IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 8TH DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 6078 OF 2018 (GM-CPC) BETWEEN:
SMT. K.S. ANDAL SRIRAM W/O. DR. K. N. SREERAMA SETTY, AGED ABOUT 68 YEARS, R/AT NO. 157, I BLOCK, III PHASE, BSK III STAGE, BENGALURU-560 085.
PETITIONER IS NOT SEEKING THE BENEFIT OF SENIOR CITIZEN.
(BY SRI. ANUP SEETHARAM RAO, ADVOCATE) AND:
1. SRI. V. SRINIVAS S/O. VENKATASWAMAPPA, AGED ABOUT 41 YEARS, R/AT NO. 37, 2ND MAIN, DOLLARS LAYOUT, J. P. NAGAR 4TH PHASE, BENGALURU-560 078.
2. SRI. K. S. KALLESH AGED ABOUT 38 YEARS, S/O. DR. K. N. SREERAMA SETTY, NO.157, I BLOCK, III PHASE, BSK III STAGE, BENGALURU-560 085.
… PETITIONER … RESPONDENTS (BY SRI. H S CHANDRAIAH, ADVOCATE FOR R1;
R2 SERVED) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 20.01.2018 ON I.A. U/O XVI RULE 7 R/W SEC. 151 OF CPC IN O.S.8030/2015 BY THE HON'BLE LXIII ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU AT ANNEX- H;
THIS PETITION COMING ON FOR PRELIMINMARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER The petitioner being the defendant in a specific performance suit filed by the 1st respondent herein in O.S.No.8030/2015 is knocking at the doors of Writ Court for assailing the order dated 20.01.2018, a copy whereof is at Annexure-H, whereby the learned LXIII Addl. Civil Judge, Bengaluru has rejected his application filed under Order XVI Rule 7 r/w Sec.151 of CPC, 1908 with cost of Rs.2,000/-. Notice to 2nd respondent having been dispensed with on the memo of the petitioner, the 1st respondent having entered appearance through his counsel, resists the writ petition.
2. Having heard the learned counsel for the parties and having perused the petition papers, reprieve needs to be granted to the petitioner for the following reasons:
(a) the suit in O.S.No.8030/2015 is filed on 18.09.2015; it is for specific performance of an agreement to sell dated 23.04.2014 comprising the suit house; the sale price is stated to be Rs.4 crore of which an advance of Rs.1 crore & 25 lakh was paid in cash and Rs.20 lakh was paid by RTGS;
(b) the suit was resisted by filing the Written Statement on 15.12.2015, and PW-1 was partly cross- examined on 10.11.2016; petitioner has specifically contended in the Written Statement that the averment as to payment in cash of Rs.1 crore & 25 lakh is not true; the case having been adjourned a few times, the petitioner filed application under Order XVI Rule 7 on 24.01.2017 seeking a direction to the respondent-plaintiff to produce the income tax papers for the preceeding two assessment years and also the Vijaya Bank Account Statement; these documents are sought for, for ascertaining availability of huge funds to show that in addition to Rs.20 lakh paid by way of RTGS, another sum of Rs.1 crore & 25 lakh was paid in cash inasmuch as the respondent-plaintiff has already produced certain documents to prima facie show his financial capacity;
(c) under the provisions of Sec.9 of the Indian Evidence Act, 1872, the fact which the defendant wants to prove for rebutting a fact in issue or a fact relevant to the fact in issue becomes relevant; the proof or rebuttal depends upon the documents whose production is now sought; therefore the reasoning of the Court below that the plaintiff being the dominus litis, decides what documents are to be produced and what documents are not to be, appears to be too farfetched a view that militates against the principle incorporated in Order XVI Rule 7, the invokability of the said reason in criminal proceedings being, beside the point, and (d) that the trial of suit is on the principle of preponderance of probability; the respondent-plaintiff has already led his evidence to prima facie show that he had the financial capacity as on the date the agreement to sale was entered into and a huge sum of Rs.1 crore & 25 lakh in cash in addition to Rs.20 lakh by way of RTGS was allegedly paid; the petitioner being the defendant is entitled to dislodge the like discharge of burden, if any, arguably done by the evidence led by the plaintiff’s side; for that he can seek a direction to the plaintiff to produce the subject documents which are not the public documents but private documents lying with the public offices, which have an element of privacy; it is not forthcoming as to why these documents should be withheld by the plaintiff from production and also what prejudice would be caused to him by producing them.
In the above circumstances, this writ petition succeeds; the impugned order is set at naught; petitioner’s subject application filed under Order XVI Rule 7 of CPC having been favoured, a direction issues to the 1st respondent-plaintiff to produce the documents enlisted in the said application within a period of eight weeks; however, these documents after being marked in evidence be kept in a sealed cover/safe custody since they involve privacy of the respondent-plaintiff.
It is needless to state that it is open to the petitioner to look into these documents with the leave of the Court below, at the time of recording of evidence; petitioner shall pay a cost of Rs.10,000/- to the 1st respondent-plaintiff on the next date of hearing of the suit or within one month, whichever is later, failing which the order now set aside, shall stand resurrected.
Since the suit is of the year 2015, the learned trial Judge is requested to expedite its trial and disposal.
Sd/- JUDGE Snb/