At, High Court of Karnataka
By, THE HONOURABLE MR. JUSTICE KRISHNA S. DIXIT
For the Petitioner: D. Prabhakar, Advocate. For the Respondents: R1 to R4, B.N. Prakash, Advocate.
(Prayer: This Writ Petition is filed Under Article 227 of the Constitution of India praying to quash/ set aside the order dated 07.12.2020 on application filed u/s 63 and 65 of the Indian Evident Act, in O.S.No.25188/2012 by the learned LXXIII Additional Civil and Sessions Judge, Mayo Hall Unit (CCH-74) Bangalore, vide Annexure-A.)Through Physical Hearing:1. Petitioner being the first defendant in a money suit in O.S.No.25188/2012 is invoking the writ jurisdiction of this Court for assailing the order dated 07.12.2020, a copy whereof is at Annexure - A, whereby respondents' application filed under Sections 63 & 65 of Indian Evidence Act, 1872, seeking leave to produce the secondary evidence having been favoured, leave has been accorded by the learned LXXIII Additional City Civil Judge, Mayo Hall, Bengaluru.2. The respondents having entered Caveat through their counsel, vehemently resist the writ petition making submission in justification of the impugned order and the grounds on which it has been structured.3. Having heard the learned counsel for the parties and having perused the petition papers, this Court declines to grant indulgence in the matter for the following reasons:a) the respondents at several paragraphs in their plaint have specifically asserted as to the transaction comprised in the MOU in question; there is some indication as to the said transaction in paragraph 19 of petitioner's Written Statement relevant part of which reads as under:"... The plaintiffs and the 1st defendant have infact entered into a MOU, prior to execution of sale deeds, as there were several impediments to finalise the sale transaction and as such several terms and conditions were set forth for completion of the sale transaction. That in the meanwhile because of the world wide recession in the overall scenario and the Banks and other financial institutions having stopped lending to the real estate sector, the defendants have expressed their inability to proceed with the sale transaction at the price stipulated in the MOU and sought to cancel the MOU and to proceed with the construction in terms of the JDA, as the rights accrued under the JDA in favour of the 1st defendant was intact and there was no impediment in proceedings with the terms of JDA in case of the parties failing to comply with the MOU."the above contention constitutes a sufficient foundation for invoking the provisions for leading secondary evidence; the vehement argument of petitioner's counsel that the MOU mentioned in the above paragraph relates to some other transaction is a matter for trial and nothing stated in the impugned order shall be construed otherwise at this stage;b) the learned trial judge has also taken note of the demand of the respondents for the production of the document in question from the side of the petitioner who denied its existence; merely because a party to the proceeding denies the existence of the original document or the very transaction, which interested litigants more often than not do for obvious reasons, one cannot hastily jump to a conclusion that the transaction comprised in such a document was not there at all; as already mentioned above, the specific plea in the Written Statement coupled with respondents' demand for production of the original document, constitute a sufficient bedrock on which the impugned order is laid; such discretionary orders do not merit a deeper scrutiny at the hands of Writ Court exercising the restrictive supervisory jurisdiction constitutionally vested under article 227 vide SADHANA LODH Vs. NATIONAL INSURANCE CO. LTD., (2003) 3 SCC 524;c) the vehement contention of the counsel for the petitioner that certain observations per se in the impugned order are likely to be construed as to the existence of the document in original can be taken care of by making it clear that no such inference shall be drawn by what is stated in what is challenged; the learned judge of the Court below has only permitted the respondents to produce and mark a photostat copy of the document and that does not amount to proving the transaction comprised therein; it hardly needs to be stated marking of a document is one thing vouching the transaction contained therein by leading substantive evidence is another; the impugned order is confined to the former and that, the latter scenario is yet to come, depending upon the amount & quality of evidence which the propounder of the document would lead in accordance with rules of evidence; in this connection, all contentions of both the sides are kept open, and,d) lastly, the impugned order accords with the exposition of law in relation to production of secondary evidence, as meticulously discussed by this Court in SOMASUNDARAM Vs. DEVAKI SRINIVASAN, (2014) SCC ONLINE KAR 1270 & the Andhra Pradesh High Court decision in M.ARUNA Vs. TRILOK KUMAR SANGHI, (2009) SCC ONLINE AP 91, after referring to the decisions of Apex Court, this Court and other High Courts; even otherwise, the impugned order has brought about a just result regardless of arguable lacunae therein; such orders cannot be invalidated by a Writ Court in e
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xercise of extraordinary jurisdiction of the kind.In the above circumstances, this writ petition being devoid of merits, is rejected.However, the observations of the Court below in the impugned order shall not be construed as having vouched the transaction in question comprised in the document which is sought to be produced & marked, further course for its proof being yet to be taken. All contentions of the parties are kept open.No costs.Learned judge of the Court below is requested to try & dispose off the suit in question within an outer limit of one year.