IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF AUGUST 2017 BEFORE THE HON’BLE MRS. JUSTICE B.V. NAGARATHNA WRIT PETITION Nos.1233 & 21096 OF 2016 (GM-CPC) BETWEEN:
1. SRI.C.R.SHIVAKUMAR, S/O.LATE.C.B.RUDRAPPA, AGED ABOUT 78 YEARS, FLAT NO.C-304, “SHARADA NIVAS”, 15TH CROSS, INDIRANAGAR 2ND STAGE, BENGALURU-560038.
(SINCE DECEASED) REPRESENTED BY PETITIONER NOS.2(B) & (C) HEREIN 2. SMT.UMA SHIVAKUMAR, SINCE DECEASED AND REPRESENTED BY HER LR’S (A) SRI.C.R.SHIVAKUMAR, S/O.LATE.C.B.RUDRAPPA, AGED ABOUT 78 YEARS, FLAT NO.C-304, “SHARADA NIVAS”, 15TH CROSS, INDIRANAGAR 2ND STAGE, BENGALURU-560038.
SINCE DECEASED REPRESENTED BY PETITIONER NOS.2 (B) & (C) (B) SRI.HARSHA C.S, S/O.SRI.C.R.SHIVAKUMAR, AGED ABOUT 49 YEARS, FLAT NO.C-304, “SHARADA NIVAS”, 15TH CROSS, INDIRANAGAR 2ND STAGE, BENGALURU-560038.
(C) SAMYUKTA.C.S, W/O.SRI.DINESH KUNCHAM, AGED ABOUT 39 YEARS, ‘THE GREEN’, A1 THAYYAL BUILDING 4, APARTMENT NO.117, STREET NO.5, DUBAI, U.A.E.
REPRESENTED HEREIN BY HER BROTHER AND POA HOLDER MR.HARSHA C.S, THE PETITIONER NO.2(B) HEREIN …PETITIONERS (BY SRI.M.S.RAGHAVENDRA PRASAD, ADVOCATE) AND:
1. SRI.H.C.RAJENDRA, S/O.LATE H.M.CHANNABASAPPA, AGED ABOUT 58 YEARS, RESIDING AT:NO.255/B-1, COSMOPOLIS, 10TH MAIN, 1ST CROSS, HAL 2ND STAGE, DEFENCE COLONY, INDIRANAGAR, BENGALURU-560038.
2. THE BENGALURU DEVELOPMENT AUTHORITY, B.D.A.COMPLEX, T.CHOWDAIAH ROAD, KUMARA PARK WEST, BENGALURU-560020. …RESPONDENTS (BY SRI.B.R.VISWANATH, ADV., FOR R-1, SRI.M.N.RAMANJANEYA GOWDA, ADV., FOR R-2) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA WITH A PRAYER TO QUASH/SET ASIDE THE COMMON ORDER DT.21.11.2015 REJECTING THE RELIEFS SOUGHT AS PER INTERLOCUTORY APPLICATION FILED UNDER ORDER XI RULE 14 R/W SEC.151 OF CPC SEEKING A DIRECTION TO THE R-2 TO PRODUCE FOUR DOCUMENTS AS DETAILED THEREIN AND I.A. FILED UNDER ORDER XVIII RULE 17 R/W SEC.151 OF CPC, 1908 SEEKING AN ORDER RECALLING PW-1 FOR FURTHER EXAMINATION-IN-CHIEF PASSED BY THE LEARNED XLI ADDL. CITY CIVIL JUDGE (CCH NO.42) BENGALURU IN O.S.NO.6914/2005 VIDE ANNX-A AND CONSEQUENTLY ALLOW THE SAID APPLICATION AS PRAYED FOR THEREIN.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING: -
ORDER Though these writ petitions are listed for preliminary hearing ‘B’ Group, with consent of learned counsel appearing on both sides, they are heard finally.
2. The petitioners are the legal representatives of deceased plaintiffs. The original plaintiffs filed the suit in O.S.No.6914/2005, which is pending on the file of XLI Additional City Civil Judge at Bangalore, seeking the relief of specific performance of an agreement dated 28.3.1980.
3. During the pendency of the suit an application was filed by the plaintiffs under Order XI Rule 14 r/w Section 151 of the Code of Civil Procedure, 1908 (for short ‘the CPC’) seeking a direction to the 2nd defendant – the Bangalore Development Authority (for short ‘the BDA’) to produce the following documents :-
“1. Original letter dated 19.1.1978 written by Sri.H.C. Rajendra and received by the Bangalore Development Authority on 9.2.1978.
2. Original lease cum sale agreement entered into between Bangalore Development Authority and Sri.H.C. Rajendra in respect of Site No.1108, Sarakki 1st Phase, Bangalore registered in the office of the Sub-Registrar.
3. Office copy of the letter from Bangalore Development Authority to the Sub- Registrar, Bangalore South forwarding the lease cum sale agreement to the Sub Registrar for registration, with the acknowledgement of H.C. Rajendra dated 9.8.1978 for having received the agreement.
4. Original affidavit dated 28.06.1978 furnished by Sri.H.C. Rajendra regarding loss of allotment letter of site No.515, HAL 2nd Stage.”
4. By impugned order dated 21.11.2015 the said application has been rejected. Being aggrieved the plaintiffs have preferred these writ petitions.
5. I have heard the learned counsel appearing for the petitioners and learned counsel for respondents and perused the material on record.
6. The contention of the petitioners is that defendant No.1 has disputed his signature on the agreement of sale dated 28.3.1980, whereas he has admitted the signature of the power of attorney on the same date. In order to seek specific performance of the said agreement, burden is cast on the plaintiffs to prove their case. In view of the signatures being disputed by defendant No.1 and in order to discharge their burden plaintiffs filed an application under Order XI Rule 14 r/w Section 151 of CPC and also under Order XVIII Rule 17 r/w Section 151 of CPC, the said applications ought to have been allowed by the Trial Court, is the submission.
7. Per contra, learned counsel for respondent No.1 submits that there are sufficient number of documents available on record on which the signatures of defendant No.1 are not in dispute and those documents are sufficient for the purpose of proving the disputed signature of defendant No.1 on the agreement to sell and hence, there was no necessity for the plaintiffs to have filed such applications at the fag end of the suit.
8. Learned counsel appearing for respondent No.2 also echoes the same submission as made by the learned counsel appearing for respondent No.1.
9. In response petitioners’ counsel submits that the BDA has contended in the statement of objections filed to the applications that the petitioners can take certified copies of the aforesaid documents from BDA and produce them before the Court, which would not serve the purpose of the petitioners, inasmuch as certified copies cannot be considered for the purpose of comparing the signatures, which are disputed by defendant No.1 on the agreement of sale.
10. From the submission, it would establish that the aforementioned documents are available with the 2nd respondent – the Bangalore Development Authority. Having regard to the fact that the suit is one for specific performance of the agreement to sell dated 28.3.1980 and the fact that the suit is filed in the year 2005 and presently the suit is pending adjudication in the year 2017, Prima facie it is observed that the signatures of defendant No.1 in 1980 would not be the same as the signatures after two to three decades. The signature of a person always changes with passage of time. Therefore, the petitioners have sought for production of contemporaneous documents, as the agreement to sell is dated 28.3.1980 in respect of which the defendant No.1 has disputed his signatures. When these documents are available with the BDA, they could be made available by directing BDA for production of the documents for the purpose of comparing the signatures of defendant No.1 with the disputed signatures on the agreement dated 28.3.1980, which would only assist the Court to come to a proper conclusion vis-à-vis relief claimed by the petitioners.
11. In the circumstances, the impugned order dated 21.11.2015 is quashed and the writ petitions are allowed. The 2nd respondent – BDA is directed to produce the aforesaid documents as directed and on the date stipulated before the trial Court.
12. At this stage, learned counsel for respondent No.1 submits that the suit is of the year 2005 and the disputed agreement is of the year 1980 and that respondent No.1 is facing uncertainty for all these years and that a direction may be issued to the trial Court to expedite the disposal of the suit.
13. There is considerable force in the submission made by learned counsel for respondent No.1. The trial Court is directed to dispose of the suit in an expeditious manner within a period six months from the date of receipt of a certified copy of this order.
14. It is needless to observe that the parties shall co-operate with the trial Court for an expeditious disposal of the suit.
Sd/- JUDGE NG* CT: RG