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Karnataka High Court · body

2019 DIGILAW 2021 (KAR)

B. M. Keshavappa v. K. M. Jayarama Reddy

2019-09-17

G.NARENDAR

body2019
JUDGMENT : G Narendar, J. Heard the learned counsel for the petitioner and the learned counsel for the first respondent. The second respondent though served has remained unrepresented. 2. The case of the petitioner is that second respondent had executed an alleged agreement of sale in respect of the lands owned by him and comprised in survey No.66/2, measuring 171/2 guntas situated in Anneswara village, Kasaba Hobli, Devanahalli Taluk, Bangalore Rural District and subsequently by a registered sale deed dated 20.08.2007 he has executed an absolute sale deed in favour of the petitioner. That in the interregnum on 06.02.2007 the second respondent had executed a sale agreement to the first respondent herein-the plaintiff. 3. It is the case of the first respondent that he has paid a sum of Rs.9,00,000/- on the execution of the agreement in the following manner:- (a) Rs.1,00,000/- in cash. (b) Rs.4,00,000/- through Cheque bearing No.449944 dated 08.02.2007 drawn on Syndicate Bank, Ganganagar Branch, Bangalore. (c) Rs.4,00,000/- through Cheque bearing No.449949 dated 12.02.2007 drawn on Syndicate Bank, Ganganagar Branch, Bangalore. 4. That the total sale consideration agreed upon between the first and second respondent was Rs.13,78,125/- and that the name of the second respondent-Vendor had not yet been mutated in the revenue records and that he promised to execute the sale deed immediately after his name is mutated in the revenue records. That despite passage of time, the second respondent failed to take any steps to have the revenue entries mutated in his favour and hence the petitioner at his own cost and effort got the revenue entries changed in the name of the second respondent. That on 11.04.2007 the first respondent had paid a further sum of Rs.1,30,000/- to the second respondent. 5. That despite the fact of the revenue entries having been mutated in favour of the second respondent, the second respondent failed to come over and execute the sale deed by receiving the balance of sale consideration. Hence, the petitioner got issued a legal notice on 03.08.2007 calling upon the second respondent to perform his part of the contract and that the notice has been served upon the second respondent on 10.08.2007 and after the service of legal notice, the petitioner and second respondent have clandestinely got executed the sale deed. Hence, the petitioner got issued a legal notice on 03.08.2007 calling upon the second respondent to perform his part of the contract and that the notice has been served upon the second respondent on 10.08.2007 and after the service of legal notice, the petitioner and second respondent have clandestinely got executed the sale deed. It is not in dispute that the legal notice had not been replied to and the first respondent upon coming to know about the execution of the sale deed, has instituted the suit immediately on 18.09.2007. 6. The suit is resisted by both the petitioner and the second respondent, by filing a separate written statements. The first defendant therein has got filed his written statement on 14.11.2007 and the second defendant therein got filed his written statement on 15.12.2007. The entire plaint averments are denied. 7. It is alleged by the petitioner that the first respondent is a land developer and that he is resorting to illegal methods to coerce the land owners to part with their lands. That he and his uncle one Krishnappa had entered into an agreement with the second respondent herein for the purchase of the suit property for a valuable consideration of Rs.5,37,500/-. That the second respondent executed the sale agreement in favour of both the petitioner and his uncle said Krishnappa and that the second respondent has also received a sum of Rs.5,00,000/- by way of cash in consideration of the agreement and that the remaining sale consideration to be paid was Rs.37,500/- only. That the execution of the sale deed was put off on account of the name of the second respondent having not been entered in the revenue records like the Khatha etc. That as per the family arrangement the sale deed pertaining to the suit property has been registered in the name of the petitioner herein. It is relevant to note the pleading in para 5 of the written statement that the suit is a futile exercise as no right was vested in the second respondent to execute the sale agreement dated 06.02.2007 as long before that i.e. on 17.02.2006 the second respondent had already executed the sale agreement in favour of the petitioner and his uncle one D. Krishnapa and had also received the sale consideration under the said sale agreement. In a sense, this is the core of the defense set up by the petitioner and the second respondent. This appears to be foundation of the defense set up by the petitioner and the second respondent as the second respondent in his written statement has also admitted the execution of a sale agreement in faovur of the petitioner and his uncle in paragraph 7 of the written statement. The defendants proposed to set up a case that the petitioner has acquired a prior right and hence the suit is a futile exercise. In the light of the defense adopted by the defendants i.e. the petitioner and the second respondent, the alleged sale agreement assumes much significance and importance and it is the fulcrum of the defense set up to negate the claim of the plaintiff the first respondent herein. 8. In this background I.A. 12 came to be preferred by the petitioner-second defendant invoking the provisions of Section 65 of the Indian Evidence Act to introduce the alleged agreement of sale dated 17.02.2006. Section 65 of the Indian Evidence Act reads as under:- "65. Cases in which secondary evidence relating to documents may be given. (a) .. (b) .. (c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;" 9. In the circumstances detailed under Section 65(a), (c) & (d) of the Indian Evidence Act any secondary evidence of the contents of the documents is inadmissible. Clause (c) makes an interesting reading. It permits the introduction of secondary evidence, in the event the original has been destroyed or lost or when the party offering evidence of its contents cannot for any other reason produce it in a reasonable time. However, this right is not an absolute right vested in the litigant and is only a qualified right. It permits the introduction of secondary evidence, in the event the original has been destroyed or lost or when the party offering evidence of its contents cannot for any other reason produce it in a reasonable time. However, this right is not an absolute right vested in the litigant and is only a qualified right. The inability to produce, on account of the document being lost or destroyed, ought not to be on account of the parties own default or neglect i.e. in the event the reason which has led to inability of the parties to produce the documents should not be attributable to the party and the party should not be guilty of the default or neglect and if on account of his default or neglect the document is lost or destroyed, then such a party or litigant is precluded from availing the right vested under Clause (c) of Section 65 of the Indian Evidence Act,1872. 10. In this background, the reasons assigned require to be examined. In the affidavit filed in support of the application I.A. 12, it is deposed in paragraph 4 as under:- "4. I submit that on 23.01.2012, at about 8 PM in the morning I was carrying the original sale agreement dated 17.02.2006 executed by 1st defendant in favour of me RTC Extracts, Mutation Extract, Original sale deed dated 20.03.2007 executed by 1st defendant in favour of me, pertaining to the suit schedule property in a plastic cover and I was going on my bike in order to go to my advocate's office at Bangalore. Since I had to take breakfast I parked my bike near Devanahalli bus stand and went to Shanthi Sagara hotel and after taking the breakfast, I came out of the hotel and started my bike and went towards Bangalore. After some time I realized that I had not taken back the plastic cover (consisting of original documents) which was kept in the hotel. I immediately went back to the hotel and searched for the plastic cover consisting of the original documents. But I did not find the same. I enquired with the hotel staff. They also pleaded ignorance. I enquired with all the persons who were in hotel about my plastic bag consisting of original documents. But nobody could give any information. I immediately went back to the hotel and searched for the plastic cover consisting of the original documents. But I did not find the same. I enquired with the hotel staff. They also pleaded ignorance. I enquired with all the persons who were in hotel about my plastic bag consisting of original documents. But nobody could give any information. Therefore I went to Devanahalli police station and I gave the complaint to the police requesting them to handover the original documents to me in case of finding by them or if anybody hands over the original documents to them. Police told me to file a complaint duly notarized. Accordingly I filed a complaint to the Devanahalli police station. They have received the same and received the acknowledgment for having received the same." 11. From a reading of the above, it is apparent that the loss of the document is on account of the petitioner's/applicant's negligence. He deposes that he was carrying the documents in a plastic cover along with him and that he went into the hotel, had breakfast and left the hotel without carrying back the documents along with him and then, when he went back, after some time, he found that his documents were missing. Thus even if the narration is accepted as true, the loss of documents is on account of the petitioner's negligence only and not on account of any intervening factor. It is not the case that someone has stolen the documents or was destroyed by factors over which he had no control. On this short ground alone, the application requires to be rejected. That apart the application came to be resisted by the plaintiff-first respondent herein on several counts. 12. It was contended by the plaintiff-first respondent herein that there is no recital in the sale deed which evidences the execution of such a sale agreement. Nextly, he would contend and rightly so, that the petitioner has not laid a foundation for invoking Section 65 of the Indian Evidence Act by annexing a copy of the document along with the written statement as is mandated under Order VIII Rule 1 (a) of the Civil Procedure Code. Nextly, he would contend and rightly so, that the petitioner has not laid a foundation for invoking Section 65 of the Indian Evidence Act by annexing a copy of the document along with the written statement as is mandated under Order VIII Rule 1 (a) of the Civil Procedure Code. He would submit that the same is mandatory and having failed to lay a foundation by producing a copy of the same along with the written statement the petitioner is estopped from invoking the provisions of Section 65 of the Indian Evidence Act. As rightly contended by the first respondent the petitioner could have probabalised his case had he produced a copy of the same along with written statement as mandated under Order VIII Rule 1(a) of the Civil Procedure Code. Non production of the document along with the written statement assumes significance, in the facts and circumstances of the case. Firstly, it is hard to believe that he has paid the sale consideration by way of cash and has not adduced any material to demonstrate the same. Secondly, it is his case that he has paid a sum of Rs.5,00,000/- in one go and that too by cash which in the opinion of this court tinges the case of the petitioner. Even the list of documents is not produced before this court. Further the stamp paper on which it is typed, i.e. the documents sought to be produced, is in the name of one D. Krishnappa and the agreement is also in the joint names of petitioner and the said D. Krishnappa and the case is sought to be made out, that the said D. Krishnappa is his uncle and he has released the lands in his favour as rightly pointed out by the first respondent. There is no such recital in the sale deed. Thirdly, the contention that there is no pleading as to how the petitioner obtained the xerox copy of the document also merit consideration and makes the case of the petitioner doubtful. In the opinion of this court, it was incumbent upon the petitioner to have stated the source of the document. It is not the case of the petitioner that a copy was retained by the second respondent and he has furnished the same. In the opinion of this court, it was incumbent upon the petitioner to have stated the source of the document. It is not the case of the petitioner that a copy was retained by the second respondent and he has furnished the same. Further as rightly contended by the first respondent the failure to issue a public notice also makes the case of the petitioner doubtful. 13. It is relevant to note the contrary pleas set up by the petitioner and the second respondent who are defendants in the suit. The petitioner-second defendant claims that the plaintiff-first respondent is the holder of the adjacent land and that he is a land developer and is acquiring lands for the purpose of forming a layout but the second respondent-first defendant claims that the plaintiff is a total stranger, this reflects on the conduct of the parties. Moreover, the complaint in the form of an affidavit appears to be strange. Further the fate of the police complaint has also not been made known. It is also relevant to note that the said document would not have been of any assistance to any third party. Admittedly, it is an unregistered sale agreement and has some significance only in relation with the instant dispute and would not give any leverage or any advantage to any third party. But in the facts and circumstances of the case it assumes significance as it is the heart and soul of the defense set up by the petitioner and the second respondent. In that view also to assume that some third party has secreted away the document is quite unbelievable. The learned counsel for the petitioner has placed reliance on the ruling of the Hon'ble Apex Court rendered in the case of T. Mohan Vs. Kannammal and Anr., (2002) 10 SCC 82 . 14. In the said case the plaintiff produced a document which was signed by both the parties though not stamped and a finding was rendered that the original of the document was in the possession of the defendants and that the defendants deliberately omitted to produce it before the courts. In the instant case, no such case is made out and further more, the signature was also admitted by the son of the vendor. Hence, the said ruling is distinguishable and is inapplicable to the facts of the case. 15. In the instant case, no such case is made out and further more, the signature was also admitted by the son of the vendor. Hence, the said ruling is distinguishable and is inapplicable to the facts of the case. 15. Nextly the petitioner has placed reliance on the ruling rendered by the Hon'ble Apex Court in the case of Rakesh Mohindra Vs. Anita Bery and Others, (2016) 16 SCC 483, the Hon'ble Apex Court while considering the provisions of Section 65 (c) of the Indian Evidence Act has observed and held in paragraph No.15 and 20 as under:- "15. The preconditions for leading secondary evidence are that such original documents could not be produced by the party relying upon such documents in spite of best efforts, unable to produce the same which is beyond their control. The party sought to produce secondary evidence must establish for the non-production of primary evidence. Unless, it is established that the original document is lost or destroyed or is being deliberately withheld by the party in respect of that document sought to be used, secondary evidence in respect of that document cannot be accepted. 20. It is well settled that if a party wishes to lead secondary evidence, the court is obliged to examine the probative value of the document produced in the court or their contents and decide the question of admissibility of a document in secondary evidence. At the same time, the party has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. It is equally well settled that neither mere admission of a document in evidence amounts to its proof nor mere making of an exhibit of a document dispense with its proof, which is otherwise required to be done in accordance with law." 16. From the reading of the above, it is apparent that the onus was on the petitioner to lay a factual foundation and establish his right to give secondary evidence. As noted supra by this court, the loss of the document is on account of the negligence on the part of the petitioner only. Hence, the instant ruling also is of no avail to the petitioner. As noted supra by this court, the loss of the document is on account of the negligence on the part of the petitioner only. Hence, the instant ruling also is of no avail to the petitioner. Lastly the learned counsel for the petitioner would place reliance on the ruling of the coordinate Bench of this court, under the said ruling the court was reviewing a case, where the trial court had declined to mark several documents on which reliance was placed by the defendants on the ground that the said documents were irrelevant, relevancy or otherwise of the documents is not the case under consideration in the instant case. Hence, the ruling on distinguishable facts and is inapplicable to the instant case. 17. The Learned counsel for the first respondent has placed reliance on the ruling of the Hon'ble Apex Court rendered in the case of U. Sree Vs. U.Srinivas, (2013) 2 SCC 114 and would invite the attention of the court to paragraph No.15,16 and 17 which reads as under:- "15. In J.Yashoda v. K. Shobha Rani, after analysing the language employed in Sections 63 and 65(a), a two Judge Bench held as follows: "9. Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or the other of the cases provided for in the section." 16. In M. Chandra v. M. Thangamuthu, it has been held as follows: "47. It is true that a party who wishes to rely upon the contents of a document must adduce primary evidence of the contents, and only in the exceptional cases will secondary evidence be admissible. However, if secondary evidence is admissible, it may be adduced in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in another form. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It should be emphasised that the exceptions to the rule requiring primary evidence are designed to provide relief in a case where a party is genuinely unable to produce the original through no fault of that party." 17. Recently, in H.Siddiqui v. A. Ramalingam, while dealing with Section 65 of the Evidence Act, this Court opined that though the said provision permits the parties to adduce secondary evidence, yet such a course is subject to a large number of limitations." He would contend that as held by the Hon'ble Apex Court the petitioner has failed to lay any factual foundation before attempting to give secondary evidence. That apart the story by the petitioner about how the document went missing appears highly doubtful, it is his case that he went into the hotel, had breakfast and returned without documents and if that was so, definitely the cleaner employed by the hotel would have immediately cleaned the table as it was 8:00 A.M. in the morning and hardly much crowd can be expected in the hotel and if the cleaner had cleaned the table, he would have definitely noticed the documents that had been left behind. It is not the case of the petitioner that the police have enquired with the staff of the hotel. The alleged police complaint also does not inspire much confidence in this court. If indeed the petitioner had lost such a vital document, he would not have merely sat on his haunches and would have tried to activate his complaint. More so, keeping in view the relevance of the document to his defense, he would have made all efforts to have the case investigated by the police and he cannot merely take advantage of the in-action of the police. The petitioner could have definitely approached this court for an appropriate direction to the police to investigate the matter and interrogate the staff of the hotel if the incident had really occurred as narrated by him. Having failed to take any proactive steps to secure the document and even having failed to carry out the publication, the excuse or the reasons given by the petitioner does not inspire confidence in the court. Having failed to take any proactive steps to secure the document and even having failed to carry out the publication, the excuse or the reasons given by the petitioner does not inspire confidence in the court. The trial court has given cogent reasons while arriving at a decision to reject the application. It has rightly concluded that the document produced is not a duplicate of the original but is mere xerox copy and manipulation of the document is highly possible. In that view of the matter, the writ petition being devoid of merits requires to be dismissed and is accordingly dismissed.