Karnataka High Court
Sri Fiaz Ahmed vs Sri Ajaz Ahmed on 2 January, 2017
Equivalent citations: 2017 (2) AKR 43
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JANUARY, 2017
BEFORE
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
WRIT PETITION Nos.42771-42772/2015 (GM -CPC)
BETWEEN:
1. SRI. FIAZ AHMED,
AGED ABOUT 55 YEARS,
S/O SRI. SYED ABDUL HAMID,
(BENEFIT OF SENIOR CITIZEN
NOT CLAIMED)
2. SMT. SHAKIRA AHMED,
AGED ABOUT 45 YEARS,
W/O SRI. FIAZ AHMED,
BOTH ARE RESIDING AT NO.518,
2ND BLOCK, 1ST STAGE,
H B R Layout,
BANGALORE - 560 043. ... PETITIONERS
(BY SRI: ANAND K.T., ADVOCATE)
AND:
SRI. AJAZ AHMED
S/O LATE FAYAZ AHMED,
PROPRIETOR OF NATIONAL CONSTRUCTIONS,
NO.503, 21ST CROSS,
1ST BLOCK , R.T. NAGAR,
BANGALORE - 560 032. ... RESPONDENT
(BY SRI: S.Z.A. KHURESHI, ADVOCATE)
*****
2
THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227
OF CONSTITUTION OF INDIA PRAYING TO CALL FOR THE
RECORDS IN O.S.NO.7635 OF 2012 ON I.A.NO.4 & 5 PASSED
BY THE HON'BLE XXXVIII ADDITIONAL CITY CIVIL & SESSION
JUDGE, (CCH NO.39) BANGALORE CITY, ORDER
DTD:27.08.2015 IS PRODUCED AT ANNEXURE-A AND ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
These writ petitions are listed for preliminary hearing in "B" Group along with an application (I.A.No.1/16) filed by the respondent for vacating the interim order dated 05/01/2016 granted by this court and subsequently extended on various dates.
2. The petitioners herein are defendant Nos.1 and 2 in O.S.No.7685/2012. That suit has been filed by the respondent/plaintiff seeking recovery of a sum of Rs.4,32,069/- along with interest at the rate of 12% p.a. on damages. After the filing of the written 3 statement issues were framed by the trial court. Thereafter, the plaintiff examined himself as PW.1. At the stage of his cross-examination, two applications were filed by the plaintiff: one, under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure, 1908, (CPC) and the other, under Order VII Rule 14(3) read with Section 151 of the CPC. By the impugned order dated 27/08/2015, the said applications have been allowed. Being aggrieved by the same, defendants in the suit have preferred these writ petitions.
3. I have heard learned counsel for the petitioners and learned counsel for the respondent and perused the material on record as well as the original documents which have been summoned from the trial Court.
4
4. Petitioners' counsel contended that the trial court was not right in allowing the said applications. Such an amendment of the plaint could not have been sought after the commencement of the evidence. The respondent plaintiff did not advert to the agreement dated 23/07/2009 at the time of filing the plaint. The said agreement is not the subject matter of the cause of action for filing the suit. Therefore, the trial court ought not to have permitted to amend paragraph-3 of the plaint. He further submitted that when the respondent/plaintiff did not advert to the agreement dated 23/07/2009 along with the plaint and subsequently at a belated stage, at the time of cross-examination, an application could not have been filed for production of the photocopy of the agreement dated 23/07/2009. He submitted that the procedure contemplated under Section 65 of the Indian Evidence Act, 1872 has not been complied with in the instant 5 case and that the order passed on the said applications may be quashed.
5. Per contra, learned counsel for the respondent/plaintiff supporting the impugned order contended that the said order would not call for any interference. Having regard to the fact that the original agreement dated 23/07/2009 is in the custody of the defendants, an application was filed to amend the plaint to state the said fact. That another application was filed to produce that agreement and if necessary to let in secondary evidence. He submitted that since there was no reference made in the plaint, it was necessary to seek amendment of paragraph -3 of the plaint and thereafter to let in secondary evidence in that regard, if the necessity arose. He submitted that the court below was justified in allowing the said applications and that there is no merit in the writ petitions.
6
6. Having heard the learned counsel for the parties and on perusal of the material on record, it is noted that in paragraph-3 of the plaint, it is averred that the defendants entrusted certain civil work to the plaintiff on 22/07/2009. They have further averred that the plaintiff has completed the construction and handed over possession of the premises to the defendants as per the "agreed terms". But, while stating so, there is no categorical reference made to the agreement dated 23/07/2009. In support of the application filed under Order VI Rule 17 read with Section 151 of the CPC, plaintiff has submitted that due to inadvertence, reference was not made to the agreement dated 23/07/2009 and further copy of the said agreement was also not produced along with the plaint, as the original is with the defendants. It is in that regard that the amendment was sought. Having regard to the fact that the plaintiff has already stated 7 in paragraph -3 that the construction was carried out as per the agreed terms and it is only in amplification of that averment that the agreement was adverted to and sought to be incorporated by way of an amendment to the plaint. I find that the trial court was justified in allowing the said amendment so as to enable the plaintiff to advert to the agreement dated 23/07/2009 by way of an amendment of the plaint. Therefore, the order passed on an application (I.A.No.4) filed under Order VII Rule 17 r/w Section 151 of the CPC would not call for any interference.
7. So far as the second application filed under Order VII Rule 14(3) read with Section 151 of the CPC is concerned, it is noted that while amending the plaint, plaintiff has categorically stated that the original agreement dated 23/07/2009 is in the custody of the defendants. In that view of the matter, the plaintiff sought to produce only a photocopy of the 8 said agreement which bears the signature of plaintiff's concern and also the signatures of the plaintiff and one of the defendants. If the plaintiff had not stated in the plaint that the original agreement dated 23/07/2009 is in the custody of the defendant, then he would have to resort to the procedure contemplated under Section 65 of the Indian Evidence Act, 1972, ('The Evidence Act' for brevity) before producing any secondary evidence of the said agreement dated 23/07/2009. But, having regard to the amendment made to the plaint by which it is categorically stated that the original is with the defendants, plaintiff sought to produce only the copy of the said agreement and not the original of it by stating that the original of the document was in the custody of the defendants. Therefore, the plaintiff sought to produce a copy of the agreement dated 23/07/2009 and get the same marked in the evidence 9 of PW.1 by way of secondary evidence without complying with the procedure contemplated under Section 65 read with Section 66 of the Evidence Act.
8. Section 65 of the Evidence Act states that secondary evidence may be given of the existence, condition, or contents of a document in certain circumstances. One such circumstances is; when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it. In such cases, secondary evidence of the document is admissible. Section 66 speaks about the rules as to notice to produce the document, which contemplates that secondary evidence shall not be given unless the party proposing to give such 10 secondary evidence has previously given to the party in whose possession or power the document is or to his attorney or pleader such notice to produce it as is prescribed by law and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case. The proviso to Section 66 enumerates the circumstances under which the issuance of notice may be dispensed with. On a reading of the aforementioned proviso, it is noted that none of those circumstances exists in the present case. Therefore, the trial court could not have permitted the respondent/plaintiff to produce secondary evidence of the agreement dated 23/07/2009 so as to be marked during the course of plaintiff's deposition, although it bears the seal of plaintiff's firm as well as the signature of the plaintiff and one of the defendants, in the absence of there being any compliance with Section 65 read with 11 Section 66 of the Evidence Act. Therefore, the trial Court was not justified in allowing the application filed under VII Rule 14(3) read with Section 151 of the CPC as one being for production of secondary evidence. Order VII Rule 14(3) provides for a subsequent production of document i.e., the production of a document at a subsequent stage of the proceedings with permission of the court. All documents relied upon by the parties have to be produced 'at or before the settlement of issues' under Order XIII Rule 1. The consequence of non-production at that stage, all documents relied upon by the party, is stated in Order XIII Rule 2. The documents shall not be received on any subsequent stage of the suit unless the court is satisfied that there was sufficient reason for such non- production. This of course would exclude documents produced for cross-examination of the witnesses to the other party or handed over to a witness merely to 12 refresh his memory. In the instant case, it is pursuant to the amendment made to the plaint that the agreement dated 23/07/2009 was sought to be relied upon. When the amendment was allowed, then naturally, the document had to be allowed also. But the said document could not have been marked straight away by way of secondary evidence.
9. The said agreement is sought to be relied upon by the respondent/plaintiff in order to establish his claim over the defendants, but the plaintiff has stated that the original document is in the custody of the defendants. Therefore, if the plaintiff seeks to rely on that document, then he had to comply with the procedure contemplated under Section 65 read with Section 66 of the Evidence Act. The production of the said document i.e. photocopy of the agreement dated 23/07/2009 could not have been under the provisions of Order VII Rule 14(3) read with Section 151 of the 13 CPC for the marking of the same by way of secondary evidence. When the respondent/plaintiff has averred that the original agreement is in the custody of the defendants and sought to rely on the said agreement, then in order to produce the same, the procedure had to be complied with for the marking of the said document by way of secondary evidence. Therefore, the trial Court was not justified in allowing the application filed Under VII Rule 14(3) of the CPC and thereby direct the respondent/plaintiff to produce the photocopy of the agreement dated 23/07/2009 for the purpose of marking it in evidence. The order passed by the trial court is incorrect to that extent and hence that portion of the impugned order is modified. The respondent/plaintiff is at liberty to take steps under Section 65 read with Section 66 of the Evidence Act and thereafter having regard to the response of the defendants in the suit, the production of the 14 photocopy of the agreement dated 23/07/2009 which is sought to be produced by the respondent/plaintiff by way of secondary evidence shall be taken into consideration.
10. The writ petition is allowed to the limited extent in the aforesaid terms.
11. In view of the disposal of the writ petition, I.A.No.1/16 also stands disposed.
12. The stay granted by this court stands vacated.
Sd/-
JUDGE Msu.