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2021 DIGILAW 445 (KAR)

Shivanand v. Corporation Bank

2021-03-18

SACHIN SHANKAR MAGADUM

body2021
ORDER : SACHIN SHANKAR MAGADUM, J. 1. The captioned writ petition is filed by the plaintiff challenging the order passed by the court below on I.A. No. 5 filed under Section 65 of the Indian Evidence Act r/w Section 151 of CPC. 2. Petitioner is the owner of the suit property. The present suit is filed against respondents/defendants to handover the vacant possession. The petitioner has filed the present suit by specifically contending that he has let out the suit property to the respondents/bank and there is a clause to seek enhancement of rent at the rate of 25% after every five years. The suit is filed contending that there is default in payment of rent by respondents/bank. 3. During the pendency of the suit, petitioner filed an application under Order 16 Rule 6 of CPC calling upon defendants/bank to produce the original lease agreement dated 09.10.2003. The said application was objected by defendants/bank by contending that such an application is not maintainable. It was also specifically denied that original unregistered lease agreement dated 09.10.2003 is not in the custody of the bank. The learned Judge rejected the said application on the ground that since respondents/bank has taken a specific contention that original rent agreement is not in the custody of defendants/bank, question of issuing direction would not arise. In this background, it appears the present petitioner filed an application in I.A. No. 5 under Section 65 of the Evidence Act r/w Section 151 of CPC. The present petitioner sought permission to produce the photocopy of the lease agreement to corroborate and substantiate his case. The said application was strongly resisted by the respondents/bank. The learned Judge has proceeded to reject the application by holding that no grounds are made out to production of photocopy of the lease agreement dated 09.10.2003 as a secondary evidence. The learned Judge was of the view that Xerox document cannot be permitted to be marked, when there are no material regarding existence of original document. In that view of the matter, the learned Judge was of the view that petitioner cannot be permitted to rely the photocopy of lease agreement by way of secondary evidence. 4. Learned counsel for the petitioner would vehemently argue and contend before this court that respondents/bank is in custody of original lease agreement. In that view of the matter, the learned Judge was of the view that petitioner cannot be permitted to rely the photocopy of lease agreement by way of secondary evidence. 4. Learned counsel for the petitioner would vehemently argue and contend before this court that respondents/bank is in custody of original lease agreement. He would further take this court to para 13 of the written statement and contend that there is no dispute that respondents/bank was inducted by the petitioner. He would rely on para 13 of the written statement and contend that respondents/bank has not at all disputed the terms and conditions of the lease agreement. To buttress his arguments, he would place on reliance on the judgment rendered by coordinate bench of this court in Shivalingamma and Others Vs Revansiddappa since deceased by LRs and Others 2020 (1) KCCR 854 . Placing reliance on this judgment, he would submit to this court that, in the said case also the plaintiff has taken a specific contention that original unregistered partition deed is in the custody of the defendants. The said contention was denied by defendant No. 1. This court however reversed the order of the trial court and permitted the plaintiff to rely the photocopy and produce it as secondary evidence. This court was of the view that even in the absence of an application, there is no bar for the court to consider the said application on the basis of material on record. On these set of grounds, he would submit that the order under challenge needs to be set aside. 5. Per contra, learned counsel for the respondents/bank would vehemently argue and contend before this court that, the present petitioner has not produced any prima facie material to demonstrate that original lease agreement is in the custody of the bank. When such an assertion made by the petitioner is stoutly denied by the bank, question of permitting the petitioner to rely on the photocopy as secondary evidence cannot be entertained at this stage and the same is impermissible under law. On these set of defences, he would submit to this court that the order under challenge is in accordance with law and would not warrant interference by this court. 6. Heard the learned counsel for the petitioner and learned counsel for the respondents. 7. On these set of defences, he would submit to this court that the order under challenge is in accordance with law and would not warrant interference by this court. 6. Heard the learned counsel for the petitioner and learned counsel for the respondents. 7. Para 13 of the written statement would clinch the issue and it would be useful for this court to refer to the said para 13, which reads as under: "13. It is further submitted that this defendants is a Banking institution, it involves public money. That the plaintiff is leased out an area totally measuring 1,225 Sq. Ft. on the Basement floor and 2,750 Sq. Ft. on the Ground floor in Sujata Complex P.B. Road, Dharwad to the defendant No. 1. As per lease agreement the defendant is paying rent for Basement Rs. 7.50 per Sq. Ft. and for Ground Floor, Rs. 9.00 per Sq. Ft. up to initial five years and 25% increase for next period regularly without making any delay to the plaintiff and same is well within the knowledge of the plaintiff and defendant is paid entire rent as per lease agreement to the plaintiff and after expire of the lease period defendant is paying rent to the defendant as agreed by the plaintiff by way of NEFT/RTGS to plaintiff account till today and the defendant is not defaulter in paying the rent, the said facts is suppressed by the plaintiff while filing this suit. Hence the suit of the plaintiff is liable to be rejected." 8. If the averments at para 13 are looked into, I would find that there is absolutely no dispute in regard to terms and conditions of the agreement as claimed by the present petitioner/plaintiff. The present petitioner has made an attempt by filing an application in I.A. No. 4 calling upon respondents/bank to produce the original lease agreement. The said application was strongly resisted. The learned Judge has rejected the application. In this background, it appears the petitioner has filed the present application in I.A. No. 5 requesting the court to permit the petitioner to rely on the photocopy of the lease agreement by way of secondary evidence. In the present factual matrix, on perusal of the averments made at para 13 of the written statement, the terms and conditions of agreement are admitted. In the present factual matrix, on perusal of the averments made at para 13 of the written statement, the terms and conditions of agreement are admitted. However, it appears that petitioner still wants to place reliance on photocopy of the lease agreement by way of secondary evidence. The ratio relied on by the learned counsel for the petitioner is squarely applicable to the present case on hand. If the petitioner is permitted to lead evidence by relying upon the photocopy of the lease agreement, no prejudice would be caused to respondents/bank since the entire terms and conditions in the lease agreement are admitted. The main grievance of the petitioner is that, he is entitled for 25% enhancement of rent every five years. The said factual aspect is admitted by the respondents/bank at para 13. This factual aspect is also not disputed by the learned counsel for respondents/bank. 9. In view discussion made supra, I am of the view that the order passed by the learned Judge in rejecting the application I.A. No. 5, in my opinion suffers from serious material irregularity. Hence, in my opinion, the order under challenge needs to set aside. 10. For the reasons stated supra, I proceed to pass the following: ORDER The writ petition is allowed. The order passed by the learned Judge on I.A. No. 5 is set aside. The prayer made in the application in I.A. No. 5 stands allowed.