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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF SEPTEMBER, 2017
BEFORE
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
WRIT PETITION NO.35334/2017 (GM-CPC)
BETWEEN:
SRI H.D.VIJAYAKUMAR S/O LATE H.DEVANNA, AGED ABOUT 58 YEARS, CARRYING ON BUSINESS AT NO.65, 5TH MAIN ROAD, GANDHINAGAR, BANGALORE-560 009.
SRI H.D.SHIVAKUMAR S/O LATE H.DEVANNA, AGED ABOUT 60 YEARS,
CARRYING ON BUSINESS AT NO.65, 5TH MAIN ROAD, GANDHINAGAR, BANGALORE-560 009. ... PETITIONERS
(BY SRI G.V.P.DAS, ADV., FOR SRI H.R.ANANTHA KRISHNA MURTHY, ADV.,)
AND:
SRI DINESH
S/O LATE B.R.MULANI,
AGED ABOUT 60 YEARS,
R/AT NO.56/1, 1ST FLOOR,
MADHAVANAGAR,
BANGALORE-560 020.
SRI BABALU
S/O VINOD KUMAR R.MULANI,
AGED ABOUT 58 YEARS,
R/AT NO.56/1, 1ST FLOOR,
MADHAVANAGAR,
BANGALORE-560 020.
... RESPONDENTS
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER I.A.NO.4 DATED 4.6.2016 PASSED BY THE HON'BLE PRL. CITY CIVIL SESSION JUDGE AT BENGALURU IN O.S.NO.6309/2008 AT ANNEXURE-E.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners are plaintiffs in O.S.No.6309/2008, which is the suit for specific performance pending on the file of City Civil Judge, Bangalore.
During trial, the plaintiffs/petitioners herein filed an application under Order XVI Rule 6 read with Section 151 of Code of Civil Procedure, 1908, seeking issuance of summons to the Assistant Commissioner of Income Tax, Circle 7(1), Bengaluru, to summon the original contract of sale dated 27.07.1998, in respect of which, the suit for specific performance is filed. The trial Court by the impugned order dated 04.06.2016 has dismissed the said application. Being aggrieved, this writ petition has been preferred.
I have heard the learned counsel for the petitioners and perused the material on record.
The suit is one for specific performance of agreement to sell dated 27.07.1998. It is the case of the petitioners that the said agreement along with other documents have been seized by the Income Tax
Department pursuant to a survey conducted on petitioners’ premises under Section 133 A of the Income Tax Act, 1961 on 12.09.2006.
Learned counsel for the petitioners drew my attention to legal notice dated 23.07.2012 issued by the Chartered Accountant to the Assistant Commissioner of Income Tax, Circle 7(1), Bengaluru, seeking release of all the documents, which were seized during the survey. According to him, there was no response or reply to the said letter. In the circumstances, the petitioners would have to only seek production of that document from the custody of the Assistant Commissioner of Income Tax. Therefore, an application was filed under Order XVI Rule 6 read with Section 151 of Code of Civil Procedure, 1908, seeking a direction to the Assistant Commissioner of Income Tax, Circle 7(1), Bengaluru, to produce the original agreement to sell dated 27.07.1998.
Although, the burden of proving the said agreement is on the plaintiffs of the suit, in the absence of original agreement to sell and the same being in the custody of Income Tax Department, plaintiffs could have issued a notice to the Department to produce the said agreement as according to the plaintiffs, it is in the custody of the Department. No such specific request has been made by the plaintiffs to the Income Tax Department. A general notice has been issued on behalf of the plaintiffs seeking release of the documents, which were seized during survey.
The question as to whether those documents could be released or not is a matter, which is within the domain of the Department. But had the plaintiffs sought for production of the original agreement from the custody of the Department by seeking a specific request under Section 65 of the Indian Evidence Act, 1872, the
same could have been in compliance with Clause (a) of Section 65 of the said Act and depending on the response to the said notice, plaintiffs could have either relied upon the original document or seek to produce a copy of the same by way of secondary evidence, as burden of proving the said document lies on the plaintiffs. Instead of taking the said route, the plaintiffs have sought a direction to the Assistant Commissioner of Income Tax to produce the agreement to sell.
The trial Court was justified in dismissing the said application, firstly, because, it is not stated that the said agreement is in the custody of the Department in specific terms and secondly, when a copy is available, plaintiffs have not made an attempt to seek production of the original agreement under Section 65(a) of the Indian Evidence Act, 1872 and in the absence of the original agreement, a copy of the same could be
produced by way of secondary evidence. Therefore, the trial Court was justified in dismissing the said application. Hence, I do no find any infirmity in the order of the trial Court. There is no merit in the writ petition.
Hence, writ petition is dismissed.
Sd/- JUDGE