Karnataka High Court
Smt Nagarathna Niranjan vs The Bengaluru Development Authority on 17 June, 2020
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
W.P.No.26834 of 2017
1 C/W
W.P. No.26835 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF JUNE, 2020
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO.26834 OF 2017
C/W
WRIT PETITION NO.26835 OF 2017(GM-CPC)
IN WRIT PETITION NO.26834 OF 2017:
BETWEEN:
1. SMT. NAGARATHNA NIRANJAN
D/O LATE B P NAGARAJAMURTHY
W/O NIRANJAN P
AGED ABOUT 67 YEARS
OCC: BUSINESS
R/A NO.17, 1ST CROSS, MADHAVANAGAR
BENGALURU-560001
2. SRI R M CHANDRASHEKAR
S/O K MADAPPA
AGED ABOUT 40 YEARS
R/A 'NAGAVAJRA
NES EXTENSION, MALAVALLI
MANDYA DISTRICT-571430
3. SMT SHEELA
W/O NANJUNDAPPA
AGED ABOUT 50 YEARS
4. SRI R N GIRISH
S/O NANJUNDAPPA
AGED ABOUT 30 YEARS
5. SRI R N MAHESH
S/O NANJUNDAPPA
AGED ABOUT 28 YEARS
W.P.No.26834 of 2017
2 C/W
W.P. No.26835 of 2017
6. SRI R N YOGESH
S/O NANJUNDAPPA
AGED ABOUT 32 YEARS
7. SRI NANJUNDAPPA
S/O KARIYAPPA
AGED ABOUT 60 YEARS
PETITIONERS NO. 3 TO 7 ARE
R/A HEGGODLU, MARGOWDANAHALLI
HALAGUR HOBLI, MALAVALLI TALUK
MANDYA DISTRICT.
8. SRI NAVEEN N
S/O NIRANJAN P
AGED ABOUT 28 YEARS
9. SRI NAREN N
S/O NIRANJAN P
AGED ABOUT 26 YEARS
PETITIONERS NO. 8 AND 9 ARE
R/A NO.17, 1ST CROSS
MADHAVANAGAR
BENGALURU-01 ...PETITIONERS
(BY SRI. A MADHUSUDHANA RAO, ADVOCATE)
AND:
1. THE BENGALURU DEVELOPMENT AUTHORITY
T. CHOWDAIAH ROAD, KUMARA PARK EAST
BENGALURU-560020
REP. BY ITS COMMISSIONER
2. KUM. MEENAKSHI P SHARAN
D/O SRI. PRABHU SHARAN
AGED ABOUT 28 YEARS
3. SRI. PRABHU SHARAN
S/O CHANNABASAPPA
AGED ABOUT 43 YEARS
W.P.No.26834 of 2017
3 C/W
W.P. No.26835 of 2017
RESPONDENTS NO.2 AND 3 ARE
R/A NO.305, 'HOYSALA APARTMENT'
CUNNINGHAM CRESCENT
BENGALURU-560052
4. SRI R. M. SUNDRESH
S/O K MADAPPA
AGED ABOUT 35 YEARS
SINCE DEAD BY LRS
4(a). SMT. SHASHI SUNDARESH
W/O LATE SUNDARESH
AGED ABOUT 46 YEARS
4(b) KUM. APEKSHA
D/O LATE SUNDARESH
AGED ABOUT 22 YEARS
BOTH ARE R/AT KALPATHARU
NES EXTENSION, MALAVALLI
MANDYA DISTRICT - 571 430
5. SRI. R. M. VEERENDRA KUMAR
S/O K MADAPPA
AGED ABOUT 37 YEARS
R/A HEGGODLU
MAREGOWDANAHALLI
HALGUR HOBLI, MALAVALLI TALUK
MANDYA DISTRICT-571 430
6. SRI. K. MADAPPA
S/O KARIYAPPA
AGED ABOUT 64 YEARS
R/A NES EXTENSION
MALAVALLI
MANDYA DISTRICT-571 430
7. SMT. PUSHPA SHARAN
W/O PRABHU SHARAN
AGED ABOUT 52 YEARS
R/A NO.305, HOYSALA APARTMENT
CUNNINGHAM CRESCENT
BENGALURU-560 052 ... RESPONDENTS
W.P.No.26834 of 2017
4 C/W
W.P. No.26835 of 2017
(BY SRI. M.N. RAMANJANEYA GOWDA, ADVOCATE FOR R1;
SRI. R.B. SADASHIVAPPA, ADVOCATE FOR R2, R3 AND R7;
SRI. C.N. KAMATH & VINAYAK KAMATH, ADVOCATES
FOR LR OF R4 AND R6;
R5-SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE IMPUGNED ORDER DATED 13.6.2017 AT ANNEX-F
PASSED BY THE LEARNED XXVII ADDL. CITY CIVIL JUDGE,
BANGALORE ON APPLICATION FILED UNDER ORDER 11 RULE 5
CPC IN O.S.4975/2003 ALLOW THIS W.P. WITH COSTS.
****
IN WRIT PETITION NO.26835 OF 2017:
BETWEEN:
1. SMT. NAGARATHNA NIRANJAN
D/O LATE B P NAGARAJAMURTHY
W/O NIRANJAN P
AGED ABOUT 67 YE ARS
OCC: BUSINESS
R/A NO.17, 1ST CROSS, MADHAVANAGAR
BENGALURU-560001
2. SRI. R. M. CHANDRASHEKAR
S/O K MADAPPA
AGED ABOUT 40 YEARS
R/A 'NAGAVAJRA
NES EXTENSION, MALAVALLI
MANDYA DISTRICT-571430
3. SMT. SHEELA
W/O NANJUNDAPPA
AGED ABOUT 50 YEARS
4. SRI. R. N. GIRISH
S/O NANJUNDAPPA
AGED ABOUT 30 YEARS
W.P.No.26834 of 2017
5 C/W
W.P. No.26835 of 2017
5. SRI. R. N. MAHESH
S/O NANJUNDAPPA
AGED ABOUT 28 YEARS
6. SRI. R. N. YOGESH
S/O NANJUNDAPPA
AGED ABOUT 32 YEARS
7. SRI. NANJUNDAPPA
S/O KARIYAPPA
AGED ABOUT 60 YEARS
PETITIONERS NO. 3 TO 7 ARE
R/A HEGGODLU, MARGOWDANAHALLI
HALAGUR HOBLI, MALAVALLI TALUK
MANDYA DISTRICT.
8. SRI. NAVEEN N
S/O NIRANJAN P
AGED ABOUT 28 YEARS
9. SRI. NAREN N
S/O NIRANJAN P
AGED ABOUT 26 YEARS
PETITIONERS NO. 8 AND 9 ARE
R/A NO.17, 1ST CROSS
MADHAVANAGAR
BENGALURU-01 ...PETITIONERS
(BY SRI. A MADHUSUDHANA RAO, ADVOCATE)
AND:
1. THE BENGALURU DEVELOPMENT AUTHORITY
T CHOWDAIAH ROAD, KUMARA PARK EAST
BENGALURU-560020
REP BY ITS COMMISSIONER
2. KUM. MEENAKSHI P SHARAN
D/O SRI PRABHU SHARAN
AGED ABOUT 28 YEARS
W.P.No.26834 of 2017
6 C/W
W.P. No.26835 of 2017
3. SRI. PRABHU SHARAN
S/O CHANNABASAPPA
AGED ABOUT 43 YEARS
RESPONDENTS NO.2 AND 3 ARE
R/A NO.305, 'HOYSALA APARTMENT'
CUNNINGHAM CRESCENT
BENGALURU-560052
4. SRI R. M. SUNDRESH
S/O K MADAPPA
AGED ABOUT 35 YEARS
SINCE DEAD BY LRS
4(a). SMT. SHASHI SUNDARESH
W/O LATE SUNDARESH
AGED ABOUT 46 YEARS
4(b) KUM. APEKSHA
D/O LATE SUNDARESH
AGED ABOUT 22 YEARS
BOTH ARE R/AT KALPATHARU
NES EXTENSION, MALAVALLI
MANDYA DISTRICT - 571 430
5. SRI. R. M. VEERENDRA KUMAR
S/O K MADAPPA
AGED ABOUT 37 YEARS
R/A HEGGODLU
MAREGOWDANAHALLI
HALGUR HOBLI, MALAVALLI TALUK
MANDYA DISTRICT-571 430
6. SRI. K. MADAPPA
S/O KARIYAPPA
AGED ABOUT 64 YEARS
R/A NES EXTENSION
MALAVALLI
MANDYA DISTRICT-571 430
W.P.No.26834 of 2017
7 C/W
W.P. No.26835 of 2017
7. SMT. PUSHPA SHARAN
W/O PRABHU SHARAN
AGED ABOUT 52 YEARS
R/A NO.305, HOYSALA APARTMENT
CUNNINGHAM CRESCENT
BENGALURU-560 052 ... RESPONDENTS
(BY SRI. M.N. RAMANJANEYA GOWDA, ADVOCATE FOR R1;
SRI. R.B. SADASHIVAPPA, ADVOCATE FOR R2, R3 AND R7;
R4 TO 6- VIDE COURT ORDER DATED 29.06.2017
NOTICE TO THEM DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE IMPUGNED ORDER DATED 13.6.2017 FOUND AT
ANNEX-F PASSED BY THE LEARNED XXVII ADDL. CITY CIVIL
JUDGE, BANGALORE ON APPLICATION FILED UNDER ORDER 11
RULE 5 CPC IN O.S.4975/2003 ALLOW THIS WRIT PETITION
WITH COSTS AND GRANT SUCH OTHER RELIEFS AS THIS
HON'BLE COURT DEEM FIT TO GRANT IN THE CIRCUMSTANCES
OF THE CASE.
*****
THESE WRIT PETITIONS COMING ON FOR
PRELIMINARY HEARING IN 'B' GROUP AND HAVING BEEN
RESERVED FOR ORDERS ON 03.06.2020, THIS DAY, THROUGH
VIDEO CONFERENCE THE COURT PRONOUNCED THE
FOLLOWING:
ORDER
1. The petitioners who are the plaintiffs in O.S.No.4975/2003 pending before the City Civil Court, Bengaluru, have filed the above petitions aggrieved by the rejection of the applications filed by them under Order 11 Rule 5 of Civil Procedure Code. W.P.No.26834 of 2017
8 C/W W.P. No.26835 of 2017 1.1. WP No.26834 of 2017 arises out of the rejection of an application filed by the plaintiffs seeking for a direction to defendant No.7 therein to produce the original registered transfer deed dated 27.10.2000 bearing registration No.567/2001.
1.2. WP No.26835 of 2017 arises out of the rejection of an application filed by the plaintiffs seeking for a direction to defendant No.1 to produce four documents as mentioned in the Application.
2. Since both the petitions arise out of a common order, with the consent of learned counsel for the parties, the petitions are clubbed together and disposed of by this common order.
3. For the sake of convenience, parties are referred to by their rank in the trial Court.
W.P.No.26834 of 2017
9 C/W W.P. No.26835 of 2017
4. The brief facts of the case is that 4.1. The plaintiffs have filed a suit in OS.No.4975/2003 seeking for a declaration that the plaintiffs and defendant Nos.4 to 6 and defendant No.7 are the absolute owners of the plaint schedule property and for the consequent declaration of the sale deed dated 13.05.2002 executed in respect of the plaint schedule property to be illegal, null and void, as also for further direction to defendant No.2 to quit and deliver the vacant possession of the plaint schedule property to the plaintiffs. 4.2. It is not in dispute that the schedule property was owned by late B.P.Nagaraja Murthy who was an Advocate and Ex-Member of Parliament (Rajya Sabha) and an Ex-Member of Mysore Legislative Assembly.
W.P.No.26834 of 2017
10 C/W W.P. No.26835 of 2017 4.3. The said B.P.Nagaraja Murthy expired on 06.10.1995 intestate leaving behind his wife Vajra Nagarajamurthy without any issues. 4.4. The plaintiffs alleged that B.P.Nagaraja Murthy and Vajra Nagarajamurthy had adopted 1st plaintiff and they also performed the marriage of 1st plaintiff as per the prevailing customs of the family with one P.Niranjan on 07.06.1970. 4.5. It is further alleged that late B.P.Nagaraja Murthy and Vajra Nagarajamurthy were residing in Malavalli. After the death of B.P.Nagaraja Murthy, there were several people closely related who were also living along with the family and helping the family in agricultural activities. One Sri.K.Madappa @ Mariswamy came and started living with late B.P.Nagaraga Murthy and looking after the agricultural land belonging to B.P.Nagaraja Murthy. Sri.K.Madappa @ Mariswamy was W.P.No.26834 of 2017 11 C/W W.P. No.26835 of 2017 treated as one of the family members. Sri.Prabhu Sharan who will be referred to later is the son-in-law of Sri.K.Madappa, so also the other defendants are related to said Sri. S K.Madappa in one way or the other.
4.6. Sri. B.P.Nagaraja Murthy died on 6.10.1995 and Smt. Vajra Nagarajamurthy died on 17.09.1997. Smt. Vajra Nagarajamurthy had executed a registered Will dated 9.07.1997 registered before the Sub-registrar, Malavalli bequeathing the entire family estate between the plaintiffs and defendants No.4 to 7 including the suit schedule property. 4.7. The suit schedule property was allotted by respondent No.1-Bangalore Development Authority (for short 'BDA') since he was an Ex- Member of Mysore Legislative Assembly and Ex-Member of Parliament. It is alleged that on the death of Sri. Nagaraja Murthy, mother of W.P.No.26834 of 2017 12 C/W W.P. No.26835 of 2017 the plaintiff No.1 had submitted necessary documents pertaining to the site to Sri. Prabhu Sharan, son-in-law of Sri. S.K.Madappa, since Sri. Prabhu Sharan who was working in the BDA. It is further alleged that taking undue advantage of those documents, Sri.Prabhu Sharan with an intention to grab the property and cheat the plaintiffs came out with a story of concocted Will executed by late Sri. B.P.Nagaraja Murthy in favour of the daughter of Sri. Prabhu Sharan viz., Kum. Meenakshi, defendant No.2 and on the basis of the same had sought for transfer of the Suit property in the name of defendant No.2.
4.8. The plaintiffs immediately on coming to know of the concocted Will and the intention of Sri. Prabhu Sharan got issued a notice dated 7.01.2002 through an advocate to BDA and requested the BDA not to issue absolute sale W.P.No.26834 of 2017 13 C/W W.P. No.26835 of 2017 deed in favour of defendant No.2, in pursuance of which BDA is stated to have issued an endorsement on 20.03.2002 intimating the plaintiff that since there are conflicting claims by two persons, the same would have to be decided by a Civil Court. The plaintiff had earlier submitted a letter on 23.11.2000 to the Deputy Secretary to the BDA requesting him to transfer the property in her favour as per the registered Will executed by her mother. An endorsement came to be issued by BDA on 18.12.2000 intimating the plaintiff, as also the mother of defendant No.2 that since there are two rival claimants and both the persons claiming their right over the suit property on the basis of the Will a Civil Court has to decide the matter. It is alleged that on the basis of the said endorsement the plaintiffs were under the belief that the BDA would not transfer the suit schedule property to the defendant No.2, W.P.No.26834 of 2017 14 C/W W.P. No.26835 of 2017 without a finding by the Civil Court, but by way of abundant caution had also submitted one more representation on 9.05.2002 requesting the Commissioner of BDA to direct the competent Officer not to effect the transfer. 4.9. In the meanwhile the plaintiff had also filed W.P.No.22578/2002 before this Court seeking for a direction to the BDA not to proceed on the representation made by defendant No.2; however, the same came to be withdrawn reserving liberty to approach the Civil Court. It is in pursuance of the same that the Suit in O.S. No.4975/2003 was filed seeking for the reliefs as stated supra.
4.10. Defendant No.7 being the mother of defendant No.2, filed her written statement stating that defendant No.2 is physically handicapped, and it is on account of the same that her great grandfather, i.e. Sri. B.P.Nagaraja Murthy had W.P.No.26834 of 2017 15 C/W W.P. No.26835 of 2017 executed a Will bequeathing the suit schedule property to defendant No.2 in order to take care of her financial interest and well being which has been mentioned in the said Will and as such she sought for dismissal of the Suit.
5. It is on the basis of the above pleadings; the parties went to trial. In the meanwhile, on the parties approaching this Court, this Court had directed the trial Court to dispose of the matter within a period of one year which expired in October 2016, and thereafter extension was granted by a period of six months which also expired on 27.04.2017.
6. It is at this stage when after evidence was led by all the parties and the matter was posted for final arguments, the plaintiffs had filed 6.1. an application under Order XI Rule 5 of CPC, seeking for a direction to defendant No.7 to produce the original registered transfer deed W.P.No.26834 of 2017 16 C/W W.P. No.26835 of 2017 dated 27.10.2000 bearing registration No.567/2000-01, 6.2. another application under Order XI Rule 5 of CPC, seeking for a direction to Defendant No.1 to produce the documents stated therein namely 6.2.1. Entire proceedings of BDA pertaining to allotment, change of Khatha, execution of Transfer of Deed, and also the registered sale deed in favour of Defendant No.2 pertaining to suit schedule property.
6.2.2. The Registered lease cum sale agreement dated 25.6.1992 executed by BDA (Defendant No.1) in favour of Sri.Nagarajamurthy.
6.2.3. Application for allotment of suit schedule site filed by Sri.Nagarajamurthy. W.P.No.26834 of 2017
17 C/W W.P. No.26835 of 2017 6.2.4. The copies of all the application/representation submitted by Defendant No.7 and also Defendant No.3 for the transfer of site and also for the execution of the register of sale deed.
7. Both the said applications were accompanied by an affidavit filed by plaintiff No.9, 7.1. In support of the first Application in the said affidavit, it is stated that DW-2, i.e. defendant No.7 during the course of cross-examination had admitted existence and custody of the original registered transfer deed dated 27.10.2000 bearing No.567/2000-01 and the said document was necessary for the purpose of proper adjudication of the controversy involved in the Suit and hence, the plaintiff requires the said document, towards which the Application was filed.
W.P.No.26834 of 2017
18 C/W W.P. No.26835 of 2017 7.2. Defendant No.7 filed her objections to the said Application contending that this Court had granted one year's of time commencing from 10.08.2013 which was extended by six months. However, the said period also expired on 27.04.2017 and during all those time plaintiff was not cooperating for the disposal of the case. She also contended that the document which was sought for was not one in dispute in the Suit and she further denied the existence of the said document as also the possession thereof with her and contended that the registered sale deed executed by the BDA in favour of defendant No.2 had already been produced and marked as document by defendant No.2 and on those grounds, she sought for dismissal of the said Application. 7.3. In support of the second Application in the said affidavit, it is stated that defendant No.1-
W.P.No.26834 of 2017 19 C/W W.P. No.26835 of 2017 BDA though made as a party to the proceedings has not filed any written
statement, has not made its stand clear and these documents being in the custody of defendant No.1-BDA, they being related to the property in question, ought to be directed to be produced.
7.4. The same was objected to by defendant No.1 by contending that all the documents which have been sought for in the Application are already before the Court. Defendant No.1-BDA went on to contend that on the execution of registered sale deed other prior documents become unnecessary, since the registered sale deed had already been produced and marked, there is no requirement to produce other documents. Defendant No.1-BDA further contended that there was no dispute as regards the documents sought to be produced. W.P.No.26834 of 2017
20 C/W W.P. No.26835 of 2017 Dispute was only as regards the WILL executed by late Shri. B.P.Nagaraja Murthy and filing of the Application was only to delay the proceedings.
8. The trial Court vide its separate orders both dated 13.06.2017 was pleased to reject the said applications.
8.1. The First Application was dismissed holding that the document sought to be produced does not touch upon the dispute and as per the say of defendant No.7, the document was not in possession or custody of defendant No.7. The trial Court was of the opinion that the subject matter of dispute in the Suit is only as regards the Will executed by late B.P.Nagaraja Murthy, hence the document is not relevant. The Application for production was filed at a belated stage. If at all the document was required, the plaintiff could have filed an W.P.No.26834 of 2017 21 C/W W.P. No.26835 of 2017 application at an earliest point of time. The Suit being one of the year 2003, remanded by this Court by fixing a time for disposal, the Application was filed at a belated stage and further that the plaintiff has not shown any valid reason for a direction to be issued to the defendant No.7 to produce the document sought for.
8.2. The second Application was dismissed holding that the Application was filed belatedly only to protract the proceedings. The only document disputed was the Will and all other documents were not relevant for the matter and considering that the matter was pending from the year 2003, the plaintiffs are protracting the matter. There having been a direction issued by this Court to expeditiously dispose of the suit in a time bound manner, the plaintiffs are only delaying the matter. The trial Court W.P.No.26834 of 2017 22 C/W W.P. No.26835 of 2017 further held that if the plaintiffs had indeed felt that the documents were relevant, they could have always obtained the documents from respondent No.1-BDA, a statutory body and produce the same. The plaintiffs not having done anything in this regard for nearly 14 years, the Application as filed is only to protract the proceedings.
9. Thus, aggrieved by the said orders the plaintiffs are before this Court 9.1. In WP 26834 of 2017 it is contended that once there is an admission made by the 7th defendant as regards the existence and custody of the document during the course of cross-examination, there ought to have been a direction issued for production of the same. The trial Court ought not to have examined the relevancy or otherwise of the document sought for production. The said document was very W.P.No.26834 of 2017 23 C/W W.P. No.26835 of 2017 much necessary for adjudicating the matter and therefore, refusal by the trial Court to direct such production is causing grave harm and injury to the plaintiffs. It is on the above grounds that the plaintiffs have sought for quashing of the order dated 13.06.2017 and for allowing of the same.
9.2. In W.P.No.26835 of 2017, it is contended that the trial Court ought not to have rejected the Application filed by the petitioner only on the ground that the time fixed by this Court for disposal of the Suit had expired, the petitioners have been adjudicating their case without taking any unnecessary adjournments and the Application as filed was bonafide for the purpose of summoning the documents absolutely necessary for the purpose of proving their case and to discharge the burden cast upon them. Respondent No.1-BDA has W.P.No.26834 of 2017 24 C/W W.P. No.26835 of 2017 not filed its written statement or answered any of the allegations made against respondent No.1-BDA. The document sought for production are in the custody and exclusive control of respondent No.1-BDA. These documents are not available elsewhere for the petitioners to produce. If respondent No.1- BDA was not directed to produce the documents, the petitioners would not have any access to those documents. The said documents when produced would establish the various surrounding circumstances and be relevant for adjudicating the matter in dispute. Hence, the order dated 13.06.2017 rejecting the Application is required to be quashed and the said Application to be allowed.
10. Sri. A.Madhusudana Rao, learned counsel appearing for the petitioners in both the Writ Petitions submitted that:
W.P.No.26834 of 2017
25 C/W W.P. No.26835 of 2017 10.1. Defendant No.7/DW-2 has admitted the existence and custody of the document sought for production;
10.2. The transfer deed relates to the property, subject matter of the dispute, hence is relevant;
10.3. The documents sought for from BDA also touch upon the matters in controversy, they not only relate to the property in dispute but are also documents which relate to the transfer of the suit schedule property by the Defendant No.1 BDA in favour of 2nd Defendant.
10.4. That the document on production would throw light on the controversy, the subject matter of the Suit;
10.5. The trial Court as a matter of course ought to have allowed the applications and directed for production of the documents sought for on the W.P.No.26834 of 2017 26 C/W W.P. No.26835 of 2017 mere filing of an application for production thereof.
11. Per contra, Sri.R.B.Sadashivappa, learned counsel appearing for the contesting respondents in WP No. 26834 of 2017 submitted that:
11.1. That the admission recorded in the cross-
examination is by mistake in pursuance of a wrong question consisting incorrect details of the registered document;
11.2. There is no such transfer deed dated 27.10.2000 registered as document NO.567/2000-01;
11.3. Defendant No.7 is not in possession of this non-existent document;
11.4. If at all the plaintiffs require documents and believe existence of the document, the plaintiffs could have applied for and obtained W.P.No.26834 of 2017 27 C/W W.P. No.26835 of 2017 certified copy of the document from the jurisdictional Sub-registrar;
11.5. The Application is belated; 11.6. The plaintiffs now being under the belief that the plaintiffs would not succeed in the Suit are trying to protract the matter;
11.7. The transfer deed by BDA in favour of the Defendant No.2 is a different one, which has already been produced. There are no reliefs claimed in regard to the document sought for production. As regards the document in respect of which relief has been sought for has already been produced.
11.8. The Application sought for from respondent No.1-BDA have already been produced by the plaintiff. There are no other documents which are required to be produced. The plaintiffs were aware of the existence of these documents even at the time of filing the Suit. W.P.No.26834 of 2017
28 C/W W.P. No.26835 of 2017 There are various references made by the plaintiffs in the plaint to the said documents. The Suit having been filed in the year 2003, it is unpardonable for the plaintiffs to have waited till the year 2017 to file the Application for production of the documents on the ground that they are relevant for the proceedings. The registered documents sought to be directed to be produced. Such a direction for production of registered documents cannot be ordered.
11.9. On the basis of the above submissions, he seeks for dismissal of the writ petition.
12. Sri.Ramanjaneya Gowda, learned counsel appearing for BDA the contesting respondent in WP No. 26835 of 2017 submitted that all the documents pertaining to the sale deed executed in favour of defendant No.2 have been produced, in fact the plaintiffs have already produced the correspondence and the W.P.No.26834 of 2017 29 C/W W.P. No.26835 of 2017 endorsements issued by the BDA. The Application is filed only to drag the BDA into a private controversy and/or dispute between the plaintiffs and other defendants and as such, he submits that respondent No.1-BDA would abide by any orders passed by this Court.
13. Heard Sri.A.Madhusudhana Rao, learned counsel for petitioners, Sri.M.N.Ramanjaneya Gowda, learned counsel for respondent No.1, Sri.R.B.Sadashivappa, learned counsel for respondents No.2, 3 and 7, Sri.C.N.Kamath and Sri.Vinayak Kamath, learned counsel for legal representatives of respondents No.4 and 6 in W.P.No.26834/2017 and heard Sri.A.Madhusudhana Rao, learned counsel for petitioners, Sri.M.N.Ramanjaneya Gowda, learned counsel for respondent No.1, Sri.R.B.Sadashivappa, learned counsel for respondents No.2, 3 and 7. Notice to respondents No.4 to 6 was dispensed with in W.P.No.26835/2017. Perused papers. W.P.No.26834 of 2017
30 C/W W.P. No.26835 of 2017
14. On the basis of the submissions which have been made, the points which would arise for determination by this Court are as under:
i) Whether on a mere filing of an application for production of documents, the Court would be required to direct production of the documents sought for?
ii) What are the factors that have to be taken into consideration by a Court while deciding an application for production of documents?
iii) Can a direction for production of documents be issued when the person seeking for such production could apply for and obtain copies of the said documents from the jurisdictional authorities either certified or under RTI?
iv) Are there any bonafides for the plaintiff in filing the applications for production of documents?
v) What order? W.P.No.26834 of 2017 31 C/W W.P. No.26835 of 2017 POINT NOs.1 and 2:
Both these points being related, they are taken up for consideration together:
15. The Apex Court in the case of M.L.Sethi -vs- Shri R.P.Kapur [(1972) 2 SCC 427] while dealing with what documents could be ordered to be produced has observed thus:
"6. We think that the High Court was wrong in holding that since the Application for discovery did not specify the documents sought to be discovered, the lower Court acted illegally in the exercise of its jurisdiction in ordering discovery. Generally speaking, a party is entitled to inspection of all documents which do not themselves constitute exclusively the other party's evidence of his case or title. If a party wants inspection of documents in the possession of the opposite party, he cannot inspect them unless the other party produces them. The party wanting inspection must, therefore, call upon the opposite party to produce the document. And how can a party do this unless he knows what documents are in the possession or power of the opposite party? In other words, unless the party seeking discovery knows what are the documents in the possession or custody of the opposite party which would throw light upon the question in controversy, how is it possible for W.P.No.26834 of 2017 32 C/W W.P. No.26835 of 2017 him to ask for discovery of specific documents? Order 11 Rule 12 provides:
"12. Any party may, without filing any affidavit, apply to the Court for an order directing any other party to any suit to make discovery on oath of the documents which are or have been in his possession or power, relating to any matter in question therein. On the hearing of such Application the Court may either refuse or adjourn the same, if satisfied that such discovery is not necessary, or not necessary at that stage of the Suit, or make such order, either generally or limited to certain classes of documents, as may, in its discretion, be thought fit: Provided that discovery shall not be ordered when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the Suit or for saving costs."
7. When the Court makes an order for discovery under the rule, the opposite party is bound to make an affidavit of documents and if he fails to do so, he will be subject to the penalties specified in Rule 21 of Order
11. An affidavit of documents shall set forth all the documents which are, or have been in his possession or power relating to the matter in question in the proceedings. And as to the documents which are not, but have been in his possession or power, he must state what has become of them and in whose W.P.No.26834 of 2017 33 C/W W.P. No.26835 of 2017 possession they are, in order that the opposite party may be enabled to get production from the persons who have possession of them (see Form No. 5 in Appendix C of the Civil Procedure Code). After he has disclosed the documents by the affidavit, he may be required to produce for inspection such of the documents as he is in possession of and as are relevant.
8. The High Court was equally wrong in thinking that in passing the order for discovery, the trial court acted illegally in the exercise of its jurisdiction as it deprived the respondent of his right to claim privilege for non-production of his pass book and personal accounts, because the stage for claiming privilege had not yet been reached. That would be reached only when the affidavit of discovery is made. Order 11 Rule 13 provides that every affidavit of documents should specify which of the documents therein set forth the party objects to produce for inspection of the opposite party together with the grounds of objection.
9. Nor do we think that the High Court was right in holding that the documents ordered to be discovered were not relevant to the inquiry. The documents sought to be discovered need not be admissible in evidence in the enquiry or proceedings. It is sufficient if the documents would be relevant for the purpose of throwing light on the matter in controversy. Every document which will throw any light on the case is a document relating to a matter in dispute in the proceedings, though it might not be W.P.No.26834 of 2017 34 C/W W.P. No.26835 of 2017 admissible in evidence. In other words, a document might be inadmissible in evidence yet it may contain information which may either directly or indirectly enable the party seeking discovery either to advance his case or damage the adversary's case or which may lead to a trial of enquiry which may have either of these two consequences. The word "document" in this context includes anything that is written or printed, no matter what the material may be upon which the writing or printing is inserted or imprinted. We think that the documents of which the discovery was sought, would throw light on the means of the respondent to pay court-fee and hence relevant."
16. The Apex Court once again in the case of Basangouda -v- DR.S.B.Amarkhed and others [(1992)2 SCC 612] while dealing with the Election Petition held as under:
"6. The diverse contentions give rise to the question whether the order of the High Court is legal. Under Section 87 of the Act the High Court, subject to the provision of the Act and the Rules, if any, made thereunder, shall try the election petition as if it is the trial of the Suit adopting as nearly as may be the procedure applicable to the Suit under the Code. Order XI Rule 14 CPC empowers discovery and inspection of the records and Rule 14 is as under:W.P.No.26834 of 2017
35 C/W W.P. No.26835 of 2017 "14. Production of Documents.-- It shall be lawful for the Court, at any time during the pendency of any suit, to order the production by any party thereto, upon oath, of such of the documents in his possession or power, relating to any matter in question in such Suit, as the Court shall think right;
and the Court may deal with such documents, when produced, in such manner as shall appear just."
7. The Court, therefore, is clearly empowered and it shall be lawful for it to order the production, by any party to the Suit, such documents in his possession or power relate to any matter in question in the Suit provided the Court shall think right that the production of the documents are necessary to decide the matter in question. The Court also has been given power to deal with the documents when produced in such manner as shall appear just. Therefore, the power to order production of documents is coupled with discretion to examine the expediency, justness and the relevancy of the documents to the matter in question. These are relevant consideration which the Court shall have to advert to and weigh before deciding to summoning the documents in possession of the party to the election petition. Xxxxxx."
17. This Court in Annaji Babaji Bhosle -vs- M/s Patson Agencies and Another in Civil Revision Petition No.1148/1981 DD 14.10.1981 has held that for the purpose of exercise of power under W.P.No.26834 of 2017 36 C/W W.P. No.26835 of 2017 Order 11 Rule 14 of CPC, two conditions have to be satisfied viz.:
17.1. The documents, the production of which is sought for, must be in the possession or power of the party against whom the direction is sought for, and 17.2. The documents must relate to the controversy involved in the Suit.
18. The Hon'ble Apex Court in the case of Union of India v. Ibrahim Uddin AND Another, (2012) 8 SCC 148 has held as under:
"21. Order 11 CPC contains certain provisions with the object to save expense by obtaining information as to material facts and to obtain admission of any fact which he has to prove on any issue. Therefore, a party has a right to submit interrogatories relating to the same matter in issue. The expression "matter" means a question or issue in dispute in the action and not the thing about which such dispute arises. The object of introducing such provision is to secure all material documents and to put an end to protracted enquiry with respect to document/material in possession of the other party. In such a fact situation, no adverse inference can be drawn W.P.No.26834 of 2017
37 C/W W.P. No.26835 of 2017 against a party for non-production of a document unless notice is served and procedure is followed.
22. Under Rule 14 of Order 11, the Court is competent to direct any party to produce the document asked by the other party which is in his possession or power and relating to any material in question in such Suit. Rule 15 Order 11 provides for inspection of documents referred to in the pleadings or affidavits. Rule 18 thereof empowers the Court to issue order for inspection. Rule 21 thereof provides for very stringent consequences for non-compliance with the order of discovery, as in view of the said provisions in case the party fails to comply with any order to answer interrogatories or for discovery or inspection of documents, he shall, if he is a plaintiff, be liable to have his Suit dismissed for want of prosecution and if he is a defendant, to have his defence, if any, struck out and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may apply to the Court for an order to that effect.
23. Thus, in view of the above, the Suit may be dismissed for non-compliance with the aforesaid orders by the plaintiff and the plaintiff shall also be precluded from bringing a fresh suit on the same cause of action. Similarly, the defence of the defendant may be struck off for non-compliance with such orders.
W.P.No.26834 of 2017
38 C/W W.P. No.26835 of 2017
24. Thus, in view of the above, the law on the issue can be summarised to the effect that the issue of drawing adverse inference is required to be decided by the Court taking into consideration the pleadings of the parties and by deciding whether any document/evidence, withheld, has any relevance at all or omission of its production would directly establish the case of the other side. The Court cannot lose sight of the fact that burden of proof is on the party which makes a factual averment. The Court has to consider further as to whether the other side could file interrogatories or apply for inspection and production of the documents, etc. as is required under Order 11 CPC. Conduct and diligence of the other party is also of paramount importance. Presumption of adverse inference for non-production of evidence is always optional and a relevant factor to be considered in the background of facts involved in the case. Existence of some other circumstances may justify non- production of such documents on some reasonable grounds. In case one party has asked the Court to direct the other side to produce the document and the other side failed to comply with the Court's order, the Court may be justified in drawing the adverse inference. All the pros and cons must be examined before the adverse inference is drawn. Such presumption is permissible, if other larger evidence is shown to the contrary.
25. In the instant case, admittedly, Respondent 1-plaintiff during the pendency of his Suit had made an application before the authorities under the control of the W.P.No.26834 of 2017 39 C/W W.P. No.26835 of 2017 appellant-Defendant 1 to make the inspection. However, he was not permitted to have any inspection. Respondent 1-plaintiff did not submit any interrogatory statement or an application for making inspection or for production of the document as provided under Order 11 CPC. In such a fact situation, in view of the law referred to hereinabove, it is not permissible for the first appellate Court or the High Court to draw any adverse inference against the appellant-Defendant.
19. I have already referred to the dicta of the Hon'ble Apex Court in M.L.Sethi's case and Basanagoud's case (supra). Thus from the above, what emerges is that the Court dealing with an application under Order XI Rule 14 would have to take into consideration the following:
19.1. The documents, the production of which is sought for, must be in the possession or power of the party against whom the direction is sought for.
19.2. The documents must relate to the controversy involved in the Suit and are necessary to decide the matter in question.W.P.No.26834 of 2017
40 C/W W.P. No.26835 of 2017 19.3. The expediency, justness and the relevancy of the documents to the matter in question, hence if the Application is filed belatedly and or if the document sought for production is not relevant the Application would have to be dismissed.
19.4. Power to be exercised under Order XI Rule 14 of CPC is discretionary and that discretion has to be exercised judiciously.
20. Thus, from the above it is clear that a Court while dealing with an application for production of documents would be required to consider whether the documents sought for production are related to any matter in question in the Suit and are necessary to decide the matter in question, the Court would also have to consider the expediency, justness and the relevancy of the documents to the matter in question, hence if the Application is filed belatedly and or if the document sought for production is not W.P.No.26834 of 2017 41 C/W W.P. No.26835 of 2017 relevant the Application would have to be dismissed.
Therefore, on the mere filing an application under for production of document/s, the Court would not be required to direct production of documents. Power to be exercised by the Court is discretionary and that discretion has to be exercised properly and reasonably taking into account whether the document would be relevant in terms of being required for the purposes of deciding the matter in controversy.
Point No.3
21. As discussed above, for the purposes of a direction to be issued for production of a document, the said document has to be in custody of the person from whom the same is sought for production. This would also mean that apart from the person having custody of the document, the said document is not available elsewhere. Thus, I am of the considered opinion that if the said document is available elsewhere and W.P.No.26834 of 2017 42 C/W W.P. No.26835 of 2017 the party seeking for production of the document can obtain the same by applying for a certified copy and/or under the Right to Information Act, 2005 ('RTI Act' for short), there would be no requirement for a further direction to be issued for a party to produce the document. The party seeking production of document could always apply for and obtain a certified copy of the same and produce it. The registered document is a public document and certified copy thereof is admissible in evidence as secondary evidence.
22. In terms of RTI Act all citizens have been given the right to apply for and obtain the information which would include the copies of documents in terms of Section 3 of the RTI Act.
23. Section 2(f) of the RTI Act defines information as under:
"2(f) "information" means any material in any form, including records, documents, memos, W.P.No.26834 of 2017 43 C/W W.P. No.26835 of 2017 e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force;"
24. Section 4 of the RTI Act requires all public authorities or authorities subject to the RTI Act to maintain all the records in a proper and required manner and as also, furnish the same when applied for in terms of Section 6.
25. A party to the proceedings if having the opportunity, ability and recourse to either obtain the certified copies of the public documents and/or apply for and obtain the same under the RTI act, in my considered opinion such a party cannot be permitted to file an application for production of documents and seek for production of documents when such a party had access to the document in the public domain. This of course is subject to the exception where there is a dispute relating to the signatures and/or the like W.P.No.26834 of 2017 44 C/W W.P. No.26835 of 2017 which would require production of the original document and the production of certified copy would not serve the purpose of justice, in such circumstances after the party produces the certified copy of the document or that obtained under RTI could demonstrate the requirement of production of Original of the document and seek for such order, which could be considered by the court. POINT No.4:
26. In W.P.No.26834/2017 the petitioners who are the plaintiffs had challenged the rejection of the Application filed by the petitioners for a direction to defendant No.7 to produce the original registered transfer deed dated 27.10.2000 bearing document No.567/2000-01. The said Application has been filed on the ground that defendant No.7 (DW-2) during the course of her cross examination had admitted that certain of the original documents including the registered transfer deed dated 27.10.2000 as W.P.No.26834 of 2017
45 C/W W.P. No.26835 of 2017 document No.567/2000-01 was in her possession. It is on this basis that the petitioners contend that the said document relating to the schedule property is relevant for these proceedings and therefore, defendant No.7 (DW-2) having admitted the custody of the said document, the direction is sought for production.
27. It is the case of the petitioners that the said document is in the custody of defendant No.7. It is not that the petitioners have disputed the existence of the documents and or any other aspect relating thereto. It is also not in dispute that the said document is a registered document since the petitioner has categorically stated that it is a registered document and identifies the same to be registered as document No.567/2000-01.
28. Though the original transfer deed would be primary evidence in terms of Section 62 of Indian Evidence Act, 1872 ('IE Act', for short), in terms of Section 63 W.P.No.26834 of 2017 46 C/W W.P. No.26835 of 2017 a certified copy of the said document could be marked as secondary evidence. In terms of Section 74(2) of IE Act all public records of private documents would amount to a public document. Thus, the transfer deed being a public record of a private document would amount to a public document under Section 74 of IE Act. In terms of Section 76 of IE Act, however a public officer having custody of the public document shall allow the said document to be inspected, as also, on demand, furnish a copy of the same on payment of legal fees thereto together with a certificate written that it is a true copy of such document. In terms of Section 77 of IE Act, certified copy of a public document may be produced in proof of the contents of the public document.
29. In terms of Section 65(e) and (f) when the original is a public document, secondary evidence can be led by way of producing the certified copy thereof. Such W.P.No.26834 of 2017 47 C/W W.P. No.26835 of 2017 being the case, the document which is sought for being readily available for the petitioners to produce and mark in evidence, the filing of the Application for a direction to defendant No.7 (DW-2) to produce the said document was not permissible.
30. The said Application also having been filed at a belated stage when the matter was posted for final arguments and the Application having been rejected by a reasoned order dated 13.06.2017 and the same having been challenged before this Court and pending for the last three years, the entire proceedings before the trial Court has come to a standstill and the Suit has continued to remain pending on account of the dilatory tactics adopted by the petitioners. There is no bonafides also established by the petitioners, in that the petitioners could have during the pendency of these proceedings applied for and obtained certified copy of the said document, produce and mark the same in evidence W.P.No.26834 of 2017 48 C/W W.P. No.26835 of 2017 before the trial Court. The fact that the petitioners have got the above petition pending for long time and have not prosecuted the matter establishes the intention of the petitioners to delay the final decision in the Suit. Hence, I am of the considered opinion that the petitioners having an option to apply for and obtain certified copy, having not chosen to do to so, and having filed an application calling upon the defendants to produce the same, is not bonafide and therefore, the order of the trial Court dismissing the said Application having been based on sound judicial discretion does not require to be interfered with.
31. In W.P.No.26835/2017 the petitioners who are the plaintiffs had challenged the rejection of the Application filed by the petitioners for a direction to defendant No.1 to produce the originals of the documents stated therein. It is not in dispute that the documents which have been sought for are in the custody of defendant No.1. Defendant No.1 in its W.P.No.26834 of 2017 49 C/W W.P. No.26835 of 2017 objection has not denied custody of the said documents or their existence thereof.
32. The dispute in the present Suit is essentially between the plaintiffs and defendant No.7. Defendant No.1- BDA is a statutory authority which is obliged to act in terms of the statutory provisions and rules applicable thereto, i.e. to say in accordance with law. It is not for the BDA to take sides in a litigation between two private parties. The statutory authority only has to place true and correct facts without any embellishment for the Court seized of the matter to make a proper decision. Surprisingly, in the present matter, defendant No.1 has contested the Application by making arguments on merits of the matter between the Plaintiffs and contesting defendants and not on the legal provision, which is not so expected of a statutory organization like BDA.
33. As aforestated, when the petitioner could have applied under the provision of the RTI Act and W.P.No.26834 of 2017 50 C/W W.P. No.26835 of 2017 obtained certified copies of the said documents since they are public in nature and for the reasons as aforestated, certified copies could have been produced and marked in evidence. Petitioners have not done so. Be that as it may, on an application being made for production of documents, a statutory authority like the defendant No.1-BDA ought to have come forward to produce the documents sought for, and not to contest the Application on merits of the matter which was essentially a dispute between the plaintiffs and defendant No.7.
34. Were the petitioners to apply for under the RTI Act, obtain documents and produce the same or seek for a direction to defendant No.1-BDA to produce the same, there would be no material difference except that time limit for furnishing all documents under the RTI Act is 30 days whereas defendant No.1-BDA could have produced the documents forthwith. I am of the considered view that a State agency or W.P.No.26834 of 2017 51 C/W W.P. No.26835 of 2017 instrumentality of the State, statutory Board or so are to be administered in a transparent manner by making available the documents in its possession touching upon the matter in dispute in order to enable speedy and effective administration of justice. Defendant No.1 - BDA being a party to the proceeding cannot force the person seeking for copies of the documents in its custody, to apply for the same under RTI and produce it before a court of law.
35. Though there may be certain malafides on the part of the petitioners in filing an application seeking for production of documents when the matter was posted for final arguments seeking for a direction to the defendant No.1 to produce the documents, I am of the considered view that a direction to produce the documents would not have caused any detriment to the defendant No.1 since defendant No.1 is not a contesting party to the proceedings. W.P.No.26834 of 2017
52 C/W W.P. No.26835 of 2017
36. In the circumstances, taking into account the delay which has been caused in the adjudication of the matter, and in order to hasten the same in order to achieve a speedy resolution of the dispute, I pass the following:
ORDER
i) W.P.No.26834/2017 is dismissed. The order dated 13.6.2017 passed by XXVII Addl. City Civil Judge, Bengaluru dismissing the Application filed by the plaintiffs under Order XI Rule 5, to direct defendant No.7 to produce the original registered transfer deed dated 27.10.2000, is not interfered with.
ii) W.P.No.26835/2017 is partly allowed. The order dated 13.06.2017 passed by the XXVII Addl. City Civil Judge, Bangalore, (CCH-9) in O.S.4975/2003 is hereby quashed. The Application wrongly filed under Order XI Rule 5 to direct defendant No.1-BDA to produce W.P.No.26834 of 2017 53 C/W W.P. No.26835 of 2017 documents, is partly allowed. Defendant No.1- BDA is directed to produce the documents detailed at item Nos.3 and 4 of the Application. Defendant No.1-BDA is also directed to produce the documents detailed at item No.1 of the Application except the registered sale deed found mention therein. Registered document found mention at item Nos.1 and 2 of the Application cannot be directed to be produced. Petitioners are free to apply for, obtain and produce the certified copies thereof.
iii) Defendant No.1-BDA is directed to produce the documents detailed item No.1, 3 and 4 of the said Application except the registered documents found mention in item No.1 and 2 of the said Application.
iv) The registered sale deed mentioned in item No.1 of the said Application and the registered lease-cum-sale agreement dated 25.06.1992 W.P.No.26834 of 2017 54 C/W W.P. No.26835 of 2017 mentioned in item No.2 of the said Application are registered documents, as afore stated the petitioners would be free to apply for, obtain certified copies thereto and produce the same before the trial Court.
v) Parties to bear their respective costs.
Sd/-
JUDGE ln