K.C. Chandrashekar Raju vs D. Venkatesh and Others

V.G. Sabhahit, J.—This writ petition is filed being aggrieved by the order passed by XI Addl. City Civil Judge, Bangalore City dated 29.9.2005 in O.S. No. 4858/2003 wherein application I.A. XXII filed by the plaintiff-writ petitioner herein under Order 18 Rule 4(1) r/w. Section 151 CPC, and Sections 63(2) and 65(c) of the Evidence Act is rejected.

I have heard the Learned Counsel appearing for the writ petitioner and the learned Counsel appearing for the respondent.

The writ petitioner who is the plaintiff in O.S. No. 4858/2003 filed application I.A.22 to mark the xerox copy of the agreement of sale dated 5.5.94 on the ground that the original of the said document had been deposited with the Banker for raising loan and the Banker has lost said original agreement and wherefore, plaintiff may be permitted to produce xerox copy of the original agreement u/s 65(c) of the Evidence Act. The Banker was examined as PW8 and since objection was raised for production of the xerox copy of the agreement of sale on the basis of which suit for specific performance of the said agreement was filed. The Trial Court by order dated 29.9.2005 held that similar application had been filed by the plaintiff seeking for permission to mark the xerox copy of the agreement dated 5.5.94 u/s 63(2) and 65(c) of the Evidence Act in I.A. 15 and the said application was rejected by order dated 28.3.2005. Being aggrieved by the same, the plaintiff preferred CRP. No. 330/2005 and the same was disposed of on 8.9.2005 with liberty to file a writ petition and W.P. No. 22043/2005 was filed by the plaintiff and in the said writ petition, the order passed by the Court rejecting I.A. 15 seeking for permission to produce xerox copy of the agreement of sale dated 5.5.94 was rejected has been confirmed with liberty to the plaintiff to raise the ground in appeal if the suit against him by order dated 11.11.2005 and wherefore the present application for the same relief as sought for in I.A. 15 is not maintainable. The learned Senior counsel appearing for the writ petitioner submitted that since there is change of circumstance, the finding given on I.A. 15 would not operate as resjudicata and the applicant has also made out a ground u/s 65(b) of the Evidence Act as the existence of the agreement dated 5.5.94 has been admitted by the defendant in the document which is now marked as Ex.P55 and also in the cross examination of defendant who is examined as DW. 1 and wherefore, the plaintiff has made out a ground for producing the xerox copy of the original agreement dated 5.5.94.

The Learned Counsel appearing for the respondent submitted that there is no change of circumstance after I.A. 15 was rejected and any order passed even at the stage of interlocutory order will also operate as resjudicata and no change of circumstance is proved and proof of existence of admission of the original agreement would not by itself enable the writ petitioner to produce xerox copy and it would only enable the plaintiff to mark the document wherein there is written admission of the agreement.

I have considered the contention of the Learned Counsel appearing for the parties.

It is clear from the perusal of the material on record and it cannot be disputed that I.A. 15 had been filed under Order 18 Rule 4(1) r/w. Section 151 CPC, and Sections 61(2) and 65(c) of the Evidence Act and to mark the photo copy of the agreement of sale dated 5.5.94. The said application was rejected by order dated 28.3.2005. Being aggrieved by the same, CRP. No. 330/2005 was filed which was disposed of on 8.9.2005 with liberty to file writ petition and thereafter W.P. No. 22043/2005 was filed (GM, CPC) wherein order was passed confirming the rejection of I.A. 15 under Order 18 Rule 4(1) r/w. Section 151 CPC, and Sections 63(2) and 65(c) of the Evidence Act reserving liberty to the plaintiff to raise the ground appeal if the suit goes against him. I.A. 22 is filed under the same provision under Order 8 Rule 4(1) r/w. Section 151 CPC, and Section 63(2) and 62(c) of the Evidence Act as application I.A. 15. There is no merit in the contention of the learned Senior counsel as there is change of circumstance and therefore the order dated 28.3.2005 rejecting I.A. 15 which has been confirmed in W.P. No. 22043/2005 will not operate as resjudicata in view of the decision of this Court in Neelkantappa v. Laxman 1983(1) KLJ 36 W.A. No. 1998/81 dated 16.2.1982. It is clear from the perusal of the principle laid down in the said case that even in respect of the interlocutory order when the order has been affirmed by the appellate Bench, if there is any new circumstance or change of circumstances, the order of the appellate Bench would not come in the way of the single Judge varying the interim order. In the present case, it is not disputed that I. As. 15 and 22 are filed seeking the same prayer and there is no ground made out about the change of circumstance and wherefore the trial court has rightly held that in view of the rejection of I.A. 15 seeking for the same relief as sought for in I.A. 22 and also having regard to the evidence of PW. 8 the trial court has rightly rejected I.A.22.

Section 65(b) of the Evidence Act reads as follows:

When the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest.

Further, on reading of Section 65 it is clear that in case of Clauses (a), (c) and (d) in secondary evidence, contents of the documents are admissible and in case of Clause (b) when the existence, condition or contents of the original is proved to be admitted in writing by the person against whom it is proved or by his representative in interest the written admission is available and therefore, reading of Section 65(b) with the explanation that in case of Clause (b) written admission is admissible, it is clear that whether the existence of original has been admitted u/s 65(b) what is admissible is the written admission admitting the original agreement and the said clause would not enable the plaintiff to produce the xerox copy of the original as it is clear that only in Clauses (a), (c) and (d) secondary evidence of the contents of the document is admissible and wherefore, Section 65(b) would also be not helpful to the plaintiff in the present case to seek for production of xerox copy of the original agreement of sale dated 5.5.94 and the said clause would only enables the plaintiff to contend about the existence of the agreement on the basis of the document that is already marked as Ex.P55.

The learned Senior counsel further submitted that in view of the decision of the Hon''ble Supreme Court in Bipin Shantilal Panchal v. State of Gujarat and Anr. AIR 2001 SC 1158 the Trial Court ought not to have given any finding about the right of the plaintiff to lead secondary evidence at this stage and the same could have been reserved and document could be marked subject to proof. It is clear from the perusal of the principles laid down in Bipin Shantilal Panchal''s case that the said principle is not helpful to the plaintiff in the present case as it is clear from the perusal of the material on record that the evidence of the parties is already over and the application has been filed by the writ petitioner-the plaintiff and sought for an order from the Trial Court by arguing the said application and after arguing the application without submitting to the court that the finding can be reserved and considered at the time of final hearing and on taking an order after arguing the application I.A. 22, it is not open to the plaintiff to contend that the trial court ought not to have passed an order on I.A. 22 as it is the petitioner-plaintiff who made the application and insisted the trial court to pass an order on I.A. 22 and wherefore, the said decision of the Hon''ble Supreme Court is also not helpful to the plaintiff-writ petitioner in the present case.

However, it is open to the writ petitioner-plaintiff to contend regarding the finding given by the trial court about the right of the plaintiff to lead secondary evidence in appeal in case the suit is decided against him.

Accordingly, the writ petition is disposed of with above said observations.