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2015 DIGILAW 1330 (KAR)

Mustaq v. Sayyadahmedali

2015-12-10

R.S.CHAUHAN

body2015
ORDER : R.S. Chauhan, J. 1. Aggrieved by the order dated 30-9-2015, passed by the Senior Civil Judge, Bailhongal, whereby the learned Senior Civil Judge has allowed the application filed by the respondent/defendant under Order 8, Rule 1-A(3) of Civil Procedure Code, 1908 and has permitted him to produce a notarised attested copy of agreement of sale dated 18-1-2012, the petitioner-Mr. Mustaq, has approached this Court. Briefly the facts of the case are that the petitioner-Mr. Mustaq, along with one Mr. Nagappa, filed a civil suit for specific performance of contract and permanent injunction against the respondent/defendant, Mr. Sayyadahmedali alias Babu. According to the petitioner, they had entered into an agreement of sale on 18-2-2012, with the respondent/defendant. Out of the consideration of Rs. 6,75,000/- they had paid Rs. 4,00,000/- to the respondent/defendant. It was agreed that the absolute sale deed would be executed on or before 25-4-2012, after the remaining balance amount was paid to the defendant. But despite the request made by the petitioner, and despite his willingness to pay the balance amount to the defendant, the defendant failed to execute the registered sale deed. Hence, the suit for specific performance. 2. The defendant-respondent field his written statement. In the written statement, he took a categorical stand that even in his reply to the legal notice sent by the petitioner, he had pleaded that he had executed an agreement to sell on 18-1-2012, with one Mohammad Wasim Neeralagi and Mr. Nagappa. He had agreed to sell the suit property for a consideration of Rs. 27,50,000/-. Out of the said amount, he had received Rs. 1,00,000/-. He therefore challenged the veracity of the alleged agreement to sale dated 18-2-2012, and he denied the other averments made in the plaint. 3. During the course of the proceedings, the respondent filed an application for summoning Mr. Mohammad Wasim Neeralagi, as a witness and for production of the original copy of the alleged agreement to sell dated 18-1-2012. For the respondent claimed that the original copy of the said agreement to sell was with Mr. Mohammad Wasim Neeralagi. However, when Mr. Mohammad Wasim Neeralagi was examined as a witness, he denied having possession of the said agreement dated 18-1-2012. Thereafter, the respondent moved an application under Order 8, Rule 1-A(3) of CPC. The said application has been allowed by the impugned order. Hence, this petition before this Court. 4. Mr. Mohammad Wasim Neeralagi. However, when Mr. Mohammad Wasim Neeralagi was examined as a witness, he denied having possession of the said agreement dated 18-1-2012. Thereafter, the respondent moved an application under Order 8, Rule 1-A(3) of CPC. The said application has been allowed by the impugned order. Hence, this petition before this Court. 4. Mr. A.S. Patil, the learned Counsel for the petitioner, has pleaded that the agreement to sell dated 18-1-2012, is a fabricated agreement. Secondly, it is merely a certified copy and a Xerox copy. Thirdly, the said agreement to sell is not even a registered document. Thus, the learned Civil Judge should not have allowed the application filed by the respondent. 5. On the other hand, Mr. Santosh B. Rawoot, the learned Counsel for the respondent, has submitted that since the respondent had taken a categorical stand in the reply submitted by him to the legal notice issued by the petitioner, since the existence of the agreement to sell dated 18-1-2012, is mentioned in the said reply itself, obviously the document is not a fabricated one. In order to prove its existence and veracity, the respondent had even sought to examine Mr. Mohammad Wasim Neeralagi, as witness. It is only after Mr. Mohammad Wasim Neeralagi had shown his inability to produce the said document, only after the certified copy of the said document was discovered by the respondent, that he had filed the application under Order 8, Rule 1-A(3) of CPC. Lastly, that the right to produce a document cannot be denied, although the admissibility of the document as a piece of evidence, and its evidentiary value would have to be assessed during the course of the trial. Therefore, the learned Counsel for the respondent had supported the impugned order. 6. Heard the learned Counsel for the parties and perused the impugned order. 7. Admittedly, while replying to the legal notice issued by the petitioner, the respondent had mentioned the fact there was an agreement to sell dated 18-1-2012, which was entered into between the respondent and Mr. Mohammad Wasim Neeralagi, and Nagappa. Thus, the said defence was stated by the respondent at the very first opportunity available to him. In order to establish the existence of the alleged agreement to sell dated 18-1-2012, the respondent had even summoned Mr. Mohammad Wasim Neeralagi as a witness. It is only after Mr. Mohammad Wasim Neeralagi, and Nagappa. Thus, the said defence was stated by the respondent at the very first opportunity available to him. In order to establish the existence of the alleged agreement to sell dated 18-1-2012, the respondent had even summoned Mr. Mohammad Wasim Neeralagi as a witness. It is only after Mr. Mohammad Wasim Neeralagi had shown his inability to produce the said document, that the respondent had filed the application under Order 8, Rule 1-A(3) of CPC. Therefore, the learned Counsel for the petitioner is unjustified in claiming that the agreement dated 18-1-2012 is a fabricated document. Hence the first contention raised by the learned Counsel is unacceptable. 8. As far as the question of admissibility of the document and its evidentiary value are concerned, the petitioner is free to raise all his objections with regard to these issues before the learned Trial Court. Merely because the admissibility of the evidential value of the document needs to be examined, by the learned Trial Court, it is not a valid ground for not permitting the production of the documents before the learned Trial Court. Thus, the learned Civil Judge was justified in permitting the respondent to produce the document before the Court. For the reasons stated above, this Court does not find any illegality or perversity in the impugned order. This petition, being devoid of any merits, is hereby dismissed. No order as to costs.