IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 15TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 26252 OF 2019 (GM-CPC) BETWEEN:
1. SRI. KABBALEGOWDA @ KABBALAIAH S/O LATE DURGEGOWDA @ CHOTEGOWDA SINCE DEAD BY HIS LRS BROUGHT ON RECORD IN COMPLIANCE OF THE TRIAL COURT ORDER DATED 20/07/02 SMT CHIKKATHAYAMMA W/O LATE KABBALEGOWDA SINCE DEAD BY HER LRS BROUGHT ON RECORD IN COMPLIANCE OF THE TRIAL COURT ORDER DATED 24/12/14 1(A) SRI KUMAR K S/O LATE KABBALEGOWDA @ KABBALAIAH AGE 46 YEARS, 1(B) SRI LOKESH S/O LATE KABBALEGOWDA @ KABBALAIAH AGED ABOUT 44 YEARS, 1(C) SRI SWAMY K S/O LATE KABALEGOWDA @ KABBALAIAH AGED ABOUT 39 YEARS, ALL ARE RESIDENT OF KABBALU VILLAGE, SATHANUR HOBLI, KANAKAPURA TALUK, RAMANAGARA DISTRICT-562 126 … PETITIONERS (BY SRI. M VEERABHADRAIAH, ADVOCATE) AND:
1. SRI. D KRISHNEGOWDA S/O DURGEGOWDA AGED ABOUT 53 YEARS KABBALU VILLAGE, SATHANUR HOBLI KANAKAPRUA TALUK RAMANAGARAM DISTRICT-562 117 2. SMT PARVATHAMMA W/O SIDDEGOWDA AGED ABOUT MAJOR 3. SMT JAYAMMA D/O LATE DURGEGOWDA AGED ABOUT MAJOR RESPONDENTS NO. 2 & 3 ARE R/AT NO.325, 4TH T BLOCK, JAYANAGAR, BENGALURU-560 011 4. SMT SHIVAKALAMMA W/O RUDREGOWDA AGED ABOUT-MAJOR R/AT CHIKKEGOWDANADODDI VILLAGE, UYYAMBALLI HOBLI KANAKAPURA TALUK-562 126 … RESPONDENTS (BY SRI. SHANMUKHAPPA, ADVOCATE FOR R1;
V.C.O DATED 15.07.2019, NOTICE TO R2 TO 4 DISPENSED WITH) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMUGNED ORDER DATED 11.6.19 PASSED IN O.S.NO.190/1998 BY THE PRINCIPAL CIVIL JUDGE (JR.DN) AND JMFC KANAKAPURA, AS PER ANNEXURE-A CONSEQUENTLY DISMISS THE R-1 APPLICATION FILED U/O 7 RULE - 14(3) R/W SECTION 151 OF CPC AS PER ANNEXURE-N.
THIS PETITION COMING ON FOR PRELIMINMARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Petitioners being the defendants in 1st respondent’s suit in O.S.No.190/1998 for declaration and partition, are knocking at the doors of writ court for assailing the order dated 11.06.2019, a copy whereof is at Annexure-A, whereby, 1st respondent’s application filed under Order VII Rule 14 (3) r/w section 151 of CPC, 1908, having been allowed by the learned Principal Civil Judge (Jr. Dvn), Kanakapura, the said respondent is permitted to produce as many as fourteen documents. The contesting respondents having entered appearance through their counsel, resist the Writ Petition, the notice to other respondents having been dispensed with.
2. Learned counsel for the petitioners vehemently argues that the impugned order has the following errors apparent on its face: (a) there is absolutely no plea in respect of which the subject documents are permitted to be produced; (b) the trial judge wrongly treated respondents’ reply/replication of the 1st respondent as his pleadings; (c) the subject documents, some of which are non-existent, having been generated after the filing of the suit, Order VII Rule 14(3) of CPC does not avail for their production. So arguing, he seeks allowing of the Writ Petition.
3. Learned counsel for the contesting respondents contends with equal vehemence that subject documents are relevant to the adjudication of the case; his replication/reply is itself a pleadings and therefore, the said documents can be produced by way of evidence; there is no legal prohibition for production of the documents that come into existence after the filing of the suit, subject to relevancy and admissibility; all aspects having been considered by the court below, the impugned order has been made which does not call for interference at the hands of this court. So contending, he seeks dismissal of the Writ Petition.
4. Having heard the learned counsel for the parties and having perused the Petition Papers, this Court grants partial indulgence in the matter for the following reasons:
(a) admittedly, the suit is for a decree of declaration & partition; several issues having been framed, the trial is half a through; ideally speaking, parties to the suit under the amended CPC need to produce all the documents which they bank upon in support of their pleadings; however, production of documents that come into existence after the filing of the suit is an exception to this general rule. In Sarkar’s Code of Civil Procedure, 12th Edition published by LexisNexis at Page 1303, it is stated:
“Under CPC (Amendment) 1999 if any document or a copy thereof could not filed with the plaint under this rule, it could not be allowed to be received in evidence on behalf of the plaintiff at the hearing of the suit. There was complete embargo on the power of the Court and any such document could not be received in evidence at a later stage. This provision has been modified by the CPC (Amendment) Act, 2002, and now such document may be received in evidence with the leave of the court, which the Court shall grant in genuine cases.”
The Calcutta High Court in Kejriwal Enterprises Vs. General Manager, Ordinance factory, AIR 2004 Cal 225 has held that: “Even after omission of R.18, R.17A by Amendment Act, 1999, the documents which have not been presented along with the plaint or not entered in the list for being tendered in evidence, can be tendered in evidence with the leave of the Court under O.7, R.14(3).”
(b) ordinarily, no amount of evidence sans pleadings can be looked into, is true; however, this rule has some exceptions and one of them is when parties go to trial knowing each other’s case, the general rule is relaxed; in any event, the 1st respondent having filed his Rejoinder, that itself constitutes the pleadings as held by a Co- ordinate Bench of this Court in the case of Sree Abed Hussain Vs. Smt.Thaherabanu in W.P.Nos.47014- 15/2014 (GM-CPC), disposed off vide judgment dated 15.06.2015, vide para 4; Rule 3 (2) of Karnataka Civil Rules of Practice defines “pleadings” inter alia to include “replies & rejoinders, as well; the arguable observation to the contrary by the Division Bench of this court in the case of B.N.Padmanabaiah Vs. M/s Sri.Jayamurugarajendra Oil Mills, (1961) Mys LJ 904 being fact specific, cannot be taken to lay down the ratio at all; even otherwise also, a one single sentence “the reply statement cannot be said to be a part of the pleadings”, cannot be read as Euclids Theorem; this apart, the Karnataka Civil Rules of Practice, having been promulgated by this Court on the administrative side came into force w.e.f. 05.10.1967 i.e., long after the said decision, as rightly contended by Mr.Shanmukhappa; true it is that a reply/replication does not result into amendment of the plaint but that constitutes the pleadings;
(c) the first document namely the order dated 21.08.2014 passed by the Asst. Commissioner in DVS.CR33/99-2000 is between the parties; however, the same has been quashed by a Co-ordinate Bench of this court vide judgment dated 17.10.2014 in W.P.Nos.47397- 99/2014 (GM-R/C); the Apex Court in the case of Shree Chamundi Mopeds Ltd Vs. Church of South India Trust Association, AIR 1992 (2) SCR 999 has held that once an order is quashed, it no longer is in existence; therefore, this order cannot be produced; the document Nos.2, 3 & 4 are the concomitants of the document No.1 which no longer now exists and therefore, they also cannot be produced; however, all other documents are rightly permitted to be produced subject to rule of relevancy;
(d) the contention that some of the documents sought to be produced happen to be the judgments of this court and therefore, they cannot be treated as documents which the parties can produce by way of evidence, is bit difficult to countenance because of the text of section 43 of the Indian Evidence Act, 1872 which makes such documents relevant if they are inter parte; apparently, these judgments are between the parties to this Writ Petition;
(e) the other contention that some of these judgments are carried in Special Leave Petition that are still pending and therefore, they are not final judgments and consequently, they cannot be produced, is legally unsustainable inasmuch as a Special Leave Petition under Article 136 of the Constitution of India, is not the continuation of the proceedings at all; learned Author Sri.D.D. Basu in his Shorter Constitution of India, 14th Edition, Reprint 2011 at page 825 writes:
“the appellate power vested in Hon’ble Supreme Court under Article 136 of the Constitution is not to be confused with the ordinary appellate power exercised by appellate courts and Appellate Tribunals under specific Statutes. It is a plenary power, “exercisable outside the purview of ordinary law” to meet the pressing demand of justice … Article 136 is a special jurisdiction; it is residuary power; it is extraordinary in its amplitude, its limits, when it chases injustice, is the sky itself.”
Therefore, the argument that once a judgment of the court is carried in Special Leave Petition, it ceases to be a final judgment till after the Apex Court decides the Special Leave Petition, runs counter to the opinio juris of the Constitutional expert, as mentioned above.
In the above circumstances, this Writ Petition having been favoured in part, stands disposed off with the above observations, that shall not influence the trial and decision making in the suit.
The learned trial judge shall keep in mind the time frame prescribed by a Co-ordinate Bench of this Court for the disposal of the suit, in the earlier rounds of litigation.
No costs.
Sd/- JUDGE Snb/