Karnataka High Court
Mr Sudhakar Rao K vs Mr Narayana Alias Laxmi Narayana on 8 November, 2023
Author: S.G.Pandit
Bench: S.G.Pandit
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NC: 2023:KHC:39877
WP No. 5493 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S.G.PANDIT
WRIT PETITION NO. 5493 OF 2023 (GM-CPC)
BETWEEN:
MR. SUDHAKAR RAO K
S/O K SHANKAR RAO
AGED ABOUT 53 YEARS
R/AT NO.3, 10TH MAIN ROAD
DEVANGA SANGA, HOSTEL ROAD
SAMPANGI RAMA NAGAR
BENGALURU- 560027.
...PETITIONER
(BY SRI. S.F. GOUTHAM CHAND, ADV.)
AND:
1. MR. NARAYANA ALIAS LAXMI NARAYANA
S/O LATE N NAGAPPA
AGED ABOUT 48 YEARS
Digitally PRESENTLY R/AT NO.3 AND 4
signed by B MAHALXMI NILAYA
LAVANYA OPP. C K R TOWER, SARAKKI MAIN ROAD
Location: J P NAGAR, 1ST PHASE
HIGH BENGALURU-560078.
COURT OF
KARNATAKA 2. THE HON'BLE SECRETARY
DEVANGA SANGHA
10TH MAIN ROAD, DEVANGA HOSTEL ROAD
SAMPANGI RAMA NAGAR
BENGALURU-560027.
...RESPONDENTS
(BY SRI. M. ASWATHANARAYANA REDDY, ADV. FOR R1
R2 IS SERVED & UNREPRESENTED)
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NC: 2023:KHC:39877
WP No. 5493 of 2023
THIS PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED
06.08.2022 PASSED IN OS. NO.7804/2013 ON IA.10 BY THE I
ADDL. CITY CIVIL JUDGE (CCH-2) AT BENGALURU PRODUCED AT
ANNX-D AND QUASH THE ORDERS DATED 18.01.2023 AND
10.02.2023 PASSED IN OS.NO.7804/2013 BY THE I ADDL CITY CIVIL
JUDGE (CCH-2) AT BENGALURU PRODUCED AT ANNX-D.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
Petitioner, Court witness and person to whom witness summons is issued is before this Court praying to set aside order dated 06.09.2022 on I.A.No.10 and also orders dated 18.01.2023 and 10.02.2023 in O.S.No.7804/2013 on the file of the I Additional City Civil Judge (CCH-2), Bengaluru (for short, 'Trial Court').
2. Heard the learned counsel Sri.S.F.Goutam Chand for petitioner/Court Witness and learned counsel Sri.M.Aswathanarayana Reddy for respondent No.1/plaintiff. Perused the writ petition papers.
3. Learned counsel for the petitioner/Court witness in O.S.No.7804/2013 would submit that Trial Court committed an error in allowing I.A.No.10 filed by plaintiff -3- NC: 2023:KHC:39877 WP No. 5493 of 2023 under Order XVI Rules 1 and 6 of CPC praying to issue witness summons to the petitioner/i.e., Mr.Sudhakar Rao and directing to produce original Will and to give evidence. Learned counsel would submit that Trial Court could not have directed the petitioner/Court witness to produce original Will which is his title deed in respect of the property purchased by father of petitioner from the sister of plaintiff's father. Learned counsel would submit that he purchased a portion of property from sister of the father of petitioner under sale deed dated 30.10.2003. Along with sale deed, Will dated 20.06.1974 by which the vendor had acquired title was also handed over to the petitioner's father. Therefore, he submits that Trial Court could not have directed petitioner/Court witness to produce original Will and to give evidence. Learned counsel for the petitioner/Court witness would submit that suit of the respondent No.1/plaintiff against respondent No.2/defendant is one for eviction and possession of the suit schedule property to the plaintiff by way of mandatory injunction and for an enquiry in respect of damages for use -4- NC: 2023:KHC:39877 WP No. 5493 of 2023 and occupation of the suit schedule premises. It is submitted that for inter-se dispute between respondent Nos.1 and 2 in relation to the suit schedule property, petitioner has nothing to do with the same and petitioner cannot be directed to produce title documents relating to his property. Moreover, he submits that certified copy of the Will is marked as Exhibit. Therefore, there is no necessity for producing original Will. Further, learned counsel would place reliance on Section 130 of the Indian Evidence Act, 1872 (for short,, 'Evidence Act') and submits that it would not permit to compel a witness who is not a party to a suit to produce his title deeds to any property, or any document by virtue of which he holds any property as pledgee or mortgagee, or any document the production of which might tend to criminate him, unless he has agreed in writing to produce them with the person seeking the production of such deeds or some person through whom he claims. Thus, placing reliance on Section 130 of the Evidence Act, learned counsel would pray for allowing the writ petition.
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NC: 2023:KHC:39877 WP No. 5493 of 2023
4. Per contra, learned counsel Sri.M.Aswathanarayana Reddy for respondent No.1/plaintiff would support the order passed by Trial Court and submits that Will dated 20.06.1974 consists of composite property and the petitioner's father purchased portion of the property described in the Will under sale deed dated 30.10.2003 from the sister of plaintiff's father and as such, petitioner/Court witness cannot claim the Will which is in his possession as title document relating to his property only and he would submit that the Will also relates to the property of the plaintiff i.e., suit schedule property. Further, learned counsel invites attention of this Court to order sheet dated 09.12.2022 and points out that witness i.e., petitioner herein had agreed to produce the Will and had taken time to produce the same, which is recorded by Trial Court. Therefore, he submits that the petitioner cannot take protection under Section 130 of the Evidence Act. Thus, he prays for dismissal of the writ petition.
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NC: 2023:KHC:39877 WP No. 5493 of 2023
5. Having heard the learned counsel appearing for the parties and on perusal of the writ petition papers, the only point which falls for consideration is as to, "Whether the Trial Court is justified in issuing witness summons to petitioner and directing him to produce Will dated 20.06.1974?"
In the facts and circumstances of the case, Trial Court is justified in issuing witness summons to the petitioner directing him to produce Will dated 20.06.1974.
6. Suit of the plaintiff i.e., respondent No.1 against respondent No.2/defendant is one seeking vacant possession and for enquiry with respect to damages. During the course of evidence of respondent No.1/plaintiff, plaintiff filed application under Order XVI Rule 1 and 6 of CPC praying to issue witness summons to the petitioner i.e., Mr.Sudhakar Rao S/o Sri.K.Sankar Rao to produce original registered Will dated 20.06.1974. Affidavit enclosed to the application would indicate that original registered Will was handed over to K.Venkateshwarara -7- NC: 2023:KHC:39877 WP No. 5493 of 2023 Rao and brothers, by plaintiff's sister-in-law while selling her share in their favour. It is stated that petitioner/Sri.K.Sudhakar Rao is one of the purchasers of property of plaintiff's sister-in-law. It is submitted that Will consists of composite property and on division, sharers i.e., brothers and sister-in-laws sold the property to various persons. At the time of sale, original registered Will was handed over to the petitioner/Sri.K.Sudhakar Rao. Therefore, Will is in respect of entire property and a portion of property described in the Will is purchased by petitioner/Sri.K.Sudhakar Rao. Petitioner cannot contend that original Will which is with him is in respect of property purchased by him, but it pertains to the composite property. Therefore, he cannot take advantage of Section 130 of the Evidence Act. If the property mentioned in the Will was entirely purchased by petitioner/Sri.K.Sudhakar Rao, then he could have taken advantage of Section 130 of the Evidence Act.-8-
NC: 2023:KHC:39877 WP No. 5493 of 2023
7. Further, Section 130 of the Evidence Act state that if the person or witness agrees in writing to produce the document in question, then the Court could direct production of said document. In the case on hand, petitioner/Court witness appeared before the Court on 09.12.2022 and prayed time to produce the Will. The order sheet is also signed by the petitioner/Sri.K.Sudhakar Rao. Thus, when petitioner has appeared before the Court and prayed time to produce the Will, it is consent in writing to produce the document. When the Court records in its order sheet the statement of petitioner/Court witness, it is as good as petitioner/Court witness's consenting to produce the document in writing.
There is no merit in any of the contentions raised. Accordingly, writ petition stands rejected.
Sd/-
JUDGE NC CT:bms