IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 07TH DAY OF MARCH, 2019 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.56142/2018(GM-CPC) BETWEEN:
1. HORMUSJI COWASJEE DINSHAW TRUST REPRESENTED BY ITS TRUSTEE SRI SAROOSH C. DINSHAW PARSI, 2ND FLOOR, ADENWALLA BUILDINGS, 121, NAGINDAS MASTER ROAD MUMBAI-400023.
2. SRI SAROOSH C. DINSHAW, AGE 57 YEARS, S/O COWASJEE NUSSERWANJI DINSHAW R/AT SIR H. C. DINSHAW BUILDING, 1ST FLOOR, NO.16, HORNIMAN CIRCLE, FORT, MUMBAI-400 001.
3. SRI JEHANGIR R. PATEL, AGE 55 YEARS, S/O RUTTON DOSABSAI PATEL, R/AT SIR H. C. DINSHAW BUILDING, 1ST FLOOR NO.16, HORNIMAN CIRCLE, FORT, MUMBAI-400 001.
... PETITIONERS (BY SRI H. R. ANANTHA KRISHNA MURTHY, ADVOCATE) AND:
1. SRI ABDUL HAMEED KHAN, S/O KHWAJA GULAM HASSAN KHAN MUSLIM, MAJOR R/A NO.22/1, MILLER ROAD BENSON TOWN, 1ST CROSS, BENGALURU-560 002.
2. SRI PASHA MUSLIM, MAJOR NO.8-B, CUNNINGHAM ROAD CRESCENT ROAD BENGALURU-560 052.
3. SRI K. L. SRIHARI, SINCE DEAD BY LRS.
3(a) SMT. RAJALAKSHMI W/O LATE K. L. SRIHARI AGED ABOUT 71 YEARS 3(b) SRI K. H. GURUNATH, S/O LATE K. L. SRIHARI AGED ABOUT 54 YEARS 3(c) SMT. DHANALAKSHMI D/O LATE K. L. SRIHARI AGED ABOUT 52 YEARS 3(d) SRI K. H. SIRNIVAS S/O LATE K. L. SRIHARI AGED ABOUT 49 YEARS 3(e) SRI K. H. RADHESHYAM S/O LATE K. L. SRIHARI AGED ABOUT 47 YEARS 3(f) SMT. J. G. HEMAMALINI, D/O LATE K. L. SRIHARI AGED ABOUT 44 YEARS 3(g) SMT. S. R. VYJAYANTHIMALA D/O LATE K. L. SRIHARI AGED ABOUT 40 YEARS LRs No.3(a) TO 3(g) ARE RESIDING AT NO.9 SESHADRI ROAD, BENGALURU-560 009.
4. SRI K. L. A. PADMANABHASA, HINDU, MAJOR KHODAY HOUSE, NO.26/1, SANKEY ROAD BENGALURU-560 052 5. KHODAY INDIA LTD., KHODAY HOUSE, A COMPANY INCORPORATED UNDER THE COMPANIES ACT WITH ITS OFFICE AT NO.26/1, SANKEY ROAD BENGALURU-560 052.
REPRESENTED BY SRI K. L. SRIHARI 6. SRI VEERESH SINGH MAJOR, NO.22/1 MILLER ROAD, BENSON TOWN, 1ST CROSS BENGALURU-560 002.
7. M/S L. K. TRUST, A PRIVATE TRUST, HAVING ITS REGISTERED OFFICE AT NO.9, SESHADRI ROAD, BENGALURU-560 009, REPRESENTED BY ITS AUTHORIZED TRUSTEE SRI K. L. SRIHARI.
... RESPONDENTS (BY SRI S.V.BHAT, ADV., FOR R3(a) TO R3(g), R4 & R5; SRI S. SUKUMAR, ADVOCATE FOR R7;
VIDE ORDER DATED 7.3.2019 NOTICE ON R1, R2 AND R6 IS DISPENSED WITH) …… THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 14.11.2018 IN O.S.NO.7941/2008 PASSED BY THE LEARNED XIV ADDITIONAL CITY CIVIL JUDGE AT BENGALURU (CCH NO.28) I.A.NO.17 VIDE ANNEXURE-G AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The present writ petition is filed by the plaintiffs against the Order dated 14.11.2018 made in O.S.No. 7941/2008 rejecting I.A.No.18 filed by the plaintiffs under Section 63(2) and 65(c) of the Indian Evidence Act, 1872 r/w Section 151 of Code of Civil Procedure, on the file of the XIV Addl. City Civil Judge, Bengaluru, (CCH-28).
2. The plaintiffs/present petitioners filed suit for declaration that the plaintiffs are the absolute owners of the schedule ‘C’ property and for recovery of possession of ‘C’ schedule property from the defendants and for enquiry into future mesne profits contending that the plaintiffs are the owners in possession of the suit schedule property. It is contended that the defendants have no manner of right, title and interest. The defendants filed written statement, denied the averments made in the plaint and contended that the defendants are in possession and enjoyment of the suit schedule property for more than the statutory period of 12 years, adverse to the interest of plaintiffs and sought for dismissal of the suit.
3. When the matter was posted for cross- examination of P.W.1, at that stage, plaintiffs filed I.A.No.18 under Section 63(2) and 65(c) of the Indian Evidence Act, 1872, r/w Section 151 of Code of Civil Procedure seeking permission to mark the certified copy of the documents already produced and mentioned in the application as secondary evidence in support of their case, stating that the original documents mentioned in the application were misplaced and were unable to trace. Since the documents are duly registered, the certified copies are produced and the same may be taken as secondary evidence. The said application was opposed by the seventh defendant by filing objections.
4. The Trial Court, considering the application and objections, by the impugned Order, rejected the application. Hence the present writ petition is filed for the relief sought for.
5. I have heard the learned counsel for the parties to the lis.
6. Sri H.R.Anantha Krishna Murthy, learned counsel for the petitioners contended that the Trial Court rejected the application ignoring the provisions of Sections 63 and 65 of the Indian Evidence Act, 1872. The impugned order rejecting the application is passed mainly on the ground that I.A.No.17 filed by the plaintiff under Order VII Rule 14(3) r/w Section 151 of Code of Civil Procedure to condone the delay in production of documents is rejected. Therefore the impugned order is erroneous and contrary to the material on record. Therefore, he sought to allow writ petition.
7. Sri S.V.Bhat, learned counsel for the respondent Nos.3(a) to 3(g), 4 and 5, sought to justify the impugned order and submits that in the absence of any material regarding production of primary evidence as contemplated under Section 62 of the Indian Evidence Act, the Trial Court is justified in rejecting the application. Therefore, sought to dismiss the writ petition.
8. Having heard the learned counsel for the parties, in the absence of any material for production of primary evidence as contemplated under Section 62 of the Indian Evidence Act, 1872, the Court cannot allow the parties to produce secondary evidence. The Trial Court, considering the entire material on record, recorded a finding that since the plaintiffs have not produced any material documents to prove the absence of primary evidence, the application filed by the plaintiffs under Sections 63(2) and 65(c) of the Indian Evidence Act, 1872 cannot be considered. Accordingly, rejected the application.
9. In view of the above, the impugned order is just and proper. The petitioners have not made out any ground to interfere with the impugned order in exercise of powers under Article 227 of the Constitution of India.
Accordingly, Writ Petition is dismissed. However, it is needless to observe that it is open for the plaintiffs to produce primary evidence/original sale deeds, in accordance with law.
Sd/- JUDGE kcm