited -
versus- Surendra Oil and Dal Mills (Refineries) and others] -
"B. Civil Procedure Code, 1908 - Or. 13 Rr. 4 and 3 - Admission of documents in evidence - Proper procedure for - Admissibility of a document, held, to be decided at the stage of admission itself, instead of leaving it be decided subsequently -
Appellant-plaintiff producing photocopy of trade mark registration certificate - production of photocopy instead of original, objected to by opposite party yet trial Court provisionally admitting photocopy "subject to objection of proof and admissibility" - Held, photocopy should have been rejected in the beginning itself - Having admitted a photocopy and then dismissing appellant-plaintiff's suit against infringement of trade mark, was a wrong procedure - Evidence Act, 1872 - S.3 - Admissibility of evidence - Stage at which to be decided - Civil suit."
(5) Order passed by the Hon'ble High Court of Karnataka in Writ Petition No.43447/2016 (GM-CPC) [V.R. Arunkumar and another - versus-
G.C. Suresh and another] dated 24.11.2017.
4. On the other hand, learned Counsel for the defendant has contended that when there is objection regarding marking of documents, instead of deciding the validity of the objections or otherwise, the Court has to mark the document in question subject to objections and it shall consider -7- NC: 2023:KHC:22619 WP No. 3171 of 2021 the objections at the time of final stage of the trial. In support of his said argument, he has relied upon the following judgments -
(1) 2018 (2) Kar. L.R. 548 [M/s. Mahesh and Associates
-versus- B.K. Garudachar and others]. (2) Order passed by the Hon'ble High Court of Karnataka in Writ Petition No.39145/2011 (GM-CPC) [J. Gopal
-versus- K.M. Gopal and others] dated 15.7.2013.
(3) (2001) 3 Supreme Court Cases 1 [Bipin Shantilal Panchal -versus-
State of Gujarat and another] - A
5. On perusal of the submissions made by both the Counsel to the parties and the judgments relied upon by them, it appears that the Hon'ble Supreme Court of India, in the judgment reported in (2001) 3 Supreme Court Cases 1 [Bipin Shantilal Panchal -versus-State of Gujarat and another], has directed that all the trial Courts to adopt the procedure to note down any objections raised regarding admissibility of any material and to decide the validity of the said objection at the time of final hearing of the matter instead of deciding the said objection at the time of evidence.
6. In the judgment of the Hon'ble Supreme Court of India, it is directed that only when objections are regarding sufficiency of stamp duty, then only the Court has to decide about the said objection at the time of evidence only. Though learned Counsel for the plaintiff has relied upon the -8- NC: 2023:KHC:22619 WP No. 3171 of 2021 subsequent judgment of the Hon'ble Supreme Court reported in (2010) 8 Supreme Court Cases 423 [Shalimar Chemical Works Limited -versus- Surendra Oil and Dal Mills (Refineries) and others], orders passed by the Hon'ble High Court of Karnataka in Writ Petition No.14488/2020 (GM- CPC) [M.R. Shivarudraiah and another -versus- Rudrappa and others] dated 28.1.2021, and in Writ Petition No.43447/2016 (GM-CPC) [V.R. Arunkumar and another - versus- G.C. Suresh and another] dated 24.11.2017, as the judgment rendered by the Hon'ble Supreme Court of India in (2001) 3 Supreme Court Cases 1 [Bipin Shantilal Panchal -versus- State of Gujarat and another] is of Larger Bench, it is proper to follow the directions of the Hon'ble Supreme Court of India in the judgment rendered in (2001) 3 Supreme Court Cases 1 [Bipin Shantilal Panchal -versus- State of Gujarat and another]. Therefore, it is decided to mark xerox copy of the agreement produced by the defendant subject to objection and decide validity of the said objection at the time of final hearing of the matter. Hence, the following ORDER Objection raised by the plaintiff's Counsel regarding admissibility of xerox copy of the agreement produced by the defendant, is kept open for considering at the time of final hearing of the matter -9- NC: 2023:KHC:22619 WP No. 3171 of 2021 and it is decided to mark the copy of the alleged agreement subject to objection."
6. As can be seen from the impugned order, the trial Court has safeguarded / protected the rights and contentions of the petitioner by leaving open all questions regarding admissibility and the objections raised by the petitioner in this regard to be decided at the time of final disposal of the suit, which clearly indicates that no prejudice would be caused to the petitioner nor has the impugned order has resulted in miscarriage of justice warranting interference by this Court in the exercise of its jurisdiction under Article 227 of the Constitution of India as held in Radhey Shyam Vs. Chhabi Nath - (2015) 5 SCC 423 case.
7. In the result, I pass the following:
ORDER
(i) The petition is hereby disposed of without interfering with the impugned order.
(ii) All rival contentions between the parties regarding admissibility, proof, relevance, probative value, etc. of the Photostat copy / Xerox copy of the alleged Sale Agreement dated 08.04.2017 marked as Ex.D1 are kept
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NC: 2023:KHC:22619 WP No. 3171 of 2021 open to be decided by the Trial Court at the time of final disposal of the suit and no opinion is expressed on the same.
(iii) Trial Court is directed to dispose of the suit as expeditiously as possible without being influenced by the findings and observations recorded in the impugned order.
(iv) All rival contentions on all aspects of the matter are kept open and no opinion is expressed on the same.
Sd/-
JUDGE SV