IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF OCTOBER, 2017 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION Nos.34510-34511/2017(GM-CPC) BETWEEN:
S. MOHAN, SON OF LATE S. S. PRAKASH, AGED ABOUT 57 YEARS, # 1304, 21ST B MAIN, 11TH CROSS, SECTOR-I, HSR LAYOUT, BANGALORE-34.
(BY SRI D. R. RAVISHANKAR, ADVOCATE) AND:
1. P. T. SADASHIVAIAH, SON OF LATE THOTADAPPA, AGED ABOUT 64 YEARS, 2. PARVATHAMMA, SON OF P. T. SADASHIVAIAH, AGED ABOUT 55 YEARS, ... PETITIONER 3. S. NANJUNDA, SON OF P. T. SADASHIVAIAH, AGED ABOUT 31 YEARS, RESPONDENTS NO.1 TO 3 ARE RESIDING AT PATTANAGERE VILLAGE, KENGERI HOBLI, BANGALORE SOUTH TALUK, BANGALORE-DISTRICT 4. THE COMMISSIONER RAJARAJESHWARINAGARA, CITY MUNICIPAL COUNCIL RAJARAJESHWARINAGAR, BANGALORE.
5. N. R. NAGARAJ, AGED ABOUT 40 YRS, SON OF LATE RAMEGOWDA, RESIDING AT NO.6, KATHARIGUPPE MAIN ROAD, BSK ITI STAGE, BANGALORE-85.
6. S. RAVINDRA REDDY, AGED ABOUT 40 YEARS, SON OF LATE S. V. REDDY, RESIDING AT NO.26, 4TH CROSS, BINNY LAYOUT III STAGE, VIJAYANAGARA, BANGALORE-40.
7. B. DINESH KUMAR, SON OF LATE BALARAM, AGED ABOUT 34 YEARS, RESIDING AT NO. 40/76, 20TH MAIN 2ND BLOCK, RAJAJINAGAR, BANGALORE-10.
8. SRI MADHUKESHWARA G. M., SON OF SRI MAHADEVAPPA G, AGED ABOUT 40 YEARS, RESIDING AT NO.674, 4TH MAIN, 3RD CROSS, 3RD STAGE, BEML LAYOUT, RAJARAJESHWARINAGAR, BANGALORE-98.
9. RAMESH V. AJAGANNANAVAR, SON OF SRI. VEERABASAPPA, AGED ABOUT 41 YEARS, No.763, 7TH MAIN, 5TH CROSS, 4TH STAGE, BEML LAYOUT, RAJARAJESHWARI NAGAR, BANGALORE-98.
... RESPONDENTS (BY SRI SHARATH S. GOWDA, ADV., FOR C/R8 AND R9; VIDE ORDER DATED 31.10.2017 NOTICE ON R1 TO R7 ARE DISPENSED WITH) …… THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDERS DATED 30.3.2017 VIDE ANNEXURE-E AND ORDER PASSED ON I.A.NO.25 DATED 19.7.2017 VIDE ANNEXURE-H PASSED IN O.S.NO.10349/2006 ON THE FILE OF THE 52ND ADDITIONAL CITY CVIIL JUDGE AT BANGALORE.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The plaintiff has filed the present writ petitions against the order dated 30-3-2017 rejecting I.A. for marking documents, i.e. declaration-cum-ratification deed 14-12-2000, General Power of Attorney dated 14- 12-2000, and agreement dated 15-3-1992, and the order dated 19-7-2017 passed on I.A. No.25 filed under Order XVI Rule 1(2) of the Code of Civil Procedure, 1908, summoning the President of REMCO (BHEL) House Building Co-operative Society Limited to produce the original documents sought therein, made in O.S.No. 10349/2006 on the file of the LII Addl. City Civil and Sessions Judge, Bengaluru City (CCH-53).
2. The petitioner, who is the plaintiff, filed a suit for permanent injunction to declare that the order passed by defendant No.4 dated 17-6-2016 is illegal, passed in excess of the jurisdiction vested and for consequential relief of mandatory injunction in respect of the schedule property, and for perpetual injunction restraining defendants No.1 to 3, 5 and 6 from interfering with the peaceful possession and enjoyment of the plaintiff, in relation to the suit schedule property.
3. It is the case of the plaintiff that defendant Nos.1 to 3 who are the owners in respect of the land bearing Sy.No.24/3, measuring 1 acre 35 guntas and the first defendant, who was also the owner of land bearing Sy.No.17/1 measuring 27½ guntas entered into an agreement with the REMCO (BHEL) House Building Co- operative Society Limited, on 29.04.1984. The said Society formed layout and allotted site No.286, presently Rajarajeshwari CMC Khatha No.1262/401/ 286 situated at Pattanagere village, Kengeri Hobli, Bengaluru South Taluk, Bengaluru, in favour of the plaintiff and he is in possession and enjoyment of the same. The defendants have no manner of right or title to interfere with the peaceful possession and enjoyment of the plaintiff. Therefore, filed suit for declaration and perpetual injunction.
4. The defendant Nos.1 to 3, 8 and 9 filed written statement, denied the plaint averments and contended that the very acquisition proceedings initiated on behalf of the REMCO (BHEL) House Building Co-operative Society Limited has been quashed and the same is confirmed by the Hon’ble Supreme Court and therefore, the plaintiff is not in possession of the property and suit is not maintainable and therefore, sought for dismissal of the suit.
5. Subsequently, when the matter was posted for arguments on the application, the plaintiff was permitted to cross-examine and was permitted to produce the documents. During the course of evidence, plaintiff wanted to produce the certified copy of the general power of attorney dated 14.12.2000, original agreement dated 15.03.1992 and declaration-cum- ratification deed dated 14.12.2000. The Trial Court, during the course of evidence by an order dated 30.03.2017 refused to admit the documents. In pursuance of the said order, plaintiff filed another application I.A.No.25 under Order XVI Rule 1(2) of Code of Civil Procedure to summon the President of the REMCO (BHEL) House Building Co-operative Society Limited to produce the original declaration-cum- ratification deed dated 14.12.2000, original General power of attorney dated 14.12.2000 and original agreement dated 15.03.1992. The said application was resisted by the defendants. The Trial Court, by order dated 19.07.2017, rejected I.A.No.25 mainly on the ground that the order passed by the learned Judge on 30.03.2017 was not challenged. Aggrieved by the said orders, the present writ petitions are filed.
6. After arguing the matter at length, Sri D.R.Ravishankar, learned counsel for the petitioner submits that if I.A.No.25 is allowed by this Court, he would not press W.P.No.34510/2017 and will confine his arguments only insofar as W.P.No.34511/2017. The submission is placed on record.
7. Sri Sharath S. Gowda, learned counsel for the caveator/respondent Nos.8 and 9 fairly submits that I.A.No.25 may be allowed subject to issuance of a direction to the Trial Court to dispose of the suit expeditiously. The submission is placed on record.
8. Having heard the learned counsel for the parties, it is not in dispute that the plaintiff filed suit for permanent injunction and declaration. The same was opposed by the defendants by filing written statement. It is also not in dispute that during the course of evidence, plaintiff wanted to produce the documents stated supra. Same was not allowed to be marked by the learned Judge, in view of the provisions of Section 123 of the Karnataka Co-operative Societies Act.
Therefore, the plaintiff was constrained to file another application I.A.No.25 under Order XVI Rule 1(2) of Code of Civil Procedure to summon the President of the REMCO (BHEL) House Building Co-operative Society Limited, to produce the original documents sought therein.
9. The Trial Court should have allowed to mark the documents or allowed the application. Unfortunately, the learned Judge has not allowed the plaintiff to mark the documents on the ground that they are not the certified copies. When the plaintiff wanted to summon the President of REMCO (BHEL) House Building Co- operative Society Ltd., rejected the application on the ground that the earlier order dated 30.03.2017 was not challenged. Virtually, the Trial Court passed an order disallowing the petitioner to prove possession by producing the documents, either certified copy or by summoning the documents. The power exercised by the Trial Court is not in accordance with law.
10. Since the learned counsel for the petitioner fairly submits that he will not press W.P.No.34510/2017 and the same is not opposed by the learned counsel for respondent No.8 and 9, W.P.No.34510/2017 is dismissed as not pressed.
11. The Order dated 19.07.2017 passed on I.A.No.25 is quashed as the reasoning given by the Trial Court is not in accordance with law. I.A.No.25 is allowed. The Trial Court shall proceed with the suit in accordance with law, without being influenced by any of the observations made by the Trial Court and this Court with regard to production of documents, whether original or certified copy. Accordingly, W.P.No. 34511/ 2017 is allowed. The contention of both the parties are kept open. All contentions with regard to production of documents by the Society are also kept open.
Ordered accordingly.
Sd/- JUDGE kcm