1 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF DECEMBER, 2017 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.46653/2017(GM-CPC) BETWEEN:
J. SOMASHEKAR, SON OF C. JAYARAJ, AGED ABOUT 39 YEARS, NO.2223, 39TH ‘F’ CROSS, 4TH ‘T’ BLOCK, JAYANAGAR, BANGALORE-560041.
... PETITIONER (BY SRI D. R. RAVISHANKAR, ADVOCATE) AND:
1. LT. COL. APPU RAMANAND SHARMA (RETD). SON OF LATE V.K.SWAMY, AGED ABOUT 76 YEARS, R/A NO.619, 12TH MAIN, HAL II STAGE, INIDRANAGAR, BANGALORE-38.
2. SMT. PREETHI SHARMA, D/O LT. COL. APPURAMANAND SHARMA (RETD) AGED ABOUT 36 YEARS, R/A NO.619, 12TH MAIN, HAL II STAGE, INDIRANAGAR, BANGALORE-38.
... RESPONDENTS (BY SRI S.V. GIRIDHAR, ADVOCATE FOR GIRIDHAR & CO, ADVOCATES FOR C/R1 AND R2) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ANNEXURE-F ORDER DATED 15.9.2017 PASSED IN O.S.NO.5395/2011, ON THE FILE OF 8TH ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER This is the plaintiff’s writ petition against the order dated 15.9.2017 made in O.S.No.5395/2011 on the file of the VIII Additional City Civil and Sessions Judge, Bangalore rejecting the notice to admit documents filed by the plaintiff.
2. The petitioner-plaintiff filed O.S.No.5395/2011 for specific performance directing the defendants to accept the balance sale consideration of Rs.1,52,50,000/- and to execute the sale deed in respect of the suit schedule property and to deliver possession thereof, failing which, the Court may permit the plaintiff to deposit the entire amount upon the decree before the Court contending that defendant No.1, who is the owner of the suit schedule property morefully described in the schedule to the plaint intending to offer to sell the schedule property to him and accordingly, the defendants entered into an agreement with the plaintiff on 2.9.2008, and the same was registered in the Office of the Sub-registrar, Indiranagar, Bangalore for a total sale consideration of Rs.1,80,00,000/- and a sum of Rs.20,00,000/- was paid on the date of agreement as advance under the cheque and balance sale consideration was agreed to be paid at the time of registration of the sale deed. Clause 2 of the agreement contemplated that the transaction had to be completed within a period of three months, however, subject to the condition that the plaintiff would secure and produce documents referred to in sub-clauses (a) and (s) of the agreement.
3. It is the further case of the plaintiff that though the documents had not been secured on 9.9.2008, the defendants again approached the plaintiff seeking further advance on the ground that the same was required to meet their exigencies. Though the plaintiff was ready and willing to pay the entire balance sale consideration, subject to compliance of clause 2 of the sale agreement, at the request of the defendants, further sum of Rs.7,50,000/- was paid by means of cheque and a separate receipt had also been executed by the defendants in this regard. It was further contended that, it was represented by the defendant that he intended to execute the General Power of Attorney in the name of his friend Ramarao after obtaining ‘No Objection’ from the daughter and that the sale consideration could be concluded through the power of attorney holder by paying balance sale consideration, etc., and inspite of notice, the defendant had not executed the sale agreement, etc. Therefore, he had filed the suit for the relief sought for.
4. Defendant No.1 filed a written statement and denied the entire plaint averments and contended that the suit filed by the plaintiff is not maintainable and the entire suit is the outcome of fraud played by the plaintiff on them. Only with an intention of harassing them, the plaintiff has filed the suit. He further contended that the manner in which the plaintiff has played fraud with the assistance of the people that, the plaintiff was dependent upon can be clearly ascertained in the facts as stated in the plaint. The suit agreement upon which the plaintiff seeks reliance upon for the purpose of institution of the suit is secured by fraud, undue influence, misrepresentation and taking undue advantage of the trust and confidence reposed by the defendants on the plaintiff. The plaintiff in collusion and assistance of persons, who were close to them had exercised undue influence and by playing fraud on the defendant has secured the suit agreement. The suit agreement does not constitute a legally valid and binding agreement and the defendant cannot be compelled to honour the same. Since the said agreement is vitiated by playing fraud, the same is null and void.
5. He further contended that the suit filed by the plaintiff for specific performance is barred by limitation. He also contended that he learnt the illegal acts of the plaintiff was in collusion with Mr. Ramesh Rao and therefore, immediately in the year 2010 he informed the said Ramesh Rao and his family, who were staying free in the schedule property to vacate the said premises and to refund the entire amount of Rs.20,00,000/- of the plaintiff which the said Ramesh Rao had collected, in order to refund the same to the plaintiff. He also cancelled the Power of Attorney in favour of Mr. Ramesh Rao. The said Ramesh Rao also agreed to the cancellation, vacated the schedule property and refunded the amount of Rs.20,00,000/-. Thereafter, the said Ramesh Rao under the guise of securing some rectifications, again secured a registered Power of Attorney. He was informed that the plaintiff was attempting to secure a Sale Deed on the basis of the said second Power of Attorney. Hence, the defendants called upon the said Ramesh Rao to secure the cancellation of second Power of Attorney, etc., and therefore, sought for dismissal of the suit.
6. Defendant No.2 also filed separate written statement denying the entire plaint averments and contended that the suit filed by the plaintiff is not maintainable. In addition to the statement already filed by defendant No.1, she would further contend that the plaintiff played fraud on them and they had always been kept in dark of the transactions. They also learnt that all these fraudulent events existed after the suit summons was received. Defendant No.2 never intended to give any Power of Attorney to Ramesh Rao or they intended completion of the sale transaction through Ramesh Rao, etc., and hence sought for dismissal of the suit.
7. During the course of the proceedings, the plaintiff issued notice to admit documents under Order XII Rule 3 of the Code of Civil Procedure on 29.7.2017 proposing to adduce in evidence the documents viz., 1) Copy of the General Power of Attorney dated 23.10.2008;
2) Copy of the General Power of Attorney dated 19.12.2008 i) Defendant No.1 ii) Defendant No.2 iii) Advocate for defendants requesting/requiring to admit aforesaid documents as are specified to be originals were respectively written, signed or executed as they purport respectively to have been that above specified documents copies are true copies which are produced along with the plaint and served to the defendants respectively saving all just exceptions to the admissibility of all such documents as evidenced in the suit.
8. The said application was resisted by defendant No.1 by filing objections and contended that the notice as brought out by the plaintiff was not maintainable and required to be dismissed in limine with costs. He further contended that he had also filed written statement to the suit pending and as already stated, the circumstances under which the Power of Attorney came to be executed. They have not admitted the execution of the said Power of Attorney of the very Will in volition of defendant No.1. Therefore, the question of seeking an admission of execution of the document at the hands of defendant No.1 does not arise as the same is the disputed question of fact. The plaintiff is under the obligation to prove before the Court that the documents had been executed in terms of the pleadings that defendants on their own executed the said Power of Attorney. The defendants further contended that the Power of Attorney produced before the Court is not admissible in evidence under the guise of the present notice to admit. Therefore, sought for dismissal of the notice of admission.
9. The trial Court considering the notice of admission issued by the plaintiff-petitioner and objections, by the impugned order dated 15.9.2017 rejected the notice of admission of documents dated 29.7.2017 brought by the plaintiff. Hence, the present writ petition is filed.
10. I have heard the learned Counsel for the parties to the lis.
11. Sri D.R. Ravishankar, learned Counsel for the petitioner contended that the impugned order passed by the trial Court rejecting the notice brought out by the plaintiff to admit documents dated 29.7.2017 is erroneous and contrary to the material on record. He further contended that when the petitioner-plaintiff has issued notice on 29.7.2017 under Order XII Rule 3 of the Code of Civil Procedure, it is mandate either to admit or deny within a period of seven days. If it is not admitted or no communication of denial is made within a period of seven days, it is deemed to have been admitted. He would further contend that under the provisions of Section 57 of the Registration Act and Rule 144 of the Karnataka Registration Rules, nobody can obtain the copies other than the parties to the documents.
12. The learned Counsel for the petitioner would further contend that there is an admission of documents in the written statement as observed by this Court in W.P. No. 38811/2016. Therefore, when there was no reply to the application of the plaintiff under Order XII Rules 1 and 2 of the Code of Civil Procedure within seven days, it was deemed to be admitted. He would further contend that in view of provisions of Section 30 of the Code of Civil Procedure, the Court may at any time either of its own motion or on the application of any party, make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects produceable as evidence; issue summons to persons whose attendance is required either to give evidence or to produce documents or such other objects to aforesaid; order any fact to be proved by affidavit. Therefore, the impugned order passed by the trial Court cannot be sustained.
13. In support of his contentions with regard to seven days notice, he relied upon the judgment of the Bombay High Court in the case of HIREN P. DOSHI – VS- STATE OF MAHARASTRA AND ANOTHER reported in MH L J (2016)1 P.571 wherein a Court directs a party to admit documents and a party refuses or neglects to admit such documents, otherwise it would be easy for any party to keep quiet and the documents which were not denied specifically or by necessary implication or stated to be not admitted in the pleading of that party or in his reply to admit documents shall be deemed to have been admitted except as against a person under a disability.
14. The learned Counsel for the petitioner also relied upon the dictum of the Bombay High Court in the case of SOCIEDADE DE FOMENTO INDUSTRIAL LIMITED –vs- SITA SHRIPAD NARVEKAR reported MHLJ (2016)2 P 958 at para-7 has held that document to be deemed to be admitted if not denied after service of notice to admit document under Order 12 Rule 2A(1); Form of notice under Order 12 Rule 3, Endorsement on documents admitted in evidence under Order 13 Rule 4, Recording of admitted and return of rejected documents under Order XIII Rule 7 and Recording of evidence under Order XVIII Rule 4 of the Code of Civil Procedure. The format of notice as provided in Form No.9 of Appendix C in the Code of Civil Procedure would also show that the admission as envisaged under Order XII Rule 3 of the Code of Civil Procedure is subject to all just exceptions to the admissibility of such documents as evidence in such suits. When both the parties have led oral evidence, there was no notice to admit the documents given.
15. In the same context, the High Court of Bombay in the case of HEMENDRA RASIKLAL GHIA – VS-SUBODH MODY reported in MHLJ (2008) 6 P 886 at paragraphs 51 and 52 has held as under:
51. On being served with the writ of summons, the defendant appears and files written statement under Order VIII Rule 1 in which defendant can admit or deny the documents filed by the plaintiff. This is a first opportunity to the defendant to deny or admit the documents. Rule 8-A thereof cast duty on defendant to produce documents upon which relief is claimed by him. Rules relating to a written statement by a defendant apply to a written statement filed in answer to a counter claim in view of Rule 6-G of Order VIII.
Under Order XIII Rule 1, one more opportunity is available to the parties to produce documentary evidence at or before settlement of issues. Order 12 Rule 2 provides for notice to admit documents calling upon the opponent to admit documents.
52. This is an additional stage to admit or deny or object to the admissibility of the document. Rule 2A thereof provides for deemed admission, if documents are not Denied within stipulated time-frame after service of notice to admit documents.
Therefore, he sought to quash the impugned order by allowing the present writ petition.
16. Per contra, Sri Giridhar, learned Counsel for the respondents, sought to justify the impugned order and contended that at para-3 of the plaint, it is specifically stated that it was also represented by the defendant that he intended to execute the General Power of Attorney in the name of his friend Ramarao after obtaining No. Objection from the daughter and that the sale transaction could be concluded through the power of attorney holder by paying balance sale consideration. The Special Power of Attorney was executed only for the limited purpose for presentation, if executed by defendant No.1. He also invited attention of the Court to the written statement wherein at para-22, with regard to First Power of Attorney, the defendant has submitted that on 23.10.2008 plaintiff brought a Power of Attoreny prepared by plaintiff’s lawyer appointing Mr. Ramesh Rao as his Power of Attorney. The document was registered on 24.10.2008. It was also brought to the notice of the Court that at para-37 of the written statement filed by the defendants where it is specifically stated that it is denied that any draft was furnished. It is also denied that the defendant intended to give any Power of Attorney to Ramesh Rao or that the defendant intended the completion of the sale transaction through Ramesh Rao. It is denied that the plaintiff was ready and willing to perform his part of the contract. He also brought to notice of the Court that in written statement filed by defendant No.2 at para-34 that she has denied that they intended to give any Power of Attorney to Ramesh Rao or that they intended the completion of the sale transaction through Ramesh Rao. Therefore, he contended that the documents alleged is disputed by the defendants.
17. The learned Counsel would further contend that the notice of admission was denied by the defendants by filing objections on 16.8.2017 as contemplated under Order XII Rule 2A of the Code of Civil Procedure. Rule 2A of Order XII of the Code of Civil Procedure attracts only if notice to admission is not denied. Admittedly in the present case, defendants denied the documents. Therefore, he submits that the writ petition is not maintainable. In support of his contentions, he sought to rely upon the very judgment relied upon by the learned Counsel for the petitioner in the case of HIREN P. DOSHI –VS- STATE OF MAHARASTRA AND ANOTHER reported in MHLJ (2016) 1 P. 571 specifically paragraph Nos.7, 8, 9 and 11 and contended that once denied in the written statement, question of notice of admission under Order XII Rule 2 of the Code of Civil Procedure would not arise. He would further contend that in view of the provisions of Order 12 Rule 2-A proviso read with Section 58 of the Evidence Act, once it is denied by the defendant in the written statement, question of admission would not arise. He also relied upon the judgment of the Apex Court in the case of LIFE INSURANCE CORPORATION OF INDIA AND ANOTHER –VS- RAM PAL SINGH BISEN reported in (2010)4 SCC 491 paragraphs-22, 23 and 25. Therefore, he sought to dismiss the writ petition.
18. In view of the aforesaid rival contentions urged by the learned Counsel for the parties, the points that arise for consideration in the present writ petition are:
i) Whether the plaintiff has made out a case that the defendants have to pay costs of proving the documents as contemplated under Rule 2 of Order XII of the Code of Civil Procedure ?
ii) Whether the plaintiff has proved the deemed admission of documents in the facts and circumstances of the present case ?
19. I have given my thoughtful consideration to the arguments advanced by the learned Counsel for the parties and perused the entire available papers on record carefully.
20. The plaintiff filed a suit for specific performance to enforce the agreement dated 2.9.2008 alleged to have been executed by the defendants for a sum of Rs.1,80,00,000/- and receive a sum of Rs.20,00,000/- as on the date of the agreement. Though the plaintiff was willing to perform his part of the agreement, the defendants have not discharged the conditions stipulated in the agreement. Therefore, he filed the suit.
21. The defendants filed their written statement denying the entire plaint averments and contended that the very suit filed by the plaintiff was not maintainable as the plaintiff has played fraud, undue influence, misrepresentation and taking undue advantage of the trust and confidence reposed, created an agreement in collusion with the assistance of the persons , who were close to them and hence, sought for dismissal of the suit.
22. During the pendency of the proceedings, the plaintiff exercising the power under Order XII Rule 3 of the Code of Civil Procedure, issued notice to admit documents viz., Copy of the General Power of Attorney dated 23.10.2008 and Copy of the General Power of Attorney dated 19.12.2008. The same was resisted by the defendants by filing objections and denied the admission of the documents contending that the notice as brought out by the plaintiff was not maintainable since they have not admitted the execution of the said Power of Attorneys of the free will and hence, question of seeking admission of execution of documents at the hands of the defendants would not arise and it is for the plaintiff to prove before the Court in terms of the pleadings and sought for dismissal of the application.
23. The trial Court rejected the application -
I.A. VII filed by plaintiff under Order XVI Rule 6 of the Code of Civil Procedure seeking direction to Ramesh Rao to produce original of the registered General Power of Attorneys dated 23.10.2008 and 29.12.2008, mainly on one ground that plaintiff had not produced detailed address of the said Ramesh Rao and on other ground that the plaintiff can very well obtain copies of the Power of Attorneys and produce certified copies of the same and therefore notice to admit documents brought out by the plaintiff is not maintainable.
24. In view of the controversy between the parties, it is relevant to consider the provisions of Order XII Rules 1, 2, 2A and 3 which read as under:
“1. Notice of admission of case-- Any party to a suit may give notice, by his pleading, or otherwise in writing, that he admits the truth of the whole or any part of the case of any other party.
2. Notice to admit documents- Either party may call upon the other party [to admit, within seven days from the date of service of the notice any document,] saving all just exceptions; and in case of refusal or neglect to admit, after such notice, the costs of proving any such document shall be paid by the party so neglecting or refusing, whatever the result of the suit may be, unless the Court otherwise directs; and no costs of proving any document shall be allowed unless such notice is given, except where the omission to give the notice is, in the opinion of the Court, a saving of expense.
2-A. Document to be deemed to be admitted if not divided after service of notice to admit documents -
(1) Every document which a party is called upon to admit, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of that party or in his reply to the notice to admit documents, shall be deemed to be admitted except as against a person under a disability :
Provided that the Court may, in its discretion and for reasons to be recorded, require any document so admitted to be proved otherwise than by such admission.
(2) Where a party unreasonably neglects or refuses to admit a document after the service on him of the notice to admit documents, the Court may direct him to pay costs to the other party by way of compensation.] 3. Form of notice- A notice to admit documents shall be in Form No. 9 in Appendix C, with such variations as circumstances may require.
25. A plain reading of the provisions of Order XII Rules 1, 2, 2A and 3 makes it clear that any party to a suit may give notice, by his pleading, or otherwise in writing, that he admits the truth of the whole or any part of the case of any other party. Either party may call upon, the other party to admit, within seven days from the date of service of the notice any document, saving all just exceptions; and in case of refusal or neglect to admit, after such notice, the costs of proving any such document shall be paid by the party so neglecting or refusing, irrespective of the result of the suit. Every document which a party is called to admit, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of that party or in his reply to the notice to admit documents, shall be deemed to be admitted except as against a person under a disability. Provided that the Court may, in its discretion and for reasons to be recorded, require any document so admitted to be proved otherwise than by such admission and where a party unreasonably neglects or refuses to admit a document after the service on him of the notice to admit documents, the Court may direct him to pay costs to the other party by way of compensation.
26. The object of obtaining admission is to do away with necessity of proving the facts that are admitted. There are three kinds of admissions under the provisions of Section 58 of the Indian Evidence Act, 1872 which reads as under:
(1) Admissions in pleading:
(i) actual, that is, those contained in the pleadings (Order 7 Rule 5) or in answer to interrogatories (Order 11 Rule 22).
(ii) Constructive, that, those which are merely the consequence of the form of pleading adopted (Order 8 Rules 3, 4, 5) (2) Admissions by agreement.
(3) Admissions by notice.
27. The importance of admission consists in the fact that either party may, at any stage of the suit, move for judgment on the admissions made by the other side under Rule 6 of Order XII of the Code of Civil Procedure. Once a fact is admitted, it becomes concluded and hence it is no longer open to the Court to reopen it and reappraise the evidence. But a statement relied on as an admission made in a pleading must be taken as a whole and not in parts. Thus, if a written statement incorporates an admission as to certain facts and also contains a denial of certain other facts, the cumulative effect of the entire statement must be considered.
28. Admittedly, in the present case, the plaintiff issued notice to admit documents proposed to be adduced in evidence the documents – copy of the General Power of Attorney dated 23.10.2008 and copy of the General Power of Attorney dated 19.12.2008.
29. In terms of Order XII Rule 2 of the Code of Civil Procedure, the defendants have to admit or deny the documents within seven days from the date of service of notice any document, saving all just exceptions, but the objection came to be filed only on 18.8.2017 i.e., after a lapse of time as stipulated in the said provision. Therefore, the defendants have failed to comply with the provisions of Sub-Rule 2 of Order XII of the Code of Civil Procedure inviting the Court to impose costs by proving any such document by the plaintiff irrespective of result of the suit.
30. While considering the provisions of Rule 2 A of Order XII of the Code of Civil Procedure, it clearly depicts that every document which a party is called upon to admit, if not denied specifically or by necessary implication or stated to be not admitted in the pleading of that party or in his reply to the notice to admit documents, shall be deemed to be admitted except as against a person under a disability and the Court may, in its discretion and for reasons to be recorded, require any document so admitted to be proved otherwise than by such admission and where a party unreasonably neglects or refuses to admit a document after the service on him of the notice to admit documents, the Court may direct him to pay costs to the other party by way of compensation. Admittedly, in the present case, though the defendants have not filed statement of objections within the time as stipulated under Rule 2 of Order XII of the Code of Civil Procedure but have filed only on 16.8.2017 denying notice of admission contending that they have not admitted the execution of the said General Power of Attorneys of the free will and volition of the defendants and therefore, question of seeking admission to the execution of the documents at the hands of the defendants does not arise as the same is disputed question of fact and the plaintiff is under an obligation to prove before the Court that the documents so executed in terms of the pleadings that defendant No.1 on his own executed Power of Attorney. The defendants admit with just exceptions that the Power of Attorneys dated 23.10.2008 and 19.12.2008 are under the signature of defendant No.1 while qualifying that such signatures of defendant No.1 were secured under duress by the plaintiff in the manner stated in detail in the written statement. The said Power of Attorneys sought to be produced is not admissible in evidence under the guise of the present notice to admit and does not constitute valid documents. Therefore, the plaintiff cannot secure admission of the documents which are in any event not admissible. Therefore, the defendants have fulfilled the obligation as contemplated under Rule 2A of Order XII of the Code of Civil Procedure.
31. On thorough consideration of the averments made in the plaint and written statement, by a reading of the written statement and objections on I.A. filed by the defendants as a whole, it clearly depicts that there is denial of execution of General Power of Attorneys relied upon by the plaintiff in notice to admit documents dated 29.7.2017. Therefore, it is for the plaintiff to prove the said documents by way of oral and documentary evidence after full fledged adjudication in the suit. Therefore, the contention of the learned Counsel for the petitioner that there is no reply to the application within the stipulated period and it was deemed to be admitted, cannot be accepted.
32. The amendment of provisions of Order XII Rule 2 of the Code of Civil Procedure came into effect from 1st July 2002. The amendment is beneficial as it seeks to curtail the precious time of the Court wasted in procedural aspects. The amended Rule 2 of Order XII of the Code of Civil Procedure prescribes the time limit for the purpose to admit documents within seven days from the date of service of notice. It means, the documents have to be admitted within seven days of filing of the application for this purpose. Where a party is called upon the other party to admit, refuses or neglects to admit after service of notice to admit, the costs of proving any such document shall be paid by the party so neglecting or refusing. In the facts and circumstances of the present case, the defendants neglected or refused the notice to admit the documents within seven days. Therefore, they are liable to pay the costs to be imposed by the Court irrespective of the result of the suit.
33. The learned Counsel for the petitioner has relied upon the judgment of the Bombay High Court in the case of HIREN P. DOSHI –VS- STATE OF MAHARASTRA reported in MHLJ (2016) 1 P. 571 where the suit was filed by the plaintiff for recovery of an amount of Rs.1,84,35,061/- from the defendants with interest and costs and the plaintiff therein had issued a notice exercising powers under Order XII Rule 3 of the Code of Civil Procedure. The defendants neither personally nor through their advocate took inspection of the documents mentioned in the said notice or even responded to the said notice and had not denied the documents specifically. Under those circumstances, the Bombay High Court held that it shall be deemed to have been admitted except as against a person under disability. So also in the case of SOCIEDADE DE FOMENTO INDUSTRIAL LIMITED –vs- SITA SHRIPAD NARVEKAR reported MHLJ (2016)2 P.958, where notice issued by the plaintiff under Order XII Rule 3 of the Code of Civil Procedure was served on the defendant, who neither disputed nor denied the said document. Under those circumstances, the Bombay High Court held that the format of notice as provided in Form No.9 of Appendix C in the C.P.C.
would also show that the admission as envisaged under Order XII Rule 3 of C.P.C. is subject to all just exception to the admissibility of such documents as evidence in such suits and the documents shall be treated to be admitted subject to all such exceptions to their admissibility as evidence. The said dictums have no application to the facts and circumstances of the present case on hand.
34. The another judgment relied upon by the learned Counsel for the petitioner is HEMENDRA RASIKLAL GHIA –VS- SUBODH MODY reported in MHLJ (2008)6 P. 886 wherein the provisions of Order XIII Rules 3, 4 and 6 of the Code of Civil Procedure were considered by the Full Bench of High Court of Bombay while holding that on being served with the writ of summons, the defendant appears and files written statement under Order VIII Rule 1, the defendant can admit or deny the documents filed by the plaintiff. That was the first opportunity to the defendant to deny or admit the documents. Rule 8- A thereof cast duty on defendant to produce documents upon which relief is claimed by him. Rules relating to a written statement by a defendant apply to a written statement filed in answer to a counter-claim in view of Rule 6-G of Order VIII. Under Order XIII Rule 1, one more opportunity is available to the parties to produce documentary evidence at or before settlement of issues. Order XII, Rule 2 provides for notice to admit documents calling upon the opponent to admit documents i.e., at the stage to admit or deny the object of admissibility of the document, Rule 2-A provides a deemed admission, if documents are not denied within the stipulated time after service of notice to admit documents. Therefore, the facts and circumstances of the judgments relied upon by the learned Counsel for the petitioner stated supra are entirely different and hence, they are not applicable to the facts and circumstances of the present case.
35. Admittedly, in the present case, the defendants have filed objections, denying the admissibility of documents at a later stage, but not within the time stipulated. Therefore, the defendants have to pay costs imposed by the trial Court irrespective of the result of the suit and in view of denial to admit documents as already stated supra, provisions of Rule 2-A of Order XII of the Code of Civil Procedure has been complied with.
36. The Hon’ble Supreme Court while considering the provisions of Order XII Rule 2 of the Code of Civil Procedure in the case of LIFE INSURANCE CORPORATION OF INDIA AND ANOTHER –VS- RAM PAL SINGH BISEN reported in (2010) 4 SCC 491 wherein at paragraphs 21 to 25, has held as under:
“21. It is also necessary to mention here that Rule 2-A of Order 12 CPC deals with the situation where notice of admission as contemplated in Order 12 Rule 2 CPC has been served but is not denied, then the same shall be deemed to have been admitted. Similarly, Rule 3-A of the aforesaid Order grants power to the court to admit any document in evidence, even if no notice has been served. The aforesaid provisions of law have been brought in the Code vide amendment by Act No. 104 of 1976 w.e.f. 1-2-1977.
22. Records do not reveal that any such procedure was adopted either by the appellants or by the trial court to prove the documents filed by the appellants and mark them as exhibits. Thus, no advantage thereof could be accrued to the appellants, even if it is assumed that the said documents have been admitted by the respondent and were then exhibited and marked.
23. No doubt, it is true that failure to prove the defence does not amount to an admission, nor does it reverse or discharge the burden of proof of the plaintiff but still the duty cast on the defendants has to be discharged by adducing oral evidence, which the appellants have miserably failed to do.
24. The appellants, even though a defaulting party, committed breach and failed to carry out a legislative imposition, then had still to convince this Court as to what was the just cause for doing the same. Thus, looking to the matter from any angle, it is fully established that the appellants had miserably failed to prove and establish their defence in the case.
25. We are of the firm opinion that mere admission of a document in evidence does not amount to its proof. In other words, mere marking of exhibit on a document does not dispense with its proof, which is required to be done in accordance with law.”
37. The question of exhibiting the document under Rule IV of Order 13 can arise only if the document is found to be admissible in evidence and in case it is found to be not admissible, the same has to be rejected in terms of Rule 6 of Order XIII of the Code of Civil Procedure. There is no provision in the Code of Civil Procedure enabling the Court to postpone the objection regarding admissibility or proof of document, as such one can safely rule that the question as to admissibility of document should be decided as it arises and should not be reserved until the judgment of the case is given.
38. The Hon’ble Supreme Court while considering the provisions of Order XII Rule 1 of the Code of Civil Procedure in the case of DUDH NATH V SURESH CHANDRA reported AIR 1986 SC 1509 at paragraph-6 has held as under:
“6. This plea was however negatived by the High Court as it had never been taken when the case was remanded to the First Appellate Court by judgment dated 8th February, 1961. Besides the question requires investigation into certain facts which was not possible in the Second Appeal. The High Court however reversed the finding of the First Appellate Court on the question of limitation relying on the so-called admission of the defendant in the written statement and the evidence of the witnesses produced on behalf of the defendant. Virtually, the High Court has made a fresh appraisal of the evidence and has come to a different finding contrary to the finding recorded by the First Appellate Court which the High Court could not do in the exercise of power under Section 100 of the Civil P.C. Even on merits, if the High Court had to rely upon the alleged admission in the written statement, the admission must be taken as a whole and it is not permissible to rely on a part of the admission ignoring the other. The High Court, in our opinion, has erred in making a fresh appraisal of the evidence to come to a different conclusion. Even otherwise, the plaintiff has to stand on his own strength.”
39. In view of the aforesaid reasons, the first issue raised in the present writ petition is answered in the affirmative holding that the plaintiff has made out a case that the defendants have to pay the costs of proving the documents. Since the defendants have neglected or refused the documents, the costs shall be paid by them whatever the result of the suit may be, unless the Court otherwise directs as contemplated under Rule 2 of Order XII of the Code of Civil Procedure.
40. The trial Court while considering the notice brought out by the plaintiff to admit documents dated 29.7.2017 has held that when the case was posted for cross-examination of P.W.1, the plaintiff had filed I.A.VII under Order XVI Rule 6 of the Code of Civil Procedure with a prayer to direct the Ramesh Rao to produce original Registered General Power of Attorneys dated 23.10.2008 and 29.12.2008. After hearing the both sides, the said application came to be rejected on the ground that the plaintiff had not produced the detailed address of the said Ramesh Rao to direct him to produce alleged General Power of Attorneys. The said order passed by the trial Court at the request of the plaintiff to direct the defendants to produce original Power of Attorneys has attained finality. Admittedly, the defendants had filed objections on 16.8.2017 to the notice brought out by the plaintiff to admit documents dated 29.7.2017 after the lapse of time as stipulated under Order XII Rule 2 of the Code of Civil Procedure not admitting the execution of the said General of Power of Attorneys of the free will and volition of defendant No.1 and disputing the execution of the documents. Therefore, there is compliance of provisions of Rule 2-A of Order 12 of the Code of Civil Procedure. To that extent, the impugned order passed by the trial Court is just and proper and accordingly, the second point raised in the writ petition is answered in the negative holding the plaintiff has failed to prove the deemed admission of documents as contemplated under Rule 2A of Order XII of the Code of Civil Procedure.
41. For the reasons stated above, writ petition is allowed in part. The impugned order passed by the trial Court with regard to the observations that the plaintiff has to obtain certified copies of those documents and produce before the Court, is contrary to the provisions of Section 57 of the Registration Act and Rule144 of the Karnataka Registration Rules 1965 and accordingly, the same are quashed. The application filed by the plaintiff is allowed in part holding that the defendants have to pay the costs for neglecting or refusing to admit documents within the stipulated period, whatever the result of the suit. The plaintiff failed to prove the deemed admission of the documents as contemplated under Rule 2A of Order XII of the Code of Civil Procedure.
42. It is needless to observe that it is for the parties to prove their respective case after adducing and producing both oral and the documentary evidence and the trial Court shall dispose of the suit strictly in accordance with law.
Sd/- Judge Nsu/-