Hormusji Cowasjee Dinshaw Trust v. Abdul Hameed Khan
2019-03-07
B.VEERAPPA
body2019
DigiLaw.ai
ORDER : B. Veerappa, J. 1. The present writ petition is filed by the plaintiffs against the Order dated 14-11-2018 made in O.S. No. 7941/2008 rejecting I.A. No. 18 filed by the plaintiffs under Sections 63(2) and 65(c) of the Indian Evidence Act, 1872 read with Section 151 of Code of Civil Procedure, 1908 on the file of the XIV Addl. City Civil Judge, Bengaluru (CCH-28). 2. The plaintiffs/present petitioners filed suit for declaration that the plaintiffs are the absolute owners of the Schedule 'C' property and for recovery of possession of 'C' schedule property from the defendants and for enquiry into future mesne profits contending that the plaintiffs are the owners in possession of the suit schedule property. It is contended that the defendants have no manner of right, title and interest. The defendants filed written statement, denied the averments made in the plaint and contended that the defendants are in possession and enjoyment of the suit schedule property for more than the statutory period of 12 years, adverse to the interest of plaintiffs and sought for dismissal of the suit. 3. When the matter was posted for cross-examination of P.W. 1, at that stage, plaintiffs filed I.A. No. 18 under Sections 63(2) and 65(c) of the Indian Evidence Act, 1872, read with Section 151 of Code of Civil Procedure seeking permission to mark the certified copy of the documents already produced and mentioned in the application as secondary evidence in support of their case, stating that the original documents mentioned in the application were misplaced and were unable to trace. Since the documents are duly registered, the certified copies are produced and the same may be taken as secondary evidence. The said application was opposed by the seventh defendant by filing objections. 4. The Trial Court, considering the application and objections, by the impugned Order, rejected the application. Hence the present writ petition is filed for the relief sought for. 5. I have heard the learned Counsel for the parties to the lis. 6. Sri H.R. Anantha Krishna Murthy, learned Counsel for the petitioners contended that the Trial Court rejected the application ignoring the provisions of Sections 63 and 65 of the Indian Evidence Act, 1872.
Hence the present writ petition is filed for the relief sought for. 5. I have heard the learned Counsel for the parties to the lis. 6. Sri H.R. Anantha Krishna Murthy, learned Counsel for the petitioners contended that the Trial Court rejected the application ignoring the provisions of Sections 63 and 65 of the Indian Evidence Act, 1872. The impugned order rejecting the application is passed mainly on the ground that I.A. No. 17 filed by the plaintiff under Order VII, Rule 14(3) read with Section 151 of Code of Civil Procedure to condone the delay in production of documents is rejected. Therefore the impugned order is erroneous and contrary to the material on record. Therefore, he sought to allow writ petition. 7. Sri S.V. Bhat, learned Counsel for the respondents 3(a) to 3(g), 4 and 5, sought to justify the impugned order and submits that in the absence of any material regarding production of primary evidence as contemplated under Section 62 of the Indian Evidence Act, the Trial Court is justified in rejecting the application. Therefore, sought to dismiss the writ petition. 8. Having heard the learned Counsel for the parties, in the absence of any material for production of primary evidence as contemplated under Section 62 of the Indian Evidence Act, 1872, the Court cannot allow the parties to produce secondary evidence. The Trial Court, considering the entire material on record, recorded a finding that since the plaintiffs have not produced any material documents to prove the absence of primary evidence, the application filed by the plaintiffs under Sections 63(2) and 65(c) of the Indian Evidence Act, 1872 cannot be considered. Accordingly, rejected the application. 9. In view of the above, the impugned order is just and proper. The petitioners have not made out any ground to interfere with the impugned order in exercise of powers under Article 227 of the Constitution of India. Accordingly, writ petition is dismissed. However, it is needless to observe that it is open for the plaintiffs to produce primary evidence/original sale deeds, in accordance with law.