Karnataka High Court
Shree Uttaradi Mutt vs Shree Raghavendra Swamy Mutt on 4 June, 2019
Author: S G Pandit
Bench: S.G. Pandit
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 4 T H DAY OF JUNE, 2019
BEFORE
THE HON'BLE MR.JUSTICE S.G. PANDIT
WRIT PETI TION NO.110239/2019 (GM-CPC)
BETWEEN:
SHREE UTTARADI MUTT,
REPRESENTED BY ITS PEETHADHIPATI,
SRI SRI 1008 SRI SATYATMA TEERTHA SWAMIJI,
UTTARADI MUTT, BASAVANAGUDI,
NEAR NATIONAL COLLEGE,
BENGALURU-560 085,
R/BY ITS GENERAL POWER OF
ATTORNEY HOLDER:
SRI R.S.KEMBHAVI,
AGED ABOUT 78 YEARS,
R/O. C/O UTTARADI MUTT,
BASAVANAGUDI, BENGALURU 560 085.
...PETITIONER
(BY SRI.UDAYA HOLLA, SENIOR ADVOCATE
FOR S RI.AMEET KUMAR DESHAPANDE, ADVOCA TE)
AND:
SHREE RAGHAVENDRA SWAMY MUTT,
R/BY ITS PEETHADHIPATI,
SRI.H.H.SUBHUDENDRA TEERTHA SWAMIJI,
MANTRALAYAM, KARNOOL DIST.
ANDHRA PRADESH 510 003,
BY HIS APTHAKARYADARSHI,
SRI.S.N.SUYAMENDRACHAR.
...RESPONDENT
(BY SRI.K.SUMAN AND SRI.G.M.BHA T, ADVOCA TES)
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THIS WRIT PETITION IS FILED UNDER ARTICLE
227 OF THE CO NSTITU TION OF INDIA PRAYING TO
QUASH THE ORDER DATED 25.04.2019 PASSED IN
R.A.NO.123/2014 ON THE FILE OF THE PRINCIPAL SENIOR
CIVIL JUDGE AND CJM, DHARWAD, WHEREBY ADDITIONAL
DOCUMENTS NOT SHOWN IN THE LIST APPENDED TO THE
APPLICATIONS IA NO.5, 11 AND 12 FILED UNDER ORDER 47
RULE 27 OF C.P.C. ON BEHALF OF THE
DEFENDANT/RESPONDENT HEREIN, ARE ALLOWED, IS
CONCERNED, THE COPY OF WHICH IS AT ANNEXURE-S.
THIS WRIT PETITION COMING ON FOR HEARING
ON I.A. THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court under Article 227 of the Constitution of India challenging the order dated 25.04.2019 passed in R.A.No.123/2014 on the file of the Prl. Senior Civil Judge and CJM, Dharwad, whereby additional documents not shown in the list appended to the applications, I.A.Nos.5, 11 and 12 are allowed to be marked.
2. The petitioner is the plaintiff and the respondent is the defendant in O.S.No.193/1992 3 filed for permanent injunction to restrain the defendant from entering upon the suit schedule land "Nava Vrindavana Gadde" or interfering with the plaintiff's possession and enjoyment thereof in any way, and or interfering or disturbing with the performance of Annual Aradhana of H.H.Padmanabha Theertharu, Sri.H.H. Kavindra Theertharu and Sri.H.H. Vageesha Theertharu.
3. After trial the suit came to be dismissed by judgment and decree dated 18.06.2011. Aggrieved by the said judgment and decree, the plaintiff filed R.A.No.123/2014 before the Prl. Senior Civil Judge and CJM Dharwad. The said Regular Appeal was allowed by judgment dated 22.04.2015. The decree passed in R.A.No.123/2014 reads as follows: 4
"T he suit of the plain tif f is decreed in part. Subject to the right, if any, of the Def endant Mutt to perf orm Aradhanas and Poojas of the Vrind avan as in the suit property, the def endan t is restr ained by way of Perpetu al In junction f rom in terf ering with the pl ain tif f Mutt's possess ion and enjoymen t of the su it property. It is hereby clar if ied that the above s aid raider shall not be construed as declar ing the right of the Def endant Mutt to perf orm Aradh anas and Poojas."
4. Aggrieved by the judgment passed in R.A.No.123/2014, the defendant/respondent herein filed RSA No.100446/2015 before this Court. This Court by judgment dated 14.11.2017 allowed the appeal and also applications filed under Order 41 Rule 27 of CPC and remanded the matter to the trial Court directing to allow the additional evidence and to allow the parties to prove and disprove the same in accordance with law and then re-decide the suit giving its 5 findings in the light of such additional evidence. Aggrieved by the said remand order, the petitioner herein i.e. the plaintiff filed Civil Appeal No.9333/2018 before the Hon'ble Apex Court. The said Civil Appeal was disposed of by judgment dated 26.09.2018, wherein the judgment of the high Court was modified to the effect that the appeal was restored to the file of the High Court to its original number. The High Court was directed to frame points on which the additional evidence is allowed to be produced and directing the First Appellate Court to take the additional evidence on record in accordance with law and then return the evidence to the High Court together with its findings thereon and the reasons thereof. Accordingly, this Court by order dated 23.01.2019 framed four points for determination by the First Appellate Court. Aggrieved by the said order by which four points 6 were framed for consideration by the First Appellate Court, the defendants/respondents herein filed Civil Appeal No.2027/2019 before the Hon'bel Apex Court. The Hon'ble Apex Court by order dated 25.02.2019 modified the order of this Court and restricted the points for determination to two i.e. Point No.(i) and point No.(iv) framed by the High Court without disturbing the order of the High Court.
5. In pursuance to the above said proceedings, the parties appeared before the First Appellate Court to lead evidence. During the course of the evidence, the defendant/ respondent herein intended to mark documents other than the documents listed in the application filed under Order 41 Rule 27 of CPC. The same was opposed by the plaintiff/petitioner herein contending that only those documents 7 which are enclosed to the applications i.e. I.A.Nos.5, 11 and 12 could be marked and no other documents could be marked. The learned First Appellate Judge under the impugned order permitted the defendant/respondent herein to mark all those documents which are not shown in the list to the application filed under Order 41 Rule 27 of CPC on the ground that the High Court has permitted to produce the documents which are not exhibited. Aggrieved by the said order the plaintiff/petitioner herein is before this Court in this writ petition.
6. Learned counsels, Sri.K.Suman and Sri.G.M.Bhat have entered appearance for the respondent. Heard the learned senior counsel, Sri.Udaya Holla for Sri.Ameet Kumar Deshapande appearing for the petitioner and the learned counsels appearing for the respondent. 8
7. The learned senior counsel on behalf of the plaintiff/petitioner herein would submit that the learned First Appellate Court could not have permitted the defendant/respondent herein to mark the documents other than the documents shown in I.A.Nos.5, 11 and 12. By the order of the learned First Appellate Judge the defendants could mark any documents other than the listed documents. The learned senior counsel took the Court through the order passed by the Hon'ble Apex Court and this Court on earlier occasions.
8. During the course of hearing, the learned counsel for the respondent/defendant filed a memo dated 03.06.2019 which reads as follows:
"T he me mo f iled by the respondent.
T he respondent sub mits th at, it has alre ady produced 4 docu ments along with 9 I.A.No.5 in the year 2012 in the lo wer appellate court and specif ic ally ref erred to these 4 docu men ts in the af f idav it f iled in support of I.A.No.5. T he respondent No.1 will be mark ing in the s aid case in the lo wer appell ate cour t only the said 4 docu men ts wh ich are as under:-
1. Me mo dated 07.11.1973 given by the Depu ty Co mmiss ioner, L and Records, Gulb arg a to ASLR, R aichur stating th at, no survey and corrections c an be eff ected by the ASLR without the order of the Revenue Au thorities U/Sec.140(2) of Mysore L and Revenue Act, 1964.
2. T he letter of ASLR, Raichur dated 19.11.1973 to T ahasildar, G ang avath i to eff ect necess ary ch anges in ROR.
3. T he order of Superin tendent of Land Records dated 07.09.1974 directing correction of extent of Sy.No.192 as 27Ac-30Gs avail able at the spot.
4. T he ASLR, Raichur v ide le tter d ated 29.01.1975 submits reply to the Depu ty Co mmis sioner, R aichur in 10 respect of the T elegram requesting th at no action is necessary on the T elegram.
T he respondent f urther respectf ully sub mits th at, the af oresaid 4 docu men ts are already on record along with I.A.No.5. As f or as another docu men t wh ic h is the subject matter of I.A.No.12 bef ore the lo wer appellate cour t i.e. the RTI reply dated 20.01.2015, the respondent h ad ac tu ally f iled only the Pho tos tat copy of the s aid RT I reply in adver ten tly along with I.A.No.12 in the year, 2015. T he respondent will theref ore be producing the orig inal of the RT I reply dated 20.01.2015. No other docu ment will be produced by the respondent excepting the af oresaid docu ment i.e. RT I reply.
T he respondent theref ore prays this Hon'ble Cour t to take th is me mo on record and p ass appropriate orders in the matter, in the interest of justice and equity."
9. The learned counsel for the respondent submits that the defendant/respondent herein 11 intends to mark 4 documents stated in the above memo and original of document dated 20.01.2015 Photostat copy of which is already produced and which is on record. He submits that other than the documents mentioned in the memo the defendant/respondent herein would not intend to mark any other documents. It is his submission that 4 documents mentioned in the memo are already on record and he points out those documents in the affidavit filed in support of I.A.No.5 filed under Order 41 Rule 27 of CPC. Further submits that inadvertently those documents were not mentioned in the application.
10. On perusal of the affidavit, 4 documents mentioned in the memo finds place in the affidavit. It is those documents which the defendant/respondent herein intends to mark in 12 the evidence apart from one letter copy of which is already on record and original of which the defendant intends to mark.
11. Thus, the dispute with regard to marking of documents has narrowed down to the documents which are mentioned in the memo dated 03.06.2019 filed by the defendant/ respondent herein. The petitioner/plaintiff has filed objection to the memo filed by the defendant/respondent herein dated 03.06.2019 contending that the memo is opposed to the order passed by the Hon'ble Apex Court in Civil Appeal No.9333/2018. Further, it is stated that the documents which are now sought to be marked are not even offered to the petitioner for its perusal so as to ascertain its contents and admissibility, etc. 13
12. Having heard the learned counsels for the parties and having perused the writ papers, memo filed by the defendant/respondent herein on 03.06.2019 and reply to the said memo, I am of the view that the defendant/respondent herein could be permitted to mark the documents stated in the memo dated 03.06.2019 for the reason that the documents stated in the memo dated 03.06.2019 are memo dated 07.11.1973 given by the Deputy Commissioner, Land Records, Gulbarga to ASLR, Raichur; letter of ASLR, Raichur dated 19.11.1973 to Tahasildar, Gangavathi; order of Superintendent to Land Records dated 07.09.1974; and ASLR, Raichur letter dated 29.01.1975, since they find place in the affidavit filed in support of the application filed under Order 41 Rule 27 of CPC i.e. I.A.No.5.
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13. In fact, the learned counsel for the defendant/respondent herein submits that those documents are already on record and only they are to be marked as documents. As those documents are already on record and as they find place in the affidavit filed in support of the application filed under Order 41 Rule 27 of CPC, no prejudice would be caused to the plaintiff/petitioner herein if those documents are permitted to be marked. Those are not new documents introduced during the course of evidence after remand, but as stated by the learned counsel for the defendant/respondent herein they are already on record.
14. The Hon'ble Apex Court in its order dated 26.09.2018 passed in Civil Appeal No.9333/2018 has observed that the First Appellate Court to record additional evidence 15 and also to consider the question of genuineness and authenticity of the additional evidence, including as to whether the contents thereof have been proved by the party relying thereon. Therefore, mere marking of documents would not cause any prejudice to the plaintiff/petitioner herein. It is for the defendant/respondent herein to prove the genuineness and authenticity of the documents.
The other document which the defendant/respondent herein intends to mark is RTI reply dated 20.01.2015 copy of which is said to have been placed on record and he intends to produce the original of the said reply which would also not cause any prejudice to the plaintiff/petitioner herein.
15. The submission of the learned counsel for the defendant/respondent herein that they 16 would not produce any other document except the documents stated in the memo dated 03.06.2019 is placed on record.
16. With the above, the writ petition is disposed of.
17. In view of the disposal of the writ petition, pending interlocutory applications would not survive for consideration.
Sd/-
JUDGE Sh