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1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JUNE, 2020 BEFORE THE HON’BLE MR. JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO.7026 OF 2020 (GM-CPC)
BETWEEN:
MR. MELVIN ISAAC AGED ABOUT 48 YEARS S/O MR. MICHAEL ISAAC PATRICK R/A. 2ND FLOOR NO.5/30 NEW NO.30 MUNIVEERAPPA LANE LINGRAJAPURAM BANGALORE-560 084.
…PETITIONER
(BY SRI KIRAN S.ROZARIO, ADVOCATE)
AND:
MR. MICHAEL ISAAC PATRICK AGED ABOUT 82 YEARS R/A GROUND FLOOR & 1ST FLOOR NO.5/30 NEW NO.30 MUNIVEERAPPA LANE LINGRAJAPURAM BANGALORE-560084.
MR. MARTIN ISAAC AGED ABOUT 52 YEARS S/O MR. MICHAEL ISAAC PATRICK R/A GROUND FLOOR & 1ST FLOOR NO.5/30 NEW NO.30 MUNIVEERAPPA LANE
2 LINGRAJAPURAM BANGALORE-560084. ...RESPONDENTS
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 08.11.2019 IN I.A.NO.2 OF 2019 PASSED IN O.S.NO.25336/2014 ON THE FILE OF THE LXXII ADDITIONAL CITY CIVIL AND SESSION JUDGE, MAYOHALL BENGALURU CCH-73 (VIDE ANNEXURE – A) AND ETC.,
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THROUGH VIDEO CONFERENCE THE COURT MADE THE FOLLOWING:
ORDER
The petitioner who was the defendant in the trial court is before this Court aggrieved by the order dated 08.12.2019 passed on I.A.No.2/2019 in O.S.No.25336/2014 by LXXII Additional City Civil and Sessions Judge, Mayohall, Bengaluru, rejecting the said I.A.No.2/2019 filed under Order XI Rule 12 read with Section 151 of Code of Civil Procedure seeking for a direction to respondent No.2 to produce certain documents numbering about 17 as per the said application.
The suit in O.S.No.25336/2014 has been filed by the father and brother of the petitioner seeking for ejectment and possession of the suit schedule property.
It is the contention of the petitioner that the petitioner has contributed his funds for the purpose of construction of the second floor, in which, he is presently residing and possessed, and the suit is also related to the said second floor, the petitioner had filed I.A.No.2/2019 contending that the documents listed in the said application are essential for adjudicating the case. The said documents are in the possession and in the power of respondent No.2 and are related to the matter in issue in the suit.
The said application came to be opposed by the respondents herein/the plaintiffs therein contending that the documents are not at all relevant to
4 adjudicate the subject matter of the said suit which is one for eviction and possession, the application was filed only to protract the proceedings.
Accepting the said objections, the trial Court vide its order dated 08.11.2019 has rejected the said application holding that the main defence of the petitioner was that he had contributed his funds towards the construction of the second floor and therefore ought not to be evicted. The production of the documents which have been sought for are relating to the income tax, plan sanction, etc., would not in any manner establish the contribution made by the petitioner for the construction of the second floor. Therefore, the trial Court being of the opinion that the petitioner was unable to establish the relevancy of the documents and has dismissed the application.
The petitioner is before this Court aggrieved by the said order contending that the trial Court ought to
5 have allowed the application since the documents have relevancy in the matter since they touch upon the schedule property and the construction put up thereof.
Having considered the submission made by Sri Kiran S. Rozario, learned counsel appearing on behalf of the petitioner and having perused the application in I.A.No.2/2019, it is seen that the documents can be classified into three sets, as follows:
7.1. The financial details relating to respondent No.2 7.2. The registered documents being gifted vide gift deed executed in favor of the respondent No.2 by respondent No.1 7.3. The sanction plan pertaining to the suit schedule property.
6 8. The first set of the documents namely, the financial details/statements pertaining to respondent No.2 would not have any relevancy in the matter to establish the contribution made by the petitioner for construction of the second floor or otherwise. It is for the petitioner to establish by cogent independent evidence about his contribution, the financial details of the respondents would not in any manner help the petitioner to prove the petitioner’s contribution, which is the contention taken up by the petitioner in his written statement before the trial Court.
The second classification of document sought for i.e., the gift deed which has been sought for production is one which is registered under the Indian Registration Act, 1908, which is a public document. Therefore, the petitioner could have always applied for the certified copy and produce the same as secondary evidence.
7 10. Though the original Gift Deed and Sanctioned plan would be primary evidence in terms of Section 62 of Indian Evidence Act, 1872 (‘IE Act’, for short), in terms of Section 63 a certified copy of the said document could be marked as secondary evidence. In terms of Section 74(2) of IE Act all public records of private documents would amount to a public document. Thus, the Gift deed being a public record of a private document would amount to a public document under Section 74 of IE Act. In terms of Section 76 of IE Act, however a public officer having custody of the public document shall allow the said document to be inspected, as also, on demand, furnish a copy of the same on payment of legal fees thereto together with a certificate written that it is a true copy of such document. In terms of Section 77 of IE Act, certified copy of a public document may be produced in proof of the contents of the public document.
8 11. In terms of Section 65(e) and (f) when the original is a public document, secondary evidence can be led by way of producing the certified copy thereof. Such being the case, the document which is sought for being readily available for the petitioners to produce and mark in evidence, the filing of the Application under Order XI Rule 12 for direction to respondents to produce the said document was not permissible.
The third classification of document sought for i.e., copy of the sanction plan. The said sanction plan is also a public document and is one which is available and one which would be made available to the petitioner to file an application under the Right to Information Act, 2005.
In terms of RTI Act all citizens have been given the right to apply for and obtain the information which would include the copies of documents in terms of Section 3 of the RTI Act.
Section 2(f) of the RTI Act defines information as under:
“2(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force;”
Section 4 of the RTI Act requires all public authorities or authorities subject to the RTI Act to maintain all the records in a proper and required manner and as also, furnish the same when applied for in terms of Section 6.
In view of the above the respondent could have always applied to the plan sactionng authority to furnish a copy of the sanctioned plan under the RTI Act.
A party to the proceedings if having the opportunity, ability and recourse to either obtain
10 the certified copies of the public documents and/or apply for and obtain the same under the RTI act, in my considered opinion such a party cannot be permitted to file an application under Order XI Rule 12 and seek for production of documents when such a party had access to the document/s in the public domain. This of course is subject to the exception where there is a dispute relating to the signatures and/or the like which would require production of the original document and the production of certified copy would not serve the purpose of justice, in such circumstances after the party produces the certified copy of the document or that obtained under RTI could demonstrate the requirement of production of Original of the document and seek for such order, which could be considered by the court.
11 18. In view of all the above discussion, I find no reason to interfere with the order dated 08.12.2019 passed on I.A.No.2/2019 in O.S.No.25336/2014 by the LXXII Additional City Civil and Sessions Judge, Mayohall, Bengaluru. Hence, the writ petition stands dismissed.
In view of the dismissal of the main petition, I.A.No.1/2019 does not survive for consideration and the same is also dismissed.
Sd/-
JUDGE
KTY