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.56141/2018(GM-CPC) BETWEEN:
1. HORMUSJI COWASJEE DINSHAW TRUST REPRESENTED BY ITS TRUSTEE SRI SAROOSH C. DINSHAW AGE 57 YEARS, 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.
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.17 filed by the plaintiffs under Order VII Rule 14(3) 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 an application under Order VII Rule 14(3) r/w Section 151 of Code of Civil Procedure seeking to condone the delay in production of the documents mentioned in the list annexed to the application, stating that the documents have been filed in other cases filed by the plaintiff trust against some of the defendants, some documents were obtained from the Court and some from competent authorities and therefore, they were unable to produce the same, earlier. 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 the application is filed at a belated stage and absolutely no reasons are assigned. Therefore the impugned order is erroneous and contrary to the material on record. He further contended that except the sale deeds all other documents i.e., Will, probate, plaint, written statement, additional written statement, issues, order sheet, judgment and decree, are Court documents. Therefore, the Trial Court ought not to have rejected the application and hence, 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 fairly submits that except sale deeds all other documents sought to be produced can be permitted to be produced, since they are all court documents. The applicant has not discharged his initial burden about primary evidence. In the absence of same, the Trial Court is justified in rejecting the application and therefore, sought to dismiss the writ petition.
8. Having heard the learned counsel for the parties, it is undisputed fact that the plaintiffs filed suit for declaration of title and for possession, raising various contentions. The defendants filed written statement denying the plaint averments and set up the plea of adverse possession. An application came to be filed by the plaintiffs seeking to produce some documents, stating that some are Court documents and some are obtained from concerned authorities. Hence it was not possible to produce at the earlier point of time.
9. However, the fact remains that in the affidavit filed in support of the application, plaintiffs have not assigned any reasons or explained the reasons for non production of the originals i.e., primary evidence, as contemplated under the provisions of Section 62 of the Indian Evidence Act. It is not in dispute that, except sale deeds, the other documents are Court documents. Though there is delay in production of documents, in the interest of justice, the Trial Court ought to have allowed the plaintiffs to produce the documents mentioned in the application, except the sale deeds. The Trial Court is not justified in rejecting the application, in toto.
10. For the reasons stated above, the writ petition is allowed in part. The plaintiffs are permitted to produce all the documents sought in the list annexed to the application, except the sale deeds. However, it is open for the plaintiffs to take necessary steps to produce the original sale deeds as primary evidence in accordance with law.
Sd/- JUDGE kcm