DAYARAM S/O LATE DASHRATHRAO SONSALE vs. GOVIND S/O LATE DASHARATHRAO SONSALE AND ORS

- - W.P.No.102731/2013 1 IN THE HIGH COURT OF KARNATAKA GULBARGA BENCH DATED THIS THE 29TH DAY OF OCTOBER, 2013 BEFORE THE HON'BLE MR.JUSTICE RAM MOHAN REDDY W.P.No.102731 OF 2013 (GM-CPC) BETWEEN: Dayaram S/o Late Dashrathrao Sonsale, Age: 58 years, Occ: Business, R/o H.No.8-975/1, Iyyarwadi, Gunj Area, Gulbarga – 585 101. … Petitioner (By Sri Manvendra Reddy, Govt. Advocate) AND: 1. Govind S/o late Dasharathrao Sonsale, Aged about 54 years, Occ: Business, 2. Jagannath S/o late Dashrathrao Sonsale, Aged about 52 years, Occ: Business, 3. Prakash S/o Late Dasharathrao Sonsale, Aged about 50 years, Occ: Business, All R/o H.No.8-975/1, Iyerwadi, Gunj Area, Gulbarga. … Respondents This Writ Petition is filed under Articles 226 & 227 of the Constitution of India, praying to issue a writ in the nature of certiorari thereby quashing the impugned order dated 03.06.2013 on I.A.No.IX passed in OS.No.241/2007 by the I Addl. Senior Civil Judge at Gulbarga vide Annexure-K and etc.

- - W.P.No.102731/2013 2 This petition coming on for Preliminary Hearing this day, the Court made the following: ORDER Rejection of plaintiff’s I.A.No.VIII under Order 7 Rule 14(3) r/w Section 151 of the Code of Civil Procedure (for short ‘CPC’) and I.A.No.IX under Order 16 Rule 6 r/w 151 of CPC in O.S.No.241/2007 by order dated 03.06.2013 of the I Addl. Senior Civil Judge, Gulbarga, has resulted in this petition. 2. Indisputably, I.A.No.IX under Order 16 Rule 6 CPC was filed for the second time in the suit, while the first being I.A.No.VII invoking the same provision was rejected with cost by order dated 09.01.2013 which is final and binding. 3. Having regard to the well settled position in law that general principle that finding recorded on an interlocutory application in the suit, which has become

- - W.P.No.102731/2013 3 final at an earlier stage of the proceeding would be res-judicata and cannot be re-agitated at a subsequent stage of the same proceeding, I.A.No.IX was not maintainable. 4. It is not in dispute that the document sought to be produced is none other than photo copies of certain Income Tax returns filed by the defendant and regard being had to Rule 14(3) CPC, in the absence of a foundation for adducing secondary evidence under Section 65 of the Evidence Act, 1887, the trial Court was fully justified in rejecting the application. The observation of this Court in Gafarsab @ Sati Gafar Sab vs Ameer Ahamed1, that a party must lead evidence setting out the reasons for non-production of primary evidence, is applicable on all its fours to the facts of this case.

1 ILR 2006 KAR 169

- - W.P.No.102731/2013 4 5. In my considered opinion, no exception can be taken to the reasons, findings and conclusion arrived at by the trial Court in the order impugned. Petition is accordingly rejected. Sd/- JUDGE LG