IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR WRIT PETITION Nos.2012-2013 OF 2018 (GM-CPC) BETWEEN 1. Sri. Nalluraiah, S/o. Late Chikkaiah, Aged about 64 years, 2. Smt. Lakshmamma, W/o. Nalluraiah, Aged about 58 years, 3. Sri. Lokash, S/o. Nalluraiah, Aged about 40 years, 4. Smt. Parvathi, W/o. Lokesh, Aged about 32 years, 5. Sri. Ashok, S/o. Nalluraiah, Aged about 36 years, 6. Smt. Rekha, D/o. Nalluraiah, Aged about 33 years, 7. Smt. Jayamma, W/o. Late Ranga, Aged about 56 years, 8. Sri. Alok @ Lokesha, S/o. Late Ranga, Aged about 34 years, 9. Sri. Anand, S/o. Late Ranga, Aged about 32 years, All are residing at Chodenahalli Village, Kasaba Hobli, Periyapatna Taluk, Mysore District-571107.
(By Sri. Pancham R.D., Advocate) AND 1. K.K.Anand S/o. Kushalappa, Aged about 48 years, R/at Nagegowda Extension, Mulusoge Village, Kushalnagar Hobli, Somvarpet Taluk, North Coorg-571234.
2. Chikkaveerappa, S/o. Late Chikkaiah, Aged about 56 years, 3. Smt. Puttamanni, W/o. Chikkaveerappa, Aged about 51 years, 4. Smt. Sowmay, D/o. Chikkaveerappa, Aged about 31 years, 5. Smt. Ramya, D/o. Chikkaveerappa, Aged about 28 years, …Petitioners Respondent No.2 to 5 are R/at Chowdenahalli Village, Kasaba Hobli, Periyapattana Taluk, Mysore District-571107.
Respondent No.4 is presently R/at 12th Cross, A.D.J., Near New Carmel School, Mookambika Nagara, Hosakere Halli, Bengaluru-560085.
(By Sri. K.A.Ariga, Advocate for Sri. Charan Kumar K.V., Advocate, for R1;
…Respondents R2 – Served; Notice to R3 to R5 is held sufficient) These Writ Petitions is filed under Article 227 of the Constitution of India praying to quash the order dated 01.01.2018 passed by the court of Senior Civil Judge and JMFC, Periyapatna, in O.S.127/2015, on the I.A. IV filed under Section 66 of the Indian Evidence Act and I.A. V filed under Section 65(a) of the Indian Evidence Act, at Annexure-A.
These Writ Petitions coming on for preliminary hearing in ‘B’ group this day, the court made the following:
ORDER Heard the petitioners’ counsel and the counsel for respondent no.1.
2. Plaintiffs in O.S.127/2015, on the file of the Senior Civil Judge and JMFC, Periyapatna, have filed these petitions challenging the order dated 1.1.2018 passed on I.A.Nos. IV and V filed under section 66 and 65(a) of the Indian Evidence Act respectively. The facts are as follows:-
3. The plaintiffs have filed the suit seeking declaration that they are the absolute owners of the plaint schedule property and to declare further that the sale deed dated 16.4.2009 is null and void. They have also sought possession of the plaint schedule property. According to the plaintiffs they and defendants 2 to 5 entered into agreement with the first defendant on 4.10.2008 for selling the plaint schedule property to him for a total consideration of Rs.19,91,250/-. Thereafter, they executed a sale deed in favour of defendant no.1 on 16.4.2009. It is stated that in the sale deed the sale consideration was shown as Rs.2,40,000/- instead of Rs.19,91,250/- in order to minimize the stamp duty and such other charges. Taking advantage of the sale consideration amount shown in the sale deed, the first respondent did not pay the balance. According to the plaintiffs, Rs.13,51,250/- is due. Since the first defendant did not pay the amount in spite of repeated requests, they had to file the suit for the above reliefs.
4. In the course of proceedings of the suit, the petitioners filed an application under Order XII Rule 8 of CPC seeking production of the original agreement dated 4.10.2008 from the first respondent. This application appears to have been not decided. Thereafter, they made two applications, one under section 66 and another under section 65(a) of the Indian Evidence Act (the ‘Act’ for short). By making these two applications, the petitioners wanted to lay foundation for secondary evidence i.e., the xerox copy of the agreement which was available with them. These two applications were dismissed. Hence, the petitioners are before this court in these writ petitions.
5. Learned counsel for the petitioners submits that the original agreement dated 4.10.2008 is with the first defendant. Xerox copy is with the petitioners. Therefore, the petitioners sought production of the original from the first defendant. Since the xerox copy cannot be marked without laying foundation for production or marking of secondary evidence, the petitioners made these applications. The trial court dismissed the applications and therefore the petitioners are not in a position to mark the xerox copy. He further argues that section 65a of the Act is very much applicable in the circumstances made out. Learned trial Judge has held that section 65a is not applicable. This finding of the trial court is not sustainable and therefore the impugned order needs to be set aside and the petitioners be permitted to mark the xerox copy of the sale agreement.
6. Learned counsel for the first respondent submits that the application was actually filed under Section 65A of the Act and not section 65(a). Application under section 65A of the Act is not maintainable. His submission is that section 65A of the Act is applicable when evidence relating to electronic records is sought to be tendered in evidence. Since the application itself is not maintainable, the learned trial Judge is right in dismissing these two applications. He further argues that the petitioners must first show that the document is available with the first defendant. In the written statement, the first defendant has clearly denied the agreement dated 4.10.2008. Such being the circumstance, the trial court has come to a right conclusion that section 65a of the Act is not applicable and therefore there is no need to interfere with the reasoned order passed by the trial court.
7. After hearing both the sides, it has to be stated that the very approach of the trial court appears to be some thing strange. It is the plaintiffs clear case that there came into existence an agreement between them and the first respondent on 4.10.2008 and the original is with the first defendant. It is clearly stated in the plaint that the original is available with the first defendant. For this reason, the petitioners in the first instance made an application under Order XII Rule 8 CPC seeking production of the agreement. In the background of the pleadings of the plaintiffs, unless the agreement dated 4.10.2008 is proved to have come into existence, their suit for declaration cannot be actually considered at all or in other words the reasons given by the petitioners for claiming the relief of declaration is actually based on the recitals found in the agreement dated 4.10.2008. If according to the petitioners there did come into existence the agreement dated 4.10.2008 and that they have a copy of the same, I think that the petitioners are justified in making applications under section 66 and 65(a) of the Act.
8. In I.A.IV, section 65A might have been mentioned, but it cannot be given so much importance, wrong mentioning of a provision of law need not be viewed seriously. Actually it is an application filed under section 65(a) of the Act. In the said section, the word ‘appears’ is employed, and it leads to a different approach. Usually the agreement of sale will be with the purchaser. The first defendant might have denied in the written statement execution of the sale agreement dated 4.10.2008. But, mere denial should not be the reason for dismissing the said two applications. ‘Appears’ can be interpreted to presume that the original agreement may be with the purchaser whatever may be the specific defence of the first defendant, at least for the limited purpose of permitting the xerox copy to be marked, the word ‘appears’ can be given this kind of interpretation. What the court should have noticed is that the plaintiff is laying foundation for production of secondary evidence, and nothing more. If the petitioners are permitted to mark the xerox copy of the agreement, it does not mean that the plaintiffs’ case will get established merely on the basis of xerox copy. Even to accept the xerox copy of the sale agreement as a proof of transaction, the petitioners should bring forth other circumstances which help the court to take a decision that there did take place an agreement dated 4.10.2008. Unless these circumstances are proved, the plaintiffs’ case will not get established. Therefore, the learned trial Judge could have granted the applications. It is made very clear that mere marking of xerox copy of the agreement does not amount to establishing plaintiffs case, all the surrounding circumstances have to be considered for coming to right and proper conclusion about the transaction in question. For these reasons, I find that the impugned order is not sustainable, they need to be set aside. Hence, I pass the following order : -
(a) Writ Petitions are allowed.
(b) The order dated 1.1.2018 on I As IV & V filed in O.S.127/2015 on the file of the Senior Civil Judge and JMFC, Periyapatna, stands quashed.
(c) Petitioners are permitted to mark xerox copy of the agreement of sale dated 04.10.2008.
Sd/- JUDGE ckl