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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF NOVEMBER 2020
BEFORE
THE HON’BLE MR.JUSTICE S.G.PANDIT
WRIT PETITION No.7765/2020 (GM-CPC) BETWEEN:
SRI. T SRIPADARENU, AGED ABOUT 60 YEARS, S/O LATE DR. THIMMAIAH, RESIDING AT SWAPNALOK APARTMENT, NO.28, AGA ABBAS ALI ROAD, HALASURU, BANGALORE – 560 042. ...PETITIONER
(BY SRI. ABHINAV RAMANAND A, ADV.)
AND:
DR. T . THIMMAIAH SINCE DEAD BY HIS LRs. 1. MRS. VIJAYALAKSHMI, AGED ABOUT 78 YEARS, W/O LATE DR. THIMMAIAH,
SRI. T KENGALA MURTHY, AGED ABOUT 55 YEARS, S/O LATE DR. THIMMAIAH,
2 3. SRI. T VENKAT VARDAN, AGED ABOUT 55 YEARS, S/O LATE DR. THIMMAIAH,
ALL ARE RESIDING AT NO.18/2, 3RD CROSS, NANDIDURGA ROAD, BANGALORE – 560 046. …RESPONDENTS
(BY SRI. B K SAMPATH KUMAR, ADVOCATE )
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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH AND SET ASIDE ORDER DATED 4TH MARCH 2020 PASSED BY THE LD. XXIV ADDL. CITY CIVIL AND SESSIONS JUDGE (CCH-6), BANGALORE CITY IN O.S.NO.1153 OF 2007, IN RELATION TO I.A.NO.22 AND 23 FILED THEREIN BY THE PETITIONER HEREIN ANNEXURE-A AND ETC.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED ON 22/10/2020 THROUGH VIDEO CONFERENCE COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:
3 O R D E R
This petition under Article 227 of the Constitution of India is challenging the order dated 04.03.2020 on I.A.Nos.22 and 23 filed under Order XVI Rule 6 of CPC in O.S.No.1153/2007 on the file of 24th Additional City Civil and Sessions Judge, Bengaluru City.
Petitioner is the defendant and respondents are plaintiffs in O.S.No.1153/2007 filed praying for a judgment and decree to declare that the plaintiff and his family members have been in possession and enjoyment of the suit schedule property and acquisition of the suit schedule property is for the benefit of the whole family of the plaintiff and to declare that the plaintiffs are entitled to 3/4th share in the suit schedule property.
The above suit is filed on the ground that the father of the plaintiffs (a to c) and defendant purchased the property in the name of defendant under a registered sale deed dated 20.03.1978.
The original plaintiff
4 Dr.T.Thimmaiah was an IAS Officer in the State Government. The defendant was a student studying II year Engineering Course at the time of purchasing the suit schedule property and he was completely depending upon the original plaintiff for his education and his maintenance. The purchase of the residential site in the name of the defendant is stated to be for the benefit of whole family.
The defendant filed his written statement denying the entire case of the plaintiffs except admitting the relationship. After completion of the evidence of plaintiffs and when the evidence of defendant was partly recorded, the petitioner/defendant filed I.A.Nos.22 and 23 under Order XVI Rule 6 of CPC to summon a copy of the statement of assets and liabilities reported to the Government during 1977-78 and as on the date of attaining superannuation and construction put up on the suit schedule property during the year 1985-86 relating
5 the father of the plaintiffs and defendant from the Secretary, DPAR, Government of Karnataka and Income Tax Returns along with the balance sheet, profit and loss account filed by the deceased Dr.T.Thimmaiah for the years 2007-08 to 2013-14 from the Deputy Commissioner, Income Tax, Circle-VI (2)(1) of Income Tax Department, Bengaluru. In the affidavit it is stated that the original plaintiff Dr.Thimmaiah was serving in the Government of Karnataka as an IAS Officer and Service Rules requires to disclose the assets purchased by him or his family members every year. Further, it is stated that the father of the plaintiffs was required to take permission to purchase any immovable property. The said documents are very relevant materials for adjudication of the dispute between the parties. Hence, it is prayed to allow the applications. Further in the affidavit filed in support of I.A.No.23, it is stated that the father of plaintiffs and defendant was filing income tax returns. If the schedule property was acquired by him out of his own funds, the
6 same would have been reflected in the income tax returns. Therefore, the defendant prayed for calling for income tax returns from the Income Tax Department.
The said two applications were opposed by the plaintiffs by filing objections. The plaintiffs stated that those applications are filed belatedly when the matter is set down for arguments. It is further stated that earlier the defendant had filed I.A.No.6 under Order 11 Rule 11 and 14 of CPC for a direction to the plaintiffs to produce the same documents which have been now sought in I.A.Nos.22 and 23. The said application was rejected. As the said order has become final, it is not open for the defendant to file the present applications. Further the plaintiffs stated that the information sought for by the defendant is personal information of late Dr.Thimmaiah, father of plaintiffs and defendant. It is not permissible to summon those documents. The plaintiffs also contended that there is no pleading to that effect and in the absence
7 of any pleading, any amount of evidence would be of no relevance. Thus, the plaintiffs pray for dismissal of I.A.Nos.22 and 23.
The trial Court, under the impugned order rejected I.A.Nos.22 and 23 on the ground that those documents are not necessary for the purpose of deciding the case and further observed that the documents sought to be produced are confidential and private in nature to the deceased original plaintiff and they cannot be summoned. It is also observed that there is no pleading in that regard. Aggrieved by the said order of rejection of I.A.Nos.22 and 23, the defendant is before this Court in this writ petition.
Heard the learned counsel for the petitioner Sri.Abhinav Ramanand and Sri.B.K.Sampath Kumar, learned counsel for the respondents through video conference.
8 8. Learned counsel for the petitioner would submit that the impugned order rejecting I.A.Nos.22 and 23 under Order XVI Rule 6 of CPC is wholly erroneous and the same is result of non-application of mind. It is contended that the material sought under the applications are material relevant for just adjudication of the issues involved in the suit. It is his submission that when it is the contention of the plaintiffs that the schedule property is acquired in the name of the defendant out of the funds of late Dr.Thimmaiah for the benefit of entire family, to disprove the same, the documents now sought under the applications are very much necessary and relevant. Referring to Order XVI Rule 6 of CPC, he submits that the petitioner has sought for production of documents such as copy of statement of assets and liabilities submitted by Dr.Thimmaiah and Income Tax Returns to know as to whether Dr.Thimmaiah had informed the Government about purchase of the suit schedule property, as he was required to take permission from the State Government as
9 well as to know whether there is mention about the purchase of the property in the Income Tax Returns. Further, the learned counsel would also submit that under All India Service Rules, if a property is acquired in the name of the family members, intimation to the Employer is necessary as Dr.Thimmaiah was serving as an an IAS Officer in the State Government. Further, the learned counsel relying upon various judgments submitted that the observations of the trial Court that documents sought are confidential in nature and private documents.
Per contra, learned counsel for the respondents justifies the order passed by the trial Court. He submits that on an earlier occasion, the defendant had filed I.A.No.6 under Order 11 Rule 11 and 14 of CPC seeking a direction to the plaintiffs to produce the documents referred to in the impugned applications. The said I.A. came to be dismissed and it has become final which fact
10 has been suppressed by the defendant while filing the impugned applications. Further, learned counsel would submit that there is no pleading by the defendant with regard to the documents in question. In the absence of pleading, any amount of evidence would be of no relevance. Further, it is contended that since the documents sought for by the petitioner are in the nature of personal and confidential, the trial Court rightly dismissed the applications.
The suit of the plaintiffs is one for declaration to declare that the suit schedule property is acquired for the benefit of the entire family by late Dr.Thimmaiah and to declare that the plaintiffs are entitled to 3/4th share in the schedule property on the ground that the suit schedule property is purchased in the name of defendant Sri.T.Sripadarenu under a registered sale deed dated 20.03.1978 out of the fund of Dr.Thimmaiah for the benefit of the entire family. When it is a specific case of
11 the plaintiffs that the property is acquired by Dr.Thimmaiah, father of the plaintiffs and defendant in the name of the defendant out of his own funds, it is for the plaintiffs to prove their case. If the plaintiffs fail to place on record the best evidence in favour of their case, the Court will have to draw adverse inference.
Order XVI Rule 6 of CPC reads as follows:
“6.Summons to produce document:- Any person may be summoned to produce a document, without being summoned to give evidence, and any person summoned merely to produce a document shall be deemed to have complied with the summons if he causes such document to be produced instead of attending personally to produce the same”.
When the documents are sought to be summoned under the above rule, it is for the party who intends to summon the documents to satisfy the Court with regard to requirement and necessity of the documents. Unless the Court based on the material on record comes to the
12 conclusion that the application lacks bonafides, could not refuse the prayer for summoning the documents or witness. The documents now sought to be produced are the documents of more than 40 years. At this length of time, whether those documents are available or not is not indicated by the defendant in his applications. The application under the above provision shall be filed in accordance with Rule-80 of Karnataka Civil Rules of Practice, 1967. Rule -80 reads as follows. “80.(1) Summons for the production of documents or records in the custody of a public officer other than a Court shall be in Form No.6 and shall be addressed to the Head of the Office concerned.
Note.- Where the summons is for the production of village accounts, field measurement books or other village records, such summons shall be addressed to the Tahsildar concerned.
(2) Every application for such summons shall be supported by an affidavit setting out (i) the document or documents, the production of which is required, (ii) the relevancy of the document or documents, and (iii) in cases where the production of a certified copy
13 would meet the purpose, whether an application was made to the proper officer for a certified copy or copies and the result of such application.
(3) No Court shall issue such summons unless it considers that the production of the original is necessary or is satisfied that the application for a certified copy has been duly made but has not been granted. The Court shall, in every case, record its reason in writing and shall, before the summons is issued, require the applicant to deposit in Court such some as it may consider necessary to meet the estimated cost of making a copy of the document when produced and sufficient postage stamps for the transmission and retransmission of the document, in addition to the prescribed process fee”.
A careful reading of the above provision would indicate that an application filed under Order XVI Rule 6 of CPC shall indicate the documents sought for by the applicant; the relevancy of the document or documents and whether an application for obtaining certified copy or copies was made and the result of the same. Further Sub-rule (3) of Rule 18 of 1967 Rules requires that the Court shall not issue summons for production of
14 documents, unless it considers that production of original documents is necessary and application for a certified copy has been duly made, but has not been granted.
The affidavit filed in support of the application under Order XVI Rule 6 of CPC is silent with regard to relevancy of the document and the efforts made by the petitioner to get the certified copies of those documents. Moreover, when the petitioner/defendant is seeking for production of assets and liabilities said to have been submitted by the father of the defendant in the year 1978-1979, which means documents of more than 40 years, the petitioner ought to have stated the availability or otherwise of the document. If the Court comes to the conclusion that production of documents sought for by the petitioner is relevant and necessary, then it is for the petitioner to satisfy the Court with regard to availability. In the absence of availability of documents, no direction could be issued.
The observation of the trial Court that documents sought for by the petitioner/defendant are confidential in nature and private document depends on the facts of each case. The documents are not sought for by any third person so as to make those documents to public domain. But those documents are sought for by the legal representatives of late Dr.Thimmaiah from the authorities to resolve their family dispute. If the Court finds from the material on record that those documents are very much necessary to resolve once for all the issue involved in the suit, the Court could certainly summon those documents by issuing a direction under Order XVI Rule 6 of CPC.
The contention of the respondents/plaintiffs that on earlier occasion, I.A. filed under Order 11 Rule 11 of CPC seeking direction to the plaintiffs to produce the same documents was rejected by order dated 02.12.2015 and hence the present applications are rightly rejected has no merit. A perusal of order dated 02.12.2015 would
indicate that the application under Order 11 Rule 11 of CPC was rejected on the ground that the plaintiffs’ evidence is completed and case is posted for defendant’s evidence. The rejection of application under Order 11 Rule 11 of CPC would not come in the way of making application under Order XVI Rule 6 of CPC. The purpose and intention behind both provisions are different and distinct.
The applications I.A.Nos.22 and 23 would not satisfy the requirement of Rule 80 of 1967 Rules and as such the said I.As are liable to be rejected, but not for the reasons stated by the trial Court. It is open for the petitioner/ defendant to make fresh application under Order XVI Rule 6 of CPC if he is so advised stating the relevancy of the document and efforts made to get the certified copies of the documents and also the availability of documents at this length of time. Unless the petitioner/defendant
17 convinces the Court with regard to availability of forty years old documents, the Court would not be in a position to consider such application and to issue any direction under Order XVI Rule 6 of CPC.
With the above observations the writ petition is disposed of.
Sd/-
JUDGE
mpk/-* CT:VK