IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MRS.JUSTICE S.SUJATHA WRIT PETITION No.57754/2018 (GM-CPC) Between:
Sri.Syed Javed Ahmed, S/o. Late. S.A.Khayum, Aged about 50 years, Residing at No.9, Hayes Road, Richmond Road Cross Town, Bengaluru-560 025. ... Petitioner (By Sri.A.G.Shivanna, Adv., for Sri.Mudukappa Kodabal, Adv.,) And:
Smt. Radhamma, W/o. M.Narayana Reddy, Aged about 65 years, R/o No.3/2, Ambelipura Village, Koramangala Post, Bengaluru-560 034.
... Respondent This Writ Petition is filed under Article 227 of the Constitution of India praying to quash the order O.S.No.5748/2011 dated:13.12.2018 made on I.A.No.2 vide Annexure-A filed by plaintiff under Section 63 and 65 of the Indian Evidence Act r/w Section 151 of the Code of Civil Procedure, rejecting the application filed by the plaintiff to produce the certified copy of the agreement of sale dated:16.09.2002 as secondary evidence in the suit and allow the said application.
This Petition coming on for preliminary hearing this day, the Court made the following:
O R D E R The petitioner has challenged the order dated 13.12.2018 made on I.A.2 in O.S. No.5748/2011 by the VIII Addl. City Civil and Sessions Judge, Bengaluru.
2. The petitioner / plaintiff has filed the suit in O.S. No.5748/2011 against the defendant seeking for specific performance of agreement dated 16.09.2002. In the said proceedings, I.A.2 was filed by the petitioner on 10.07.2018 under Ss.63 and 65 of the Evidence Act and to let in secondary evidence. The said application being rejected, this writ petition is filed.
3. Learned counsel for the petitioner submits that the original agreement of sale dated 6 / 16.09.2002 was marked as Ex.D3 in O.S. No.850/2005. RFA No.2025/2011 has been filed against the Judgment and Decree passed in O.S. No.850/2005 before this Court and the matter is pending consideration. In the said proceedings, records being called before this Court, the petitioner is not in a position to produce the original sale agreement to adduce primary evidence. Hence, the certified copy of the said agreement was placed on record before the Trial Court and permission was sought to lead secondary evidence which has been dismissed by the Trial Court without appreciating the factual circumstances as aforesaid. Accordingly, seeks for allowing the writ petition by setting aside the order impugned.
4. I have given my anxious consideration for the arguments advanced by the learned counsel for the petitioner and perused the material on record.
5. It is a well settled law that in a suit for specific performance of the contract the fundamental aspect is, to prove the agreement of sale on which the plaintiff is placing reliance on. The basic requirement of producing the original document being sine-qua-non for adjudication of the dispute between the parties, the permission sought for by the petitioner to consider the secondary evidence based on the certified copy of the sale agreement has been rightly rejected by the Trial Court. It is further pertinent to note that though the suit was filed in the year 2011, the application I.A.2 has been filed on 10.07.2018 to lead secondary evidence on the certified copy of the sale agreement. The Trial Court has categorically observed that several adjournments were granted to the petitioner by imposing cost and despite the same, the petitioner has failed to adduce any evidence, and accordingly dismissed the application with cost of Rs.5,000/- payable to the defendant. There is absolutely no jurisdictional error in the order impugned.
Writ petition stands dismissed. However, if the original agreement of sale is placed on record by the petitioner within a period of two weeks, the same shall be considered in accordance with law by the Trial Court, in an expedite manner.
sac* Sd/- JUDGE