IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF DECEMBER, 2017 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR WRIT PETITION NO.12896/2017 (GM-CPC) BETWEEN:
SRI.G. SRINIVASA S/O. GOVINDA SHETTY AGED ABOUT 48 YEARS, SHOP NO.27/7, SITUATED AT 1ST FLOOR, THE TOWN SAHAKARA SANGHA (N), COMPLEX D.G.ROAD, TURUVEKERE – 572 227 ... PETITIONER (BY SRI. SUNIL KUMAR FOR SRI.M.N.MADHUSUDAN, ADVOCATE) AND:
THE TOWN SAHAKARA SANGHA (N) REP. BY ITS MANAGER SRI.T.G.ARUN KUMAR AGED ABOUT 47 YEARS, D.G.ROAD, TURUVEKERE-572 227 ... RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DTD. 2.3.2017 PASSED ON THE MEMO DTD. 30.11.2016 FILED IN O.S.NO.211/2015 VIDE ANNEX-E.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard Sri.Sunil Kumar, learned counsel appearing on behalf of Sri.Madhusudan for petitioner. Perused the case papers.
2. Respondent herein has filed a suit O.S.No.211/2015 against writ petitioner-defendant seeking decree of ejectment and also for recovery of arrears of rent.
3. On service of suit summons, defendant has appeared, filed his written statement and denied the averments made in the plaint. During the pendency of the proceedings an application came to be filed by the defendant to direct the plaintiff to furnish lease agreement entered into between plaintiff and Nursing Home, which was said to have been inducted subsequent to issuance of termination notice to defendant. It was the claim of defendant that the ground on which ejectment was sought for by the plaintiff is suit schedule property is in a dilapidated condition and said plea is false since plaintiff themselves had leased out second floor to one Dr.Asha K. Choudri for a period of 25 years for running a Nursing Home under lease agreement dated 29.01.2010, which would establish the falsity of plaintiff’s claim. Said application is said to have been allowed, pursuant to which plaintiff has furnished photocopy of lease agreement dated 29.01.2010 including letter addressed by it to Dr.Asha K. Choudri dated 29.01.2010 and resolution dated 27.01.2010.
4. On account of these documents being photocopies, they were not marked and as such defendant filed a memo and sought for a direction being issued to plaintiff to produce the original documents. Said memo was opposed by plaintiff by filing objections as per Annexure-D. Trial Court after considering the arguments of learned Advocates appearing for parties has noticed that plaintiff has stated that original of these documents is not in its custody and as such, same cannot be directed to be produced by plaintiff. On these grounds memo filed by defendant came to be rejected, which is impugned in the present writ petition.
5. When writ petitioner–defendant had filed an application under Order XI Rule 14 CPC seeking for a direction to plaintiff to produce said documents and same had been allowed by trial Court and if plaintiff has not produced the said documents, defendant can make use of non-production of said documents at the time of final arguments before the trial Court. A party cannot be compelled to produce the document if he/she/they were to contend that original document not being in its custody. Hence, trial Court has rightly refused to entertain the memo. This Court finds there is no error committed by the trial Court.
Subject to observations made hereinabove, this writ petition stands rejected.
SD/- JUDGE DR