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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10th DAY OF DECEMBER 2018
BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE
WRIT PETITION NO.39931 OF 2018 (GM-CPC)
BETWEEN:
SMT.KAMALA
W/O LATE B. RAMA BHAT
SINCE DECEASED BY LRS PETITIONERS 2 TO 4 MENTIONED HEREUNDER
SHRI.B.VENKATARAMANA BHAT
S/O LATE RAMA BHAT
AGED ABOUT 65 YEARS
RESIDING AT DOOR NO.18 MIG, KHB COLONY
JAYANAAGARA
THONACHIKOPPAL CONNECTING LAYOUT
MYSURU – 560 001.
SMT.B.SARASWATHI
D/O LATE B.RAMA BHAT
AGED ABOUT 58 YEARS
RESIDING AT UPSTAIRS OF
DOOR NO.132, “VRINDAVANA”
21ST CROSS, A BLOCK, III STAGE, VIJAYANAGAR
MYSURU – 570 001.
SHRI.SHANKARA NARAYANA BHAT
S/O LATE B.RAMA BHAT
AGED ABOUT 56 YEARS
NO.24, II FLOOR, I MAIN
SHESHADRIPURAM
BENGALURU – 560 020.
… PETITIONERS
(BY SRI.G.KRISHNA MURTHY SR. ADV. FOR
SRI.PARIKSHIT S.S., ADV.)
AND:
SMT.V.SHARADA W/O LATE ISHWARA CHANDRA AGED ABOUT 55 YEARS RESIDING AT GROUND FLOOR DOOR NO.132, “VRINDAVANA” 21ST CROSS, A BLOCK, III STAGE VIJAYANAGAR MYSURU – 570 001. … RESPONDENT
(BY SRI.MANMOHAN P.N. ADV. FOR C/R) - - -
This Writ Petition is filed under Article 227 of the Constitution of India, with a prayer to set aside the order dated 26.07.2018 dismissing the application filed under Section 65 of the Indian Evidence Act, 1872 r/w Section 151 of the CPC in O.S.No.1135/2006 pending on the file of IV Additional Senior Civil Judge and JMFC, Mysuru (Annexure-F) and allow the application for marking of the document dated 15.09.1997 produced at Annexure-C.
This Petition coming on for preliminary hearing, this day, the Court made the following:-
ORDER
Sri.G.Krishna Murthy learned Senior counsel for Sri.Parikshit S.S., learned counsel for the petitioners.
Sri.Manmohan P.N., learned counsel for the caveator/respondent.
The petition is admitted for hearing, with consent of the parties, the same is heard finally.
In this petition under Article 227 of the Constitution of India the petitioners have assailed the validity of the order dated 26.07.2018, by which the application filed by the petitioners under Section 65 of the Indian Evidence Act, 1872 (hereinafter referred to as ‘the Act’ for short) has been rejected. In order to appreciate the petitioners challenge to the impugned order, few facts need mention, which are stated infra:
The respondent filed a suit seeking the relief of partition and separate possession in respect of ½ Share in suit properties and other incidental and ancillary reliefs. The petitioners filed a detailed written statement and denied the claim. It was pleaded that the suit properties are joint family properties and are not exclusive properties of late Eshwar chand viz., the husband of the plaintiff. It was also treated that burden of proving that items Nos.1 to 6 of the suit properties
are self acquired properties of late Eshwar Chand is on the plaintiff. The petitioners filed an application under Section 65 of the Act to mark the letter dated 15.09.1997 written by late Eshwar chand, which was addressed to Assistant Commissioner-Income Tax, which in fact, was replied to the notice issued by Income Tax department under Section 143 of the Income Tax Act, 1961 (hereinafter referred to as ‘the IT Act’ for short) . The Trial Court by an order dated 07.04.2014 allowed the aforesaid application subject to proof. The aforesaid order was challenged by the petitioners before this Court viz., W.P.No.16894/2017. A bench of this Court by an order dated 20.04.2017 quashed and set aide the order passed by the Trial Court and remitted the matter to the Trial Court to record a finding regarding admissibility of document, which was sought to be marked as an Exhibit. The Trial Court vide order dated 26.07.2018 dismissed the application preferred by the petitioners inter alia on the ground that even though Income Tax Department has
issued an endorsement that the original document is destroyed and the document sought to be marked is not a certified copy and there is no acknowledgement of receipt of such document by the concerned authority. In the aforesaid factual background, this petition has been filed.
Learned Senior counsel for the petitioners submitted that late Eshwar Chand viz., the husband of the plaintiff had sent a reply as per Section 143 (2) of the Act. It is further submitted that the document in question was a copy made from the original and since, the original document as per the endorsement sent by the Income Tax Department was destroyed, therefore, the provisions of Section 63 (3) & 65 (c) of the Act were complied with. It was also submitted that document was produced from proper custody and in any case could be used for collateral purposes. In support of his submission, learned Senior Counsel for the petitioners has referred to decisions of Supreme Court
in case of ‘PRITHI CHAND V. STATE OF HIMACHAL PRADESH’, AIR 1989 Supreme Court 702, NAWAB SINGH V. INDERJIT KAUR’, AIR 1999 Supreme Court 1668 and ‘BHAGWANJ AND KALYANJI V. PUNJABHAI HAJABHAI RATHOD’, AIR 2007 GUJ 88. Sarkar ‘Law of evidence’ 19th Edition Vol 1 Chapter V,.
On the other hand, learned counsel for the respondent submitted that petitioners have not placed foundation in the affidavit for leading secondary evidence. It is further submitted that the document in question does not contain any acknowledgement and it is not secondary evidence. It is further submitted that the petitioners have not complied with Section 63 of the Act. In support of aforesaid submissions, learned counsel for the petitioners has relied on a decision of the Supreme Court in ‘ASHOK DULICHAND VS. MADAHAVLAL DUBE AND ANOTHER’, AIR 1975 Supreme Court 1748. While referring to order dated
28.08.2017 passed by a Bench of this Court in W.P.No.16894/2017, it is submitted that the directions contained therein has not been followed in as much as no finding has been recorded by the Trial Court with regard to admissibility of the document.
I have considered the submissions made by the learned counsel for the parties and have perused the records. From perusal of the impugned order it is evident that the application under Section 65 of the Act filed by the petitioners has been rejected by the Trial Court on the ground that there is no receipt of the document by the concerned authority and the petitioners have not led any foundation about the aforesaid document in his written statement. Accordingly, the application has been dismissed. The crucial questions, which arise for consideration are whether the document in question viz., the reply to notice under Section 143(2) of the Income Tax Act dated 15.09.1997 is a secondary evidence within the meaning of Section 63 of the Act and whether the
petitioners have fulfilled the condition precedent for leading the secondary evidence as mentioned under Section 65 of the Act. The aforesaid crucial questions have not at all been adverted to by the Trial Court while passing the impugned order. In Sarkar ‘Law of evidence’ 19th Edition Vol 1 Chapter V, it has been observed by the learned author that it is not always easy, however, to determine what is the original document so as to constitute primary evidence in this sense: and sometimes the same documents as primary for one purpose and secondary for another( page 1523, commentary, primary evidence).
The Trial Court was required to examine whether the documents sought to be produced is a secondary evidence within the meaning of Section 63 of the Act i.e., whether it is a copy made from the original or a copy made from the original by mechanical process and whether condition precedent under Section 65 of the Act has been complied with. The Trial Court has not
at all adverted itself to the aforesaid aspect of the matter. Ordinarily this Court would have adverted to the aforesaid aspects of the matter, however, in case this Court records a finding on the aforesaid issues, the parties would be deprived of a Forum, therefore, this Court refrains to do so.
In view of preceding analysis the impugned order suffers from the error apparent on the face of the record, it is accordingly quashed and set aside. The matter is remitted to the Trial Court to decide the application filed by the petitioners under Section 65 of the Act afresh by a speaking order after hearing the parties in the light of observations made supra within one month from the date of receipt of a certified copy of the order passed today.
In the result, the petition is disposed of.
Sd/- JUDGE