Karnataka High Court
Sri. Nayaz Ahamed vs Sri. Basheer Ahamed Since Dead By His Lrs on 5 September, 2023
Author: S.G.Pandit
Bench: S.G.Pandit
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NC: 2023:KHC:31968
WP No. 17552 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S.G.PANDIT
WRIT PETITION NO. 17552 OF 2023 (GM-CPC)
BETWEEN:
SRI. NAYAZ AHAMED
S/O LATE ABDUL AZEEZ,
AGED ABOUT 47 YEARS,
R/AT H D KUMARASWAMY EXTENSION,
PAVAGADA TOWN, PAVAGADA TALUK,
TUMAKURU DISTRICT-572302.
...PETITIONER
(BY SRI. FAYAZ SAB B G, ADV.)
AND:
SRI. BASHEER AHAMED
SINCE DEAD BY HIS LRS
1. SMT SYEDA BANU,
Digitally signed by AGED ABOUT 66 YEARS,
A K CHANDRIKA W/O LATE BASHEER AHAMED,
Location: High RETIRED VILLAGE ACCOUNTANT,
Court of Karnataka
BEHIND HARBAL BEAUTY PARLOR,
BADDIHALLI MAIN ROAD (80 FEET ROAD)
KYATHASANDRA POST, TUMAKURU TALUK,
TUMAKURU DISTRICT-572104.
2. SMT. SHABANA BANU
AGED ABOUT 51 YEARS,
W/O ATHA ULLA,
D/O LATE BASHEER AHAMED,
RETIRED VILLAGE ACCOUNTANT,
BEHIND HARBAL BEAUTY PARLOR,
BADDIHALLI MAIN ROAD (80 FEET ROAD)
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NC: 2023:KHC:31968
WP No. 17552 of 2023
KYATHASANDRA POST,
TUMAKURU TALUK, TUMAKURU DISTRICT 572104.
3. SRI P B HANUL ULLA
AGED ABOUT 48 YEARS,
S/O LATE BASHEER AHAMED,
RETIRED VILLAGE ACCOUNTANT,
BEHIND HARBAL BEAUTY PARLOR,
BADDIHALLI MAIN ROAD (80 FEET ROAD)
KYATHASANDRA POST, TUMAKURU TALUK,
TUMAKURU DISTRICT 572104.
4. SRI P B MAUL ULLA
AGED ABOUT 46 YEARS,
S/O LATE BASHEER AHAMED,
RETIRED VILLAGE ACCOUNTANT,
BEHIND HARBAL BEAUTY PARLOR,
BADDIHALLI MAIN ROAD (80 FEET ROAD),
KYATHASANDRA POST, TUMAKURU TALUK,
TUMAKURU DISTRICT-572104.
5. SRI VAZEER AHAMMED
AGED ABOUT 59 YEARS,
S/O LATE ABDUL AZEEZ,
R/AT GOVERNMENT HIGHER URDU
PRIMARY SCHOOL ROAD,
UPPARAHALLI, TUMAKURU-572103.
6. SRI NAZEER AHAMMED
AGED ABOUT 45 YEARS,
S/O LATE ABDUL AZEEZ,
R/AT P G LAYOUT, P H COLONY,
OPPOSITE TO TILAK PARK POLICE STATION,
TUMAKURU- 572102.
...RESPONDENTS
(BY SRI. HARISH H.V., ADV. FOR C/R1 TO R4
V/O DATED 23.08.2023 NOTICE TO R5 & R6 IS D/W)
THIS PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE ENTIRE
RECORDS PERTAINING TO THE CASE OF THE PETITIONER AND
TO GRANT THE FOLLOWING RELIEFS AND QUASH THE
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NC: 2023:KHC:31968
WP No. 17552 of 2023
IMPUGNED ORDER DATED 27/07/2023 WHEREIN DISMISSED
THE INTERLOCUTORY APPLICATION IN I.A.NO.18 FILED UNDER
ORDER XIII RULE 3 R/W SECTION 151 OF CPC FOR D-MARK OF
EX. D51 AND EX.D53 IN O.S.NO.68/2014 ON THE FILE OF
SENIOR CIVIL JUDGE AND JMFC AT PAVAGADA, WHICH IS
PRODUCED AND MARKED AS ANNEXURE-A.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner/plaintiff No.5 in O.S.No.68/2014 on the file of the Senior Civil Judge and JMFC., at Pavagada (for short, 'Trial Court') is before this Court against order dated 27.07.2023 dismissing I.A.No.18 filed under Order VIII Rule 3 read with Section 151 of CPC for demarking Ex.P51 and Ex.P53.
2. Heard learned counsel Sri.Fayaz for petitioner/plaintiff No.5 and learned counsel Sri.Harish.H.V., for respondent/defendants. Perused the writ petition papers.
3. Learned counsel for the petitioner/plaintiff No.5 would submit that suit of the petitioner/plaintiff No.5 is for a judgment and decree for partition and separate -4- NC: 2023:KHC:31968 WP No. 17552 of 2023 possession in the suit schedule property. It is submitted that during the course of defendants' evidence, Ex.D51 and Ex.D53 are marked. It is the contention of the learned counsel for the petitioner that Ex.D51 and Ex.D53 are irrelevant and inadmissible documents. Therefore, petitioner filed application under Order XIII Rule 3 of CPC to reject Ex.D51 and Ex.D53 as irrelevant and inadmissible. Learned counsel for the petitioner would submit that Ex.D51 is affidavit of one Mymunnisa and Ex.D53 is hiba of gift deed. Learned counsel for the petitioner would further submit that the affidavit is not in accordance with the notice act and as such the said affiadavit cannot be taken note of or could not have been marked. Further, learned counsel would submit that CC of hiba or gift deed is produced. It is submitted that said document sis produced as if it is a certified copy obtained from the Court of Senior Civil Judge and JMFC., Pavagada, no suit number is mentioned in the certified copy and it is submitted that it is a concocted document. Further, learned counsel would submit that with regard to Ex.D51 -5- NC: 2023:KHC:31968 WP No. 17552 of 2023 and Ex.D53, there is no pleading or averment in the written statement. Further, it is submitted that Section 64 of Evidence Act mandates production of original document and if at all the party intends to lead secondary evidence one has to fulfil the criteria under Section 65 of Evidence Act. As the defendants have not fulfilled any of the conditions of Section 65 of Evidence Act, the Trial Court ought to have allowed the application and rejected Ex.D51 and Ex.D53 as prayed. IN support of his contention, learned counsel Sri.Fayaz Sab, places reliance on the decision of the Co-ordinate Bench of this Court reported in 2022 2 KAR.L.R 39 (M.SURENDRA RAO VS.
M.RAVEEDRA RAO AND OTHERS). Thus, he prays for allowing the writ petition.
4. Per contra, learned counsel Sri.Harish.V., submit that there is no merit in the writ petition and he submits that the writ petition is liable to be dismissed with costs. It is submitted that Ex.D51 and Ex.D53 are marked in the presence of the petitioner/plaintiff and at the time of -6- NC: 2023:KHC:31968 WP No. 17552 of 2023 marking the documents, no objection was raised by the petitioner/plaintiff, hence it is not permissible for the petitioner/plaintiff to seek demarking of the documents under Order XIII Rule 3 of CPC. Further, learned counsel would submit that Ex.D51 and Ex.D53 are certified copies and it is not Xerox copies to fulfil the conditions of Section 65 of Evidence Act. Learned counsel would further refer to the orders passed by this Court in W.P.No.29190/2019 dated 19.08.2019 and in W.P.No.56/2020 dated 08.09.2022 between the parties i.e., petitioner and defendant wherein this Court in the first writ petition has observed that the gift or hiba need not be registered and in the subsequent writ petition, the petitioner had challenged the marking of Ex.D53 and challenge to demark Ex.D53 is rejected. Thus, he prays for dismissing the writ petition.
5. Having heard the learned counsel appearing for the parties and on perusal of the writ petition papers, I am of the view that the petitioner has not made out any -7- NC: 2023:KHC:31968 WP No. 17552 of 2023 ground to interfere with impugned order and the writ petition is liable to be dismissed with costs.
6. It is an admitted fact that during the course of defendants' evidence, Ex.D51 and Ex.D53 are marked and at the time of marking the documents, there was no objection from the petitioner/plaintiff. Subsequently, the petitioner/plaintiff filed an application to demark Ex.D47 to Ex.D52 and the said application was allowed insofar as demarking Ex.D48 to Ex.D50 and rejected his request for demarking Ex.D47, Ex.D51 and Ex.D52. Challenging the said order, petitioner was before this Court in W.P.No.56/2020 and this Court by order dated 08.09.2022, allowed the writ petition insofar as Ex.D47 is concerned and demarked the same. Insofar as Ex.D51 this Court refused to demark the same. Hence, in view of the said order, the petitioner/plaintiff could not have filed one more application to demark Ex.D51.
7. Insofar as Ex.D53 is concerned, it is submitted that the document is neither a certified copy nor original -8- NC: 2023:KHC:31968 WP No. 17552 of 2023 gift deed tendered by DW1 during the course of her evidence. When Ex.D53 was marked rejecting petitioner's objection, the petitioner was before this Court in W.P.No.29190/2019. This Court by order dated 19.08.2019, rejected the writ petition in view of the settled position of law in AIR 2011 SC 1695 (HAFEEZA BIBI AND OTHERS V/S. SHAIKH FARID (DEAD) BY LRs AND OTHERS). As the petitioner's challenge to marking of Ex.D53 is rejected which is confirmed by this Court in the above stated writ petition, the petitioner could not have filed I.A.No.18 under Order XIII Rule 3 of CPC to demark the document. It is open for the petitioner to address argument on the acceptability or otherwise of the document at the time of main argument. For having filed repeated applications and repeated writ petitions on marking of Ex.D51 and Ex.D53, this writ petition is liable to be rejected with cost.
8. The decisions relied on by the learned counsel for the petitioner in support of his contention i.e., in -9- NC: 2023:KHC:31968 WP No. 17552 of 2023 M.SURENDRA RAO (supra), it is to be noticed that in the said case the objection was raised before marking the document and the document was marked without prejudice to the rights and interest of the plaintiff and reserving right, to address arguments at the time of main argument in the suit. In the case on hand, the plaintiff failed to object before marking the documents and on marking of the document, challenge to the same by way of writ petition is rejected. Therefore, the decision relied by learned counsel for the petitioner would not assist the petitioner.
For the reasons recorded above, the writ petition is dismissed with costs of Rs.3,000/- payable to the respondents/defendants on the next date of hearing before the Trial Court.
Sd/-
JUDGE NC CT:bms List No.: 1 Sl No.: 27