Sri K.H. Krishna - Petitioner @HASH K.V. Dasaraju

P.S. Dinesh Kumar, J. - These petitions are directed against order dated 28-6-2016 rejecting I.A. Nos. 12 and 13 filed under Order 12, Rule 8 of Civil Procedure Code, 1908 by the Trial Court.

Heard Sri M.B. Naragund, learned Senior Counsel for the petitioner and Sri H.C. Shivaramu, learned Counsel for the Caveator-respondent.

Petitioner is plaintiff before the Trial Court. The suit is one for declaration and injunction in respect agricultural land bearing Survey No. 17/1 measuring 9 acres 5 guntas, situated at Kasaba Hobli, Kunigal Taluk. After trial, the suit was dismissed. Plaintiff preferred regular appeal before the lower Appellate Court. In the appeal, plaintiff filed the instant applications. The said applications have been rejected by the common impugned order by the lower Appellate Court.

Sri M.B. Naragund, learned Senior Counsel appearing for the petitioner submits that defendant in his examination has produced a certified copy of the sale deed marked as Ex. D. 9. The original of the said certificate was not produced before the Trial Court. In the evidence, the defendant has admitted that the original of Ex. D. 9 is in his possession. However, the same was not produced. Hence, the petitioner has filed the instant application seeking a direction to the respondents to produce the original sale deed. The Trial Court without properly appreciating the material on record has dismissed the said applications on the ground that though the defendant had admitted in the cross-examination that document-Ex. D. 9 was in his possession, the petitioner did not file any application before the Trial Court. Having waived an opportunity available before the Trial Court, he cannot be permitted to file the same before the lower Appellate Court. The lower Appellate Court has further held that if such a document is summoned, no opinion can be given with regard to the genuineness of the document, unless an opinion from the handwriting expert is obtained. It has also noted that this Court in W.P. Nos. 17484 and 17485 of 2015 vide order dated 25-4-2016 had directed disposal of the suit within six months. On these grounds, the applications were rejected.

Shri Naragund would point out that the requirement of law is to do complete justice and the appellant is seeking production of original of Ex. D. 9. He further submits that he would not insist on sending the said documents for any expert''s opinion and would be satisfied if the document is produced before the lower Appellate Court.

He further submits that in the event this Court does not accept his argument with regard to the production of document, then the Court below will have to draw an adverse inference under Section 114(g) of the Indian Evidence Act, 1872.

Per contra, Sri Shivaramu H.C, learned Counsel for the respondent-defendant submits that the application for production of document does not merit any consideration because the document sought is in respect of Survey No. 17/2, whereas the suit is for declaration and injunction in respect of Survey No. 17/1. Adverting to the affidavits filed in support of I.As. and the schedule mentioned in the plaint, he submits that a careful perusal of the affidavits as also the plaint would clearly show that the suit is in respect of Survey No. 17/1, whereas the document-Ex. D. 9 is in respect of Survey No. 17/2. He further submits that defendant''s bone of contention through out the litigation is that he is the owner of Survey No. 17/2 which is in no way connected with Survey No. 17/1. The applications before the lower Appellate Court are filed only to protract the proceedings at the appellate stage. Accordingly, he prays for dismissal of these writ petitions.

I have carefully considered the submissions of the learned Senior Counsel for the petitioner and learned Counsel for the respondent and perused the material papers.

The schedule contained in the plaint reads as follows:

"The land bearing S. No. 17/1 measuring 9-05 acres situate at Kunigal, Kasaba Hobli, assessed at Rs. 14-56 bounded on East:Inam land of Hurithirumaladevaru, of Honnaiah, South: Bangalore-Mangalore Road."

The prayer in the application reads as follows:

"That for the reason stated in tire accompanying affidavit the appellant prays that this Hon''ble Court may be pleased to direct the respondents to produce the original sale deed, dated 10-2-1936, executed by Smt. Hucchomma in favour of Sri Venkataraju, in the interest of justice and equity."

In para 2 of the affidavit filed in support of the applications, the petitioner has submitted that the suit in O.S. No. 651 of 1993 is filed in respect of Survey No. 17/2. The said application is contested by the respondent denying that the suit is in respect of Survey No. 17/2.

A perusal of the evidence shows that in the cross-examination recorded on 24-9-2007, defendant has produced Ex D. 9 and admitted that the original of the said document is in his possession. The suit has been decreed on 6-2-2009. The instant applications are filed on 18-6-2036 before the lower Appellate Court, At any rah the applications are in respect of property bearing Survey No. 17/2, whereas the relief sought in the plaint is in respect of Survey No. 17/1. In that view of the matter the reasoning of the lower Appellate Court that having waived an opportunity before ''he Trial Court, plaintiff-appellant cannot be permitted to seek direction to produce the original of Ex. D. 9 at this stage before the lower Appellate Court does not call for interference.

Hence, this writ petition fails on two counts. Firstly, that the petitioner has sought for a direction to produce original of the sale deed in respect of Survey No. 17/2 whereas the declaration sought is in respect of Survey No. 17/1 and secondly that having failed to seek production of documents before the Trial Court, the application is filed nearly after a lapse of 7 years before the lower Appellate Court. Needless to mention that in the facts and circumstances of the case, if the petitioner is entitled to urge the ground with regard to Section 114 of the Evidence Act, he is at liberty to do so before the lower Appellate Court.

In view of above discussion, these writ petitions fail and are accordingly dismissed. No costs.