Karnataka High Court
Shri. Shivaji S/O Nanappa Ghatge vs Shri. Mallikarjun S/O Dundappa Jolad on 21 March, 2024
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NC: 2024:KHC-D:5594
WP No. 104055 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 21st DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE K V ARAVIND
WRIT PETITION NO. 104055 OF 2018 (GM-CPC)
BETWEEN
SHRI. SHIVAJI,
S/O. NANAPPA GHATGE,
AGE: 49 YEARS,
OCC: AGRICULTURE AND BUSNIESS,
R/O: NAVALUR,
TALUKA: DHARWAD,
DISTRICT: DHARWAD-580009.
...PETITIONER
(BY MISS. VINUTA M. KHANNUR, ADVOCATE)
AND
1. SHRI. MALLIKARJUN,
Digitally signed S/O. DUNDAPPA JOLAD,
by VARSHA N
RASALKAR AGE: 85 YEARS,
Location: HIGH
COURT OF OCC: MEDICAL PRACTITIONER,
KARNATAKA
R/O. KESHAV NAGAR,
DHARWAD-580007.
2. SMT. SHILPA,
W/O. RAMESH IDAGALL,
AGE: 40 YEARS,
OCC: TEACHER,
R/O. NO.25, SHRIPAD NAGAR,
2ND CROSS, SAPTAPUR,
DHARWAD-580008.
...RESPONDENTS
(BY SRI. ROHIT S. PATIL, ADV. FOR R1;
SRI. ARUN L. NEELOPANT, ADV. FOR R2)
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NC: 2024:KHC-D:5594
WP No. 104055 of 2018
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
ISSUE A WRIT OF CERTIORARI QUASHING THE ORDER DATED
20.03.2018 ON I.A.NO.08 IN O.S.NO.182/2011 PASSED BY THE
COURT I ADDL. SENIOR CIVIL JUDGE AND CJM, DHARWAD,
VIDE ANNEXURE-E AND ALLOW THE I.A.08 DATED 05.01.2018
VIDE ANNEXURE-C IN THE INTEREST OF JUSTICE AND EQUITY
AND ETC.,
THIS PETITION HAVING BEEN HEARD AND RESERVED ON
18.01.2024 AND COMING ON FOR PRONOUNCEMENT OF
ORDER, THIS DAY THE COURT PRONOUNCED THE FOLLOWING:
ORDER
This petition by the plaintiff challenging the order dated 20.03.2018 on I.A.No.8 in O.S. No.182/2011 on the file of the I Additional Senior Civil Judge & CJM, Dharwad.
2. The parties are referred to as per their ranks before the Tribunal for convenience.
3. The plaintiff filed a suit for specific performance to execute a sale deed pursuant to the agreement of sale dated 26.08.2008. Defendant No.1 filed written statement denying the execution of agreement of sale. Further disputed that defendant No.1 has not received any consideration from the plaintiff at any point of time and alleged that the agreement of sale dated 26.08.2008 is forged, concocted and created document. Defendant No.2 -3- NC: 2024:KHC-D:5594 WP No. 104055 of 2018 filed written statement contending that he is the agreement holder to purchase the property for a consideration of Rs.15,50,000/-. The plaintiff filed an application under Sections 63 and 65 of the Indian Evidence Act, 1872 [for short 'I.E. Act'] read with Section 151 of CPC to mark the Xerox copy of agreement of sale dated 26.08.2008 as exhibit in support of his case. Defendant Nos.1 and 2 reiterating their contentions in the written statement objected the application. The Trial Court by order dated 20.03.2018 rejected the application holding that in the absence of original agreement of sale, Xerox copy of the alleged agreement of sale cannot be considered as secondary evidence.
4. Heard Miss Vinuta M Khannur, learned counsel for the petitioner, Sri Rohit S Patil, learned counsel for respondent No.1 and Sri Arun L Neelopant, learned counsel for respondent No.2.
5. Learned counsel for the petitioner/plaintiff contended that the plaintiff entered into the agreement of sale of non-agricultural plot bearing Sy.No.47/A21, measuring 06 -4- NC: 2024:KHC-D:5594 WP No. 104055 of 2018 guntas, situated at Lakamanahalli village, Dharwad Taluk [hereinafter referred to as 'schedule property], for a consideration of Rs.15,50,000/-. On 26.08.2008, paid a sum of Rs.5,00,000/- pursuant to the execution of agreement of sale. The period of one month was agreed to pay the balance consideration of Rs.10,50,000/- and to execute the sale deed. Defendant No.1 on one or the other pretext postponed the execution of sale deed. In the circumstances, plaintiff preferred a suit seeking specific performance of the agreement of sale dated 26.08.2008.
6. Learned counsel further submits that the plaintiff while traveling to his advocate's office in the month of March 2017 along with the original agreement of sale, met with an accident, sustained injuries and was taken to hospital for treatment. After the treatment, plaintiff realized that the original agreement of sale was left in the place of accident. However, after much efforts made, the original agreement of sale could not be traced. In the circumstance, to prove the case of the plaintiff, Xerox copy -5- NC: 2024:KHC-D:5594 WP No. 104055 of 2018 of the agreement of sale has to be considered as secondary evidence. If the Xerox copy of the agreement of sale is not permitted to be marked, the interest of the plaintiff would be prejudiced that too after having paid a sum of Rs.5,00,000/- as advance sale consideration. Thus, prays to allow the writ petition.
7. Learned counsel for the petitioner in support of the contentions relies on the judgment of the Rajasthan High Court in the case of Shedu and others vs. Birdha and another reported in II (2002) CLT 524, to contend that denial to accept photocopy of the relevant document results in miscarriage of justice and prejudice the case of a particular party, the principle of secondary evidence can be lead only after primary evidence is lead cannot be applied.
8. Learned counsel has further relied on judgment of the Madras High Court in the case of L S Sadapopan (Died) and another vs. K S Sabrinathan reported in AIR 2002 Madras 278, to contend that if the original is lost, destroyed, detained by the opponent or third person -6- NC: 2024:KHC-D:5594 WP No. 104055 of 2018 who does not produce it before the Court, secondary evidence is admissible.
9. Per contra, learned counsel for the respondents/defendants submits that the execution of the agreement of sale itself is in dispute. The contention of the plaintiff that in the month of March 2017 while traveling to his advocate's office along with original agreement of sale deed, met with an accident, sustained injuries and was taken to hospital, is without any substance. Learned counsel further submits that no documents have been placed by the plaintiff to prove that he has met with an accident and was treated in the hospital. Learned counsel further submits that when the execution of the document itself is in dispute and specifically denied by defendant No.1, the said issue can be resolved only on production of the original agreement of sale. Further submits that as the agreement itself is not executed by defendant No.1 and the Xerox copy of the alleged agreement of sale being concocted, the concocted story of the plaintiff having met with an accident and -7- NC: 2024:KHC-D:5594 WP No. 104055 of 2018 having lost the alleged agreement of sale cannot be accepted. The Trial Court has rightly rejected the application. Thus, prays to dismiss the writ petition.
10. Learned counsel for the respondent relies on the judgment of the Hon'ble Apex Court in the case of Hariom Agrawal vs. Prakash Chand Malviya reported in AIR 2008 SC 166 and contends that the alleged agreement of sale is not sufficiently stamped and cannot be considered as evidence.
11. Heard learned counsel for the parties, considered the submissions and perused writ papers.
12. It is the case of the plaintiff that he entered into an agreement of sale dated 26.08.2008 to purchase the schedule property for a consideration of Rs.15,50,000/- and a sum of Rs.5,00,000/- has been paid as advance consideration on the date of execution of agreement of sale. It is further contended that the plaintiff while traveling to his advocate's office in the month of March 2017 met with an accident, sustained injuries, taken to -8- NC: 2024:KHC-D:5594 WP No. 104055 of 2018 hospital for treatment, in the process, he lost the original agreement of sale. The above contentions are not acceptable. When defendant No.1 has specifically denied execution of sale agreement in his written statement and alleged that the agreement of sale deed dated 26.08.2008 is forged, concocted and created document, burden is on the plaintiff to produce the original agreement of sale and to prove the execution.
13. Though the plaintiff has contended that out of total consideration of Rs.15,50,000/-, a sum of Rs.5,00,000/- has been paid on 26.08.2008, no material is placed on record to prove the payment of advance consideration. In the application filed under Sections 63 and 65 of the I.E. Act, the plaintiff has stated that he met with an accident in the month of March 2017 while traveling to his advocate's office. The date on which the alleged accident occurred is not clear. The plaintiff's contention that he met with an accident in the month of March 2017 is very vague. No specific date of accident is stated in the application nor any material is placed. Further, it is contended that he -9- NC: 2024:KHC-D:5594 WP No. 104055 of 2018 has sustained injuries in the accident, taken to the hospital and was treated. To support this contention also, not a single piece of evidence is placed on record.
14. Defendant No.1 has specifically denied the execution of alleged agreement of sale and specifically alleged that the said agreement being forged, concocted and created document at the earliest point of time when the written statement was filed. The plaintiff has to discharge the burden of execution of the alleged sale agreement and also genuineness of the agreement of sale. As a prudent person, it is expected that when a property document is lost, a minimum degree of care and caution is taken. In the present case, the plaintiff is not clear about the specific date on which he met with the accident and lost the document. There is no proof on record to substantiate the accident and the original sale agreement being lost due to the said accident. No consequential actions are being taken which are expected to be taken by a prudent person.
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15. The Hon'ble Apex Court in the case of Vijay vs. Union of India reported in 2023 SCC OnLine SC 1585 considered the issue regarding acceptance of copy of the document as secondary evidence when the original instrument is not in possession of the party. The Hon'ble Apex Court on examination of Sections 61, 63 and 65 of the Indian Evidence Act has laid down the principles relevant for examining the admissibility of secondary evidence. The said principles are as under;
"33.1 Law requires the best evidence to be given first, that is primary evidence. 33.2 Section 63 of the Evidence Act provides a list of the kinds of documents that can be produced as secondary evidence, which is admissible only in the absence of primary evidence.
33.3 If the original document is available, it has to be produced and proved in the manner prescribed for primary evidence. So long as the best evidence is within the possession or can be produced or can be reached, no inferior proof could be given. 33.4 A party must endeavor to adduce primary evidence of the contents, and only in
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NC: 2024:KHC-D:5594 WP No. 104055 of 2018 exceptional cases will secondary evidence be admissible. The exceptions are designed to provide relief when a party is genuinely unable to produce the original through no fault of that party.
33.5 When the non-availability of a document is sufficiently and properly explained, then the secondary evidence can be allowed.
33.6 Secondary evidence could be given when the party cannot produce the original document for any reason not arising from his default or neglect.
33.7 When the copies are produced in the absence of the original document, they become good secondary evidence. Still, there must be foundational evidence that the alleged copy is a true copy of the original.
33.8 Before producing secondary evidence of the contents of a document, the non-
production of the original must be accounted for in a manner that can bring it within one or other of the cases provided for in the section.
33.9 Mere production and marking of a document as an exhibit by the Court
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WP No. 104055 of 2018
cannot be held to be due proof of its
contents. It has to be proved in
accordance with law."
16. On examination of the facts in the present case and on application of the principles laid down by the Hon'ble Apex Court, the alleged agreement of sale dated 26.08.2008 cannot be considered as secondary evidence.
The present case would not attract any of the circumstances as held by the Hon'ble Apex Court to accept the Xerox copy of the agreement of sale in the absence of original document especially in the circumstances when the defendant has denied execution of the same and allege that said agreement is forged and concocted.
17. The Trial Court has rightly arrived at a conclusion that no legal steps have been taken by the plaintiff by filing a complaint or a paper publication after the agreement of sale is lost. It is further contended that the plaintiff was put in possession of the schedule property pursuant to the agreement of sale. No evidence is placed on record to prove the possession being handed over to
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NC: 2024:KHC-D:5594 WP No. 104055 of 2018 the plaintiff by defendant No.1. Further, the Trial Court has rightly recorded that the agreement of sale with possession being a compulsory registerable document, the said document cannot be considered as evidence.
18. In the circumstances, no ground is made out to interfere with the order of the Trial Court. Hence, the writ petition is dismissed.
Sd/-
JUDGE MV CT:BN