IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF MAY 2017 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR WRIT PETITION NO.8517 OF 2017 (GM-CPC) BETWEEN:
M/s. SOS Children’s Village Represented by Zonal Director Mr. Titus Poovakulam Bengaluru Unit at No.49 Hulimavu, near Meenakshi Temple SOS Post, Banneraghatta Road Bengaluru – 560076 …Petitioner (By Sri. Dwaraka Nath H.S., Advocate) AND:
Dr. G.T. Channa Reddy Aged about 75 years S/o late Sri.G. Thippaiah Residing at No.807, 5th Cross 10th Main, Koramangala 4th Block Bengaluru - 560034 ... Respondent (By Sri. Harish H.V., Advocate) This Writ Petition is filed under Articles 226 & 227 of the Constitution of India praying to quash the orders dated 23.01.2017 vide Annexure-A passed by the Court of small causes at Bengaluru SCCH-13 in S.C.No.1072/2015 with respect to I.A. filed under order XIII Rule 3 read with Section 151 of the Code of Civil Procedure.
This Writ Petition coming on for Orders this day, the court made the following:
ORDER Heard Sri. Dwaraka Nath H.S., learned counsel appearing for the petitioner and Sri. Harish H.V., learned counsel appearing for the respondent. Perused the case papers.
3. Respondent herein has filed a suit in S.C. No.1072/2015 on the file of Court of small causes, Bengaluru for ejectment of writ petitioner-defendant contending interalia that it is a tenant under the plaintiff and also for mesne profits.
4. Writ petitioner herein, on service of suit summons, appeared and filed its written statement and denied the averments made in plaint except to the extent expressly admitting that plaintiff being the owner of suit schedule property.
5. During the course of trial, plaintiff produced a copy of lease agreement dated 14.11.1990 which came to be marked as Ex-P16. Subsequently, defendant filed an application under Order XIII Rule 3 of CPC marked at Annexure-E to reject Ex-P16 contending interalia that said document is not duly registered and it is a compulsorily registerable as indicated under Section 107 of the Transfer of Property Act, 1882 (for short the ‘TP ACT’); it is written on a insufficient stamp paper and as such it has to be impounded. On these grounds, it was contended that Ex.P.16 is an inadmissible document. Said application came to be resisted by plaintiff by filing statement of objections as per Annexure-F. Trial Court after considering rival contentions, rejected the application on the ground that mere marking is not a proof by itself and the same is to be proved in accordance with law and this can be examined only after full-fledged trial. It was also held that said document was not compulsorily registerable document.
6. Though learned advocates appearing for respective parties have vehemently argued and reiterated the contentions raised before the trial Court, it requires to be noticed, in so far as the document in question which came to be marked as Ex-P16 is a copy of the original and plaintiff has contended before trial Court suit that original is in the custody of the defendant and this has been denied by the defendant in the written statement filed.
7. In so far as the contentions with regard to the document in question being compulsory registerable, the issue is no more res-integra in view of law laid down by the Apex Court in case of Satish Kumar vs Zarif Ahmed & Ors disposed of on 20.02.1997 whereunder it has been held that a conjoint reading of first part of Section 107 read with Section 17(1) (d) of Registration Act, does not indicate that lease of a immovable property other than an instrument where the lease is for year to year, or for any term exceeding one year should be made only by a registered instrument and all other instruments, though reduced into writing and possession is delivered thereunder, are not compulsorily registerable instruments, finding recorded by the trial Court cannot be found fault with. Said finding recorded by the trial Court stands affirmed. However, as rightly observed by the trial Court, mere marking of the document would not amount to proof. The execution and contents of same has to be proved by the propounder. It is because of this precise reason trial Court has observed that said aspect can be considered after a full-fledged trial. Hence, it would suffice to direct the trial Court to consider the admissibility of the said document after recording the evidence that would be tendered by the parties and on the ground of Interlocutory Application filed by respondent under Order XIII Rule 3 read with Section 151 of CPC having been rejected, trial Court shall not refuse to examine said issue or in other words, trial Court shall as observed in paragraph 13 of the impugned order consider the admissibility of said document (Ex. P16) at the time of final arguments. No opinion is expressed in this regard and contentions of both parties are kept open.
Accordingly, writ petition stands disposed of.
In view of the disposal of the writ petition on merits, I.A. No.1/2017 does not survive for consideration. Hence, I.A. No.1/2017 stands rejected.
Ordered accordingly.
SD/- JUDGE Mds/sb