Bheemacharya Balacharya Varakhedakar vs Anil Potdar and Others

R.S. Chauhan, J.—The petitioner-in-person, Bheemacharya Balacharya Varkhedakar, has filed the present writ petition for seeking the following reliefs from this Court:

i) Issue writ of certiorari and/or other writ quashing the 1st impugned order dated 10/4/2015, i.e. Annexure-O passed under the petitioner''s copy application dated 13/3/2015 i.e. C.R. No. 1547/2015 Annexure-N and 2nd impugned order dated 17/10/2015 i.e. Annexure-S passed under I.A. No. 27 i.e. Annexure-P in the O.S. No. 49/2002 on the file of the Court of the learned Principal Civil Judge Junior Division, Belgavi, and further to allow said copy application C.R. No. 1547/2015 i.e. Annexure-N and I.A. No. 27 i.e. Annexure-P with costs all over.

ii) Issue direction to the trial Court i.e. learned Principal Civil Judge, Junior Division, Belgavi to mark Exhibit Number on the certified copy of the document named Uttaradi Matha Sampraday Paddhati presented with list dated 24/6/2010 and filed as per the order dated 14/7/2010 passed under I.A. No. 10 and issue certified copies of the documents as prayed for in the Application dated 13/3/2015 i.e. C.R. No. 1547/2015 i.e. Annexure-N/or to, return the same to the plaintiff No. 2 in person, before further hearing of I.A. No. 14 in O.S. No. 49/2002.

iii) Issue direction to the learned District Judge, Mysore to preserve in good condition by laminating, etc. as possible, the record and proceedings of the O.S. No. 83/1891 along with the connected cases decided by the common Judgment dated 9/7/1894 i.e. O.S. No. 84, 85, 86, 87, 88, 89, 900, 91 of 1891 and O.S. No. 48, 50, 54 decided by common judgment dated 9/7/1894 and O.S. No. 760/1888 decided by the judgment dated 11/7/1890; which were based on the same main document named (Oottaradi Muth) Uttaradi Matha Sampraday Padhati.

iv) Issue direction to the learned Principal Civil Judge, Junior Division, Belgavi, to preserve in good condition by laminating etc. as possible, the Certified Copies of the Documents of Judgment dated 11/7/1890 in O.S. No. 760/1888, and dated 9/7/1894 in O.S. No. 83/1891 etc. both passed by the subordinate Judge, Mysore and Uttaradi Matha Sampraday Paddhati produced by the Petitioner in the proceedings of the O.S. No. 49/2002.

v) Grant such other reliefs also as are deemed fit and necessary under the circumstances of the case including the costs of this writ petition.

Despite the numerous prayers made before this Court, during the course of the arguments, the petitioner-in-person has confined his argument to the legality of the order dated 10/4/2015 passed by the Principal Civil Judge and JMFC, Belgavi, whereby the learned Judge has rejected the petitioner''s application for seeking certified copy of Ex. 103, which was submitted in OS No. 83/1891 before the Court of subordinate Judge, Mysore. The said document is in Devanagari titled as "Uttaradimath Sampraday Paddhati" which was filed by the petitioner before the learned Court. The petitioner has further raised arguments about the impugned order dated 17/10/2015, whereby the petitioner''s interim application No. 27 for marking the said document, mentioned above, as an Exhibit to be admitted during the course of the trial, and for returning the document to the petitioner, has also been rejected.

The brief facts of the case are that on 11/1/2002 the petitioner had filed a civil suit against the respondents for permanent injunction for restraining the respondents from conducting any function involving Satyatmateertha Swameejee, respondent No. 2, as the Peethadhipati of Uttaradi Matha and for restraining his agents for committing any illegal acts, or physical harassment, or any criminal act personally against the petitioner. The case has been pending ever since 2002.

The petitioner''s evidence as PW-1 was recorded on 4/1/2010. The case has a rather checkered history, thereafter. But the relevant facts are that on 4/2/2001, the respondent No. 2 had filed an application, namely IA No. 14 under Order 7 Rule 11 CPC, wherein the continuation of the civil suit was called in question. Thereafter, the petitioner had filed IA No. 20 under Order 19, Rule 2 of CPC for directing the respondent No. 2 to keep Mr. Aravind Narayan Gothe, the deponent of the affidavit filed in support of IA No. 14 present before this Court. The said IA was filed on 17/2/2012. Therefore, ever since 17/12/2012, both the IAs namely, IA No. 14 and IA No. 20 were pending decision before the learned trial Court.

Meanwhile, the petitioner filed an application for seeking a certified copy of Ex. P. 1 of document Exhibit 103. However, by order dated 10/4/2015, the said application was dismissed. Moreover, the petitioner also filed an application namely, IA No. 27, for marking the Exhibit 103 as a document and for returning the same to the petitioner. However, by order dated 17/10/2015, the said interim application has been dismissed. Hence, this petition before this Court.

The petitioner-in-person has vehemently contended that in the writ petition filed by respondent No. 2 before this Court, namely WP Nos. 65823-24/2010 by order dated 19/1/2011, this Court had observed that the petitioner would be entitled to get the document marked, subject to objection if any raised by defendant No. 2. If any such objections were raised by the defendant No. 2, the same shall be adjudicated by the learned trial Court at the time of considering the suit on merit.

Thus, according to the petitioner-in-person, due to the said observation made by this Court, he is entitled to get the document in question marked as an Exhibit. Therefore, the learned Judge is unjustified in rejecting his I.A. No. 27 and declining to mark the said documents as Exhibit. Secondly, that the pendency of IA No. 14 filed by the respondent, does not act as stay of the proceedings. In fact, by order dated 4/2/2011, the learned trial Court has clearly kept the further recording of the petitioner''s evidence pending. Therefore, the learned trial Court is duty bound to mark the document in question as an exhibit.

As far as the order dated 10/4/2015 is concerned, the petitioner-in-person has pleaded that the order is clearly untenable as the learned judge has declined to give the certified copy of the document requested by the petitioner. Therefore, according to the petitioner-in-person, both the impugned orders deserves to be set aside by this Court.

Heard the petitioner-in-person and perused the impugned order.

Admittedly, the document entitled as "Uttaradimath Sampraday Paddhati" is a document which was submitted by the petitioner. However, only a certified copy of the said document has been submitted. According to the petitioner himself, the original copy of the said document is with the District Court at Mysore; the said original copy is marked as Ex. No. 103 and OS No. 83/1891. Moreover, according to the petitioner, although he had sought the certified copy of the Ex. Marked as 103, in the Mysore District Court, his application was declined inter alia on the ground that the Exhibit is so fragile as the document relates to 1891. Thus, a certified copy of the said document cannot be given to the petitioner. The said order passed by the Mysore District Court has been never been challenged by the petitioner. Therefore, it has reached finality.

In the present suit, the petitioner has merely submitted a xerox copy of the document marked at Ex. 103 in the Mysore District Court. Therefore, the learned trial Court was certainly justified in passing the order dated 10/4/2015, whereby it clearly held that it is not in a position to issue a certified copy of a certified copy. The document is certified only after it has been compared with the original. Since the original is not available with the learned trial Court, obviously it could not give a certified copy of the xerox copy. This is more so, since even Xerox copy is yet to be proved and yet to be admitted as a second piece of evidence. Therefore, this Court does not find any illegality or perversity in the order dated 10/4/2015.

As far as the order dated 17/10/2015 is concerned, a bare perusal of the order clearly reveals that the learned Judge has observed the fact that the petitioner is cleverly trying to skip certain steps in the course of the trial. For once an application had been filed under Order 7 Rule 11 of CPC, in the form of IA No. 14, filed by the respondent, the very continuation of the civil suit has come into question. Hence, the learned trial Court was duty bound to first consider the said application. Thus, no fruitful purpose would be served by recording the evidence of the petitioner, and only later to conclude that the civil suit need not even be continued. By demanding that the document be marked, obviously the petitioner is interested that his evidence should be recorded. After all a document cannot be marked unless further evidence of the petitioner is recorded. But, in the light of the existence of IA No. 14 filed under Order 7 Rule 11 of CPC, the to insist that the evidence should be recorded, is to insist that the cart be placed before the horse. Interestingly, the petitioner and the respondents are both avoiding their arguments on IA No. 14, ever since 2011 till present. Therefore, the learned Judge is justified in concluding that both the parties are required to submit their arguments on IA No. 14 before the petitioner insists that the document be marked and returned to him.

Although the petitioner may technically be right that mere submission on IA No. 14 does not act as a stay to further proceedings, but nonetheless once the very continuation of the proceedings is being questioned by the respondents, the said IA has to be decided at the very outset before the proceedings is continued for any other purpose. Therefore, the contentions raised by the petitioner-in-person is certainly unacceptable.

Considering the fact that IA 14 has been pending since 2011, considering the fact that the petitioner has been avoiding arguing the said IA, and has been submitting one interim application after the other, the learned Judge was certainly justified in concluding that the filing of subsequent interim application are merely a clever ploy for prolonging the trial. Hence, the learned judge is unjustified in imposing the cost of Rs. 500/- upon the petitioner.

For reasons stated above, this Court does not find any illegality or perversity in the impugned order dated 17/10/2015.

For the reasons stated above, this court does not find any merit in the present petitions. It is, hereby, dismissed.