IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE KRISHNA S. DIXIT WRIT PETITION NO.24799/2019 (GM-CPC) BETWEEN M. R. VEERAIAH PRESIDENT SRI. MAHAGANAPATHI & SRI. VEERBHADRESWARA SEVA TRUST S.S. EXTENSION ‘A’ BLOCK SHMANUR ROAD DAVANAGERE-577 005. ... PETITIONER (BY SMT JYOTHI M, ADVOCATE) AND 1. SMT NAGARATHNAMMA W/O. LATE N.CHANDRASHEKARAPPA AGED ABOUT 63 YEARS HOUSE WIFE R/O.3680/20, MCC ‘B’ BLOCK K.H.B. COLONY DAVANAGERE-577 005 2. SRI C. SIDDESH S/O N. CHANDRASHEKARAPPA AGED ABOUT 40 YEARS FDA TREASURY KUNDAPURA SUB TREASURY KUNDAPURA UDUPI DISTRICT-577 021 3. SRI C. GIRISH S/O N. CHANDRASHEKARAPPA AGED ABOUT 38 YEARS CHIEF MANAGER D.B. CORPORATION LTD. DOOR NO. 22, MURPHY ROAD (KENSINGTON ROAD), NEAR ULSOOR BENGALURU-560 008 4. SRI MAHAGANAPATHI AND SRI VEERABHADRESWARA SEVA TRUST SRI MAHAGANAPATHI AND SRI VEERABHADRESWARA TEMPLE S.S. EXTENSION "A" BLOCK SHAMANUR ROAD DAVANAGERE-577 005 5. SRI SHA / BHR RENUKA SGIVACHARYASWAMIJI HONBLE PRESIDENT SRI MAHAGANAPATHI AND SRI VEERABHADRESWARA SEVA TRUST S.S. EXTENSION, "A" BLOCK SHAMANUR ROAD DAVANAGERE PRESENTLY RESIDING AT:
RABMBAPURI KHASA SHAKHA MATH YEDEYUR AT AND POST KUNIGAL TALUK 6. SRI K. MOUNESH S/O KUBERAPPA AGED ABOUT 45 YEARS ELECTRICIAN SECRETARY R/O. SRI MAHAGANAPATHI & SRI. VEERABHADRESWARA SEVA TRUST LAYOUT "A" BLOCK, SHAMNUR ROAD DAVANAGERE-577 005 ... RESPONDENTS (BY SRI SANATH KUMAR SHETTY .K., ADVOCATE FOR C/R3) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 25.04.2019 IN IA NO.20 PASSED BY THE COURT OF III ADDITIONAL SENIOR CIVIL JUDGE AND JMFC AT DAVANAGERE, IN O.S.NO.46/2015 AT ANNEXURE-‘E’ AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner who is the defendant no.3 in contesting respondent’s suit in O.S.No.46/2015, is invoking the writ jurisdiction of this Court for laying a challenge to the order dated 25.04.2019, a copy whereof is at Annexure-E, whereby the learned III Addl. Sr. Civil Judge, Davanagere has rejected his application in I.A.No.20 for marking of the Compact Disc in Exhibit ‘D’ series. The contesting respondent having entered appearance through his counsel opposes the writ petition.
2. The learned trial Judge has rejected the petitioner’s application on an erroneous assumption of law that in the absence of a certificate contemplated under Sec.65 B(4) of the Indian Evidence Act, 1872, the Compact Disc cannot be marked. This is plainly contrary to what the Apex Court said in the case of Shafhi Mohammad vs. State of Himachal Pradesh, AIR 2018 SC 714; para 15 reads as under:
“15. Accordingly, we clarify the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Such party cannot be required to produce certificate under Section 65B(4) of the Evidence Act. The applicability of requirement of certificate being procedural can be relaxed by Court wherever interest of justice so justifies.”
3. Even otherwise also, the marking per se of the document, namely the Compact Disc is only a ministerial act and it would not cause any prejudice to the other side, if the witness who tendered it in evidence re-enters the witness box for that purpose.
In the above circumstances, this writ petition succeeds; petitioner’s application in I.A.No.20 is favoured; the trial Court to process the matter further.
No costs.
Sd/- JUDGE KLV