IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 2ND DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.8638/2017 (GM-CPC) BETWEEN:
1. SMT GOWRAMMA W/O LATE K. NANJUNDAPPA, AGED 79 YEARS 2. SHRI N.SUNDARA RAJU, S/O LATE K.NANJUNDAPPA, AGED 59 YEARS, 3. SHRI N.THULASI RAJU, S/O LATE K.NANJUNDAPPA, AGED 56 YEARS, 4. SHRI N.DHANANJAYA, S/O LATE K.NANJUNDAPPA, AGED 49 YEARS, 5. SHRI N.YOGISHA, S/O LATE K.NANJUNDAPPA, AGED 47 YEARS, 6. SHRI N.NARAYANASWAMY, S/O LATE K.NANJUNDAPPA, AGED 44 YEARS, THE PETITIONERS NO.1 & 3 TO 6 ARE REPRESENTED BY THEIR GPA HOLDER, SHRI N.SUNDARA RAJU, THE PETITIONER NO.2 ALL ARE R/AT NO.16,SANEGURUVANAHALLI, BASAVESHWARANAGAR, BENGALURU-560 079.
… PETITIONERS (BY SRI. S.SHAKER SHETTY, ADVOCATE) AND:
1. B MUNISWAMY S/O BASAPPA, MAJOR 2. SMT MANGAMMA, W/O B.MUNISWAMY, MAJOR DEFT. NOS.1 AND 2 SINCE DEAD BY THEIR LRS:
1(a) SMT B.M. NAGARATHNA, D/O. LATE B.MUNISWAMY & LATE MANGAMMA, W/O A.CHANDRASHEKAR, AGED ABOUT 56 YEARS 1(b) SHRI B.M.VENKATACHALLAM, S/O LATE B.MUNISWAMY & LATE MANGAMMA, AGED ABOUT 54 YEARS 1(c) SHRI B.M. RAMESH, S/O LATE B.MUNISWAMY & LATE MANGAMMA, AGED ABOUT 52 YEARS 1(d) SMT B.SHYLAJA, W/O LATE B.M.NAGABHUSHANA, DAUGHTER-IN-LAW OF LATE B.MUNISWAMY & LATE MANGAMMA, AGED ABOUT 38 YEARS 1(e) KUMARI HARINI, D/O LATE B.M.NAGABHUSHANA, AGED ABOUT 18 YEARS 1(f) KUMARI SUKHITHA D/O LATE B.M.NAGABHUSHANA, AGED ABOUT 16 YEARS RESPT/DEFT.NO.1(f) SINCE MINOR, REPRESENTED BY HER MOTHER AND NATURAL GUARDIAN- SMT B.SHYLAJA, 1(g) SHRI B.M.CHANDRASHEKAR, S/O. LATE B.MUNISWAMY & LATE MANGAMMA, AGED ABOUT 46 YEARS 1(h) SMT. B.M.HEMALATHA, D/O LATE B.MUNISWAMY & LATE MANGAMMA W/O V.KRISHNAMURTHY, AGED ABOUT 43 YEARS ALL ARE RESIDING AT VIJINAPURA BEHIND:VIKAS HIGH SCHOOL, DOORAVANINAGAR POST, BENGALURU-560 016.
3. N.RATHNAM REDDY S/O BYRAPPA,MAJOR RESIDING AT VIJINAPURA, BEHIND: VIKAS HIGH SCHOOL, DOORAVANINAGAR POST, BENGALURU-560 016.
4. SMT P.V.RATHNAMMA SINCE DECEASED BY HER LRS 4(a) P.DAMODARA REDDY, S/O. RAMAKRISHNA REDDY, MAJOR, 4(b) UMASHANKARA REDDY S/O P.DAMODARA REDDY, MAJOR, DEFT./RESP.4(a) AND 4(b) ARE RESIDING AT NO.912, II STAGE,"D" BLOCK,RAJAJINAGAR, BENGALURU-560 010.
5. B.N.RAMADASAPPA, SINCE DECEASED BY HIS LRS 5(a) SMT. ASHWATHAMMA, W/O LATE B.N.RAMADASAPPA, AGED ABOUT 59 YEARS, RESIDING AT BELLURU VILLAGE, NARASAPURA POST, KOLAR TALUK & DISTRICT-563 133.
6. K.S.THANTRY, S/O LATE KRISHNA TANTRY, MAJOR, NO.40, BDA QUARTERS, A/3, DOMLUR, BENGALURU-560 071.
7. SANDEEP PARWATIKAR, S/O GOVINDA RAO, MAJOR, NO.9,4TH CROSS, VICTORIA LAYOUT, BENGALURU-560 047.
8. MAHABOOB BASHA S/O. MASTHAN, MAJOR, RESIDING AT NO.153, 3RD CROSS, JEEVANAHALLI, BENGALURU-560 005.
9. B.ABDUL SALAM, S/O T.O.BASHU, MAJOR, RESIDING AT NO.E-60, NORTH II LANE, DOORAVANINAGAR POST, BENGALURU-560 016.
10. SMT. MUTHAMMA, W/O DHARMARAJ, MAJOR, NO.57, 6TH CROSS, A.T.STREET, VASANTHANAGAR, BENGALURU-560 052.
… RESPONDENTS (BY SRI. M.BABU RAO, ADV., FOR R8; R1(A), R1(G), R5(A)-SERVED;
R6-SERVED V/O DT-8.4.2019, SERVICE OF NOTICE ON R1(B, C, D, E & H), R3, R4A & B, R7, R9 & R10 IS HELD SUFFICIENT) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 2.8.2016 IN O.S.15754/2000 ON THE FILE OF 28TH ADDL. CITY CIVIL JUDGE (MAYO HALL) BENGALURU AT ANNEX-F AND ETC., THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER The petitioners being the plaintiffs are invoking the writ jurisdiction of this Court for assailing the order dated 02.08.2016, a copy whereof is at Annexure-F whereby the learned XXVIII Additional City Civil Judge, Bengaluru has issued the following direction:
“The plaintiff is directed to produce the Original Document dtd 20-3-1984 which is said to have been marked as Ex P-1 in OS No.15208/2001 which is pending on the file of this court by filing the necessary application for the return of the same after producing the certified copy of the same.
The question of admissibility of the said document and whether the same is stamped or not and whether it requires registration or not would be considered after the plaintiff produced the original documents.”
After service of notice, the contesting respondents having entered appearance through their counsel, oppose the Writ Petition.
2. The learned counsel for the petitioners vehemently argues that the impugned order is contrary to law as laid down by the Apex Court in the case of JAVERCHAND AND ORS., vs. PUKHRAJ SURANA, AIR 1961 SC 1655 inasmuch as the said original document having already been marked in another suit on O.S.No.15208/2001, its certified copy becomes admissible by way of secondary evidence by virtue of Sections 63, 65 & 74 of the Indian Evidence Act; if a document is already marked in evidence even in other suit, a copy of such document is admissible in evidence in the suit in question. So arguing, he seeks invalidation of the impugned order.
3. Per contra, learned counsel for the contesting respondents contends that the decision cited by the petitioners’ side is confined to fact matrix of the case in which the law is laid down; if a document is marked in a other suit, its copy has to be permitted to be marked in the evidence of the present suit is not the ratio of the said decision; whether document can be admitted to a evidence or not has to be adjudged independently in this suit since these respondents were not parties to the other suits; even otherwise also there is no justification for not producing the original document in the evidence in this suit after retrieving the same from the record of other suit, leaving a certified copy thereof. So contending, he seeks dismissal of the Writ Petition.
4. Having heard the learned counsel for the parties and having perused the Petition Papers, this Court declines to grant indulgence in the matter because:
a) the impugned order has only directed the petitioners to obtain the original document from the record of other suit for being produced in the present suit; no difficulty having been shown as to why this exercise cannot be undertaken by the petitioner, the impugned order is unassailable, even if arguably it contains some error of law vide Apex Court decision in KOKANDA B POONDACHA VS. K.D.GANAPATHY, (2011) 12 SCC 600;
b) the other contention that the original document having been marked in evidence in O.S.No.15208/2001, and therefore, there cannot be objection to the production and marking of a certified copy of he said document in the present suit is bit difficult to accept inasmuch as the other suit is not between the same parties; accepting a contra argument would breed more mischief inasmuch as if a document gets admitted to evidence consensually between the parties to some other suit, would become automatically admissible in all other suits even when parties are not same;
(c) the Apex Court decision cited by the petitioners supra lays down the law succinctly put as under:
where a question as to the admissibility of a document is raised on the ground that it has not been stamped or has not been properly stamped, the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the Court. The Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case. Once a document has been marked as an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses, S. 36 comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the Trial Court itself or to a Court of Appeal or Revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same court or a court of superior jurisdiction.
This decision was rendered in a specific fact matrix of the case to which both the sides were parties whereas the respondents herein are not parties to O.S.No.15208/2001, admittedly; therefore, what is held to be admissible in that suit a fortiori cannot be held admissible in the present suit;
(d) it was more than century ago said by Lord Halsbury in the case of QUINN VS. LEATHAM, 1901 AC 495 that a decision is an authority for the proposition which it actually lays down, and not for all that which logically follows therefrom; reliance cannot be placed upon the aforesaid decision of the Apex Court, even by employing logic.
In the above circumstances, the Writ Petition being devoid of merits, stands dismissed, all other contentions of the parties having been kept open.
The Court below shall grant reasonable time to the petitioners for producing he original document in question in the suit in question after retrieving it from the record of suit in O.S.No.15208/2001.
No costs.
Sd/- JUDGE DS