Karnataka High Court
Sri K C Chandrashekar Raju vs Sri D Venkatesh on 22 September, 2025
Author: S.G.Pandit
Bench: S.G.Pandit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22nd DAY OF SEPTEMBER 2025
PRESENT
THE HON'BLE MR. JUSTICE S. G. PANDIT
AND
THE HON'BLE MR. JUSTICE T.M.NADAF
REGULAR FIRST APPEAL NO.1210 OF 2009 (SP)
BETWEEN:
SRI K C CHANDRASHEKAR RAJU
AGED ABOUT 55 YEARS
S/O SRI K CHENGAMARAJU
R/AT NO.44/4, DISTRICT FUND ROAD
9TH BLOCK, JAYANAGAR
BANGALORE - 560 069.
...APPELLANT
(BY SRI ASHOK HARANAHALLI, SR. COUNSEL FOR
SRI NEERAJ RAJIV SHIVARAM, ADVOCATE)
AND:
D VENKATESH
SINCE DEAD BY LRS
1. SRI HUNASEMARA VENKATESH GOUTHAM
S/O DEVAPPA VENKATESH
AGED ABOUT 36 YEARS
R/AT NO.667, NAL ROAD,
WIND TUNNAL, MURUGESH PALYA
BANGALORE - 560 017.
2. SMT. PRABHA
MAJOR IN AGE W/O D VENKATESH
2
3. MASTER KISAN
S/O D VENKATESH
SINCE MINOR REPRESENTED
BY MOTHER AND GUARDIAN
AD-LITEM SMT. PRABHA
R/AT NO.667, NAL ROAD,
MURUGESH PALYA
BANGALORE - 560 017.
4. SRI NIRAJA GELLI
MAJOR IN AGE
NO.802-268/2/B-3,
ROAD NO.2, BANJARA HILLS
HYDERABAD-34.
5. SRI VIVEK MISHRA
MAJOR IN AGE
NO.C-1, ALSA MANOR,
HANNINGTON ROAD
CHIET PET, CHENNAI- 64.
6. SRI MANDEEP SINGH
MAJOR IN AGE
M/S KESAR MOTORS
J C ROAD, BANGALORE-01.
7. SRI LOKESH REDDY
MAJOR IN AGE
NO.202, HAUDEN HOUSE,
HAUDEN ROAD, ULSOOR,
BANGALORE - 42.
8. SRI SUMANT HARISCHANDRA WANDREKAR
MAJOR IN AGE
NO.17, SILVER SANDS, JUHU,
TARA ROAD, JUHU, MUMBAI - 400 049.
9. SRI JASJEEV SINGH KHANDARI
MAJOR IN AGE
3
FLAT NO.10, BEAUFORT HOUSE
25, QUEENS BOROUGH TERRACE
LONDON W 23SS U. K.
10. SRI HARJEEV SINGH KHANDARI
MAJOR IN AGE
FLAT NO.10, BEAUFORT HOUSE
25, QUEENS BOROUGH TERRACE
LONDON W 23SS U. K.
11. SRI T S VENKATACHELAM
MAJOR IN AGE
304, MAYFAIR 2,
COOKSON ROAD,
RICHARDS TOWN,
BANGALORE- 84.
12. SRI MAHESH MAIN
MAJOR IN AGE
NO.1162, MOUNT BLANC,
DADESTH HILL, AUGUST KRANTI MARG,
MUMBAI - 400 036.
13. SRI SHANTANU MITRA
MAJOR IN AGE
NO.237, ARCADIA GARDENS
BLOCK - B UNIT- 403-07
ARCADIA ROAD,
SINGAPORE - 1128.
14. SRI SWAMINATHAN
MAJOR IN AGE
C/O MILIND NULKAR
CENTER FOR DESIGN
EXCELLENCE PVT. LTD.,
NO.313/1, 1ST FLOOR, 7TH CROSS,
PATEL RAMA REDDY ROAD,
DOMLUR LAYOUT, BANGALORE - 560 071.
15. SRI SURESH VASU
MAJOR IN AGE
4
C/O MILIND NULKAR
CENTER FOR DESIGN
EXCELLENCE PVT. LTD.,
NO.313/1, 1ST FLOOR, 7TH CROSS,
PATEL RAMA REDDY ROAD,
DOMLUR LAYOUT, BANGALORE - 560 071.
16. M/S. GOLFINKS SOFTWARE PARK PVT. LTD.,
INCORPORATED UNDER THE COMPANIES
ACT 1956, HAVING THEIR REGISTERED
OFFICE AT NO.16, ST. MARKS ROAD
BANGALORE - 560 075
REPRESENTED BY DIRECTORS
MR. K J KUPUVILLA AND
MR. JITENDRA VIRWANI.
17. M/S. MAC CHARLES INDIA PVT. LTD.,
INCORPORATED UNDER THE COMPANIES
ACT 1956, HAVING THEIR REGISTERED
OFFICE NO.28, P B NO.17
SNAKE ROAD, BANGALORE - 52
REPTD. BY COMPANY SECRETARY
AND FINANCIAL CONTROLLER
MR. M S REDDY.
18. M/S. UMBEL PROPERTIES PVT. LTD.,
INCORPORATED UNDER THE COMPANIES
ACT 1956, HAVING THEIR REGISTERED
OFFICE AT 1ST FLOOR, EMBASSY POINT,
NO.150, INFANTRY ROAD,
BANGALORE - 560 001
REPRESENTED BY ITS DIRECTOR
MR. NARPAT SINGH CHOLARIA.
...RESPONDENTS
(BY SRI. H R ANANTHAKRISHNA MURTHY, ADVOCATE FOR
R1 AND R2;
SRI R.V.S. NAIK, SENIOR COUNSEL FOR
SRI VINAY GIRI, ADVOCATE FOR C/R16 TO R18;
R3 IS MINOR REP. BY R2;
5
VIDE ORDER DATED 30.07.2013, APPEAL AGAINST
R5, R9, R10, R12 AND R13 ARE DISMISSED;
R4, R6, R7, R8, R11, R15 ARE SERVED
VIDE ORDER DATED 04.12.2012 SERVICE OF NOTICE
TO R14 IS HELD SUFFICIENT)
THIS RFA IS FILED UNDER SECTION 96 OF CPC,
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
DATED 31.10.2009 PASSED IN O.S.NO.4858/2003 ON THE
FILE OF THE XI ADDL. CITY CIVIL JUDGE, (CCH NO.8)
BANGALORE CITY AND FURTHER BE PLEASED TO GRANT A
DECREE FOR SPECIFIC PERFORMANCE OF THE CONTRACT
OF SALE DATED 05.05.1994 AND THE INJUNCTORY
RELIEF'S AS PRAYED FOR BY THE APPELLANT IN THE
PLAINT IN RESPECT OF THE SUIT SCHEDULE PROPERTY,
IN THE ENDS OF JUSTICE.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
ON 24.06.2025 COMING ON FOR PRONOUNCEMENT THIS
DAY, T.M.NADAF J., DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE S.G.PANDIT
and
HON'BLE MR JUSTICE T.M.NADAF
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE T.M.NADAF) This Regular First Appeal is filed by the unsuccessful plaintiff, calling in question the judgment and decree dated 31.10.2009 passed by the XI Additional City Civil Judge (C.C.C.H.No.8), Bangalore City in O.S.No.4858/2003, whereby the Trial Court 6 had dismissed the suit with costs filed for the relief of specific performance.
2. Shorn of details, brief outlines of facts leading to filing of the present appeal are as under:
3. The parties are referred as per their rankings before the Trial Court.
4. Plaintiff filed a suit for specific performance claiming the following reliefs:-
"WHEREFORE, the plaintiff respectfully prays for a judgment and decree against the Defendants 1 to 3 granting:
1) Specific Performance of the agreement of sale dated 5.5.94 vide Document No.1, directing the Defendant No.1 along with Defendants No.2 and 3 for executing the necessary sale deeds in favour of the Plaintiff/his nominee Defendants No.4 to 15 in respect of the suit schedule property/sites.
2) Permanent Injunction against the Defendant No.1 or anybody claiming rights through the 7 Defendant No.1 from interferring with the rights of possession and enjoyment of the suit schedule property, by the Plaintiff/Nominee Defendants No.4 to 15.
3) To pass suitable orders necessary for execution of the sale deed/sale deeds in favour of the Plaintiff/Nominee Defendants No.4 to 15 as the case may be by Defendant No.1 or through the process of the Court as the case may be and costs of the suit together with such other reliefs deemed fit to grant under the circumstances, in the interest of justice."
5. The case of the plaintiff as per plaint before the Trial Court is that, he is a real-estate dealer and has developed several properties in Bangalore. In his normal business course, the first defendant came into contact with him in the end of the year 1993 and has offered the vacant-suit schedule land measuring about 1,00,000 sq.ft. of survey No.5/1, situated at Challaghatta Village, Varthur Hobli, Bangalore South Taluk and now CMC Mahadevpura (out of 1,00,000 8 Sq.ft. of land site bearing No.5 measuring 6,000 Sq.ft. is not included in the suit schedule property, since it was sold to one Sri Sreenivasa Rao Bheemarao Deshpande and Ameya Sumanth Wandrekar - by registered sale deed dated 16.11.1995).
6. In furtherance of their understanding, plaintiff took up development work in the suit land by taking possession of the property in the month of October, 1993. Defendant No.1 had obtained sanction plan for construction of super structures from village panchayath or H.A. Sanitary Board. However, defendant No.1 has not paid betterment charges in terms of law to the H.A. Sanitary Board. Subsequent to taking possession of the property, the plaintiff demolished the earlier super structures standing on the suit land, as they are not conducive to the developmental scheme taken up by him with the consent of defendant No.1. Thereafter, the plaintiff 9 has formed a layout of sites Nos.1 to 14/1, which were approved by the Board Authorities privately, in the name and style of 'WHISTELING GREENS', the plaintiff has spent lakhs of rupees for leveling the land and has also put up a compound wall around the suit land for security purpose. Subsequent to formation of layout on the suit land, the plaintiff and defendant No.1 entered into a formal agreement of sale dated
05.05.1994. The original documents of agreement dated 05.05.1994 was lying with the banker at Chennai.
7. As per the agreement, the sale consideration was fixed at Rs.85,00,000/- and a sum of Rs.10,00,000/- was paid as advance by way of cheque bearing No.787239 dated 05.05.1994. Towards the balance sale consideration amount, the plaintiff issued ten post dated cheques drawn on Vysysa Bank Limited, St. Marks Road Branch, 10 Bangalore, encashable during the span of six months. However, the plaintiff has paid the amount under other four different cheques covering an amount of Rs.30,00,000/-, which were duly encashed by defendant No.1 and paid the remaining Rs.45,00,000/- by way of cash within the stipulated period as contemplated under the agreement of sale dated 05.05.1994. As per the terms of the agreement, the betterment charges were paid by the plaintiff or by his nominees in the name of defendant No.1, who being the kathedar. In token thereof, defendant No.1 has to lend his hand for executing the registered sale deed in favour of prospective buyers. In the earlier stages, defendant No.1 co-operated with the plaintiff in the process of developmental activities in the suit schedule properties. After formation of the layout sites and after execution of the agreement of sale supra the plaintiff and defendant No.1 jointly executed an 11 agreement of sale in favour of one Sri Sreenivasa Rao Bheemarao Deshpande on 14.06.1994 and in pursuance of the agreement of sale, defendant No.1 has executed the sale deed in favour of A.S. Wandrekar (supra).
8. Defendant Nos.2 and 3 who are the wife and son of defendant No.1 have attested the sale deed as consenting witnesses and the plaintiff has signed the sale deed describing him as confirming party. The property covered under the sale deed is the site bearing No.5/01, house list katha No.187/1 and measuring 6,000 sq.ft. The plaintiff entered into an agreement of sale with defendant Nos.4 to 15 to sell site Nos.1 to 4, 6 to 8, 12 to 14 for valuable consideration. The site Nos.9, 10 and 11 were retained by the plaintiff as defendant No.1 expressed to buy the same. Site No.14/1 was remained with plaintiff as he could not secure any prospective buyer 12 due to non co-operation of defendant No.1. The plaintiff was always ready and willing to perform his part of the contract but it is defendant No.1, who is defaulting to perform his part of contract in terms of the agreement of sale stated supra. Defendant No.1 ceases to be the owner of the schedule property covered under the agreement of sale at the moment he has received the entire sale consideration and becomes an ostensible owner in respect of 94,000 sq.ft., as described in the plaint schedule property.
9. On 14.04.2003, the plaintiff noticed a public notice published in Times of India calling for objection from the interested persons in respect of 02 acres of land forming part of Sy.No.5/1 totally measuring 02 acres 23 guntas. The plaintiff sent a reply through his counsel dated 25.04.2003 to the public notice.
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10. An advocate by name Sri K. S. Madangopal sent a reply to the plaintiff's counsel calling upon him to produce the copies of the documents stated in the reply notice dated 25.04.2003. Thereafter, with an abundant caution, the plaintiff issued a separate legal notice dated 28.04.2003 calling upon defendant No.1 to execute necessary sale deed in pursuance of the agreement of sale dated 05.05.2004, however defendant No.1 has not come forward to comply with the said notice. On the other hand, defendant No.1 indulges in contracting with the third party to alienate the suit schedule property causing unlawful loss to the plaintiff. As such, the present suit for specific performance for the relief stated supra came to be filed. The suit came to be numbered as O.S.No.4858/2003 and assigned to XI Additional City Civil Judge (C.C.C.H.No.8), Bangalore City. 14
11. Subsequent to filing of the suit, defendant Nos.16 to 18 were impleaded at the instance of defendant No.12 and all the defendants were represented by their counsel.
As per defendant Nos.1 to 3:
12. After receipt of suit summons, defendant No.1 has filed his written statement which was adopted by defendant Nos.2 and 3. Defendant Nos.1 to 3 have denied entire plaint allegation including agreement of sale and consideration amount covered under the agreement of sale. However, defendant No.1 has admitted receipt of Rs.40,00,000/- from the plaintiff. But the same has nothing to do with the suit schedule property so also to the alleged amount covered under the alleged agreement to sale (supra). Defendant Nos.1 to 3 have denied that there is passing of physical possession during the month of October, 1993 and construction of compound wall 15 around the suit schedule property as claimed by the plaintiff, spending a sum of Rs.5,00,000/- and also leveling of the land by spending a sum of Rs.2,00,000/- to Rs.3,00,000/-, so also putting up of metal road in the suit schedule property. Defendant No.1 asserted that he is in actual possession of the suit schedule property as on the date of filing of the suit.
13. Defendant No.1 has admitted the execution of the sale deed in favour of Sri A. S. Wandrekar in respect of portion of the suit schedule land measuring 6,000 sq.ft., but he has denied that the site is the part of the land that as has been contended by the plaintiff. Defendant No.1 has pleaded his ignorance about the agreement of sale in favour of defendant Nos.4 to 15 in respect of the sites stated supra and denied that defendant Nos.4 to 15 are in possession of the said sites.
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14. The defendant Nos.1 to 3 specifically contended that the agreement of sale by plaintiff in favour of defendant Nos.4 to 15 are void and are not binding on them as per the case put forth by the plaintiff. The defendant has taken a specific contention that to the reply notice to the public notice, sent by the plaintiff, his counsel Sri M.S. Madangopal has sent a suitable reply calling upon the plaintiff to produce the documents stated in the reply notice. However, no documents were sent either by the plaintiff or his counsel. Defendant No.1 has denied regarding issuance of legal notice dated 28.04.2003 calling upon the defendant No.1 to execute the sale deed. The defendant No.1 has contended that the suit filed in the year 2003 is barred by time, as even according to the plaintiff the agreement of sale was executed on 05.05.1994. Accordingly, sought to dismiss the suit. 17
15. Defendant Nos.14 to 15 have filed their separate written statements and supported the case of the plaintiffs and sought to decree the suit as prayed for by the plaintiff.
16. Defendant Nos.16 to 18 have filed separate common written statements. As per defendant No.16 to 18, the defendants denied the case put forth by the plaintiff regarding the agreement. They have taken a specific contention that the alleged agreement of sale is void and illegal as the suit land has not been converted from agriculture to non-agriculture purpose and necessary permission had not been obtained from the Competent Authority as contemplated under Section 95(2) of the Karnataka Land Reforms Act. As such, the alleged agreement of sale cannot be enforceable in law. The defendants have specifically denied that the plaintiff is in possession of the suit schedule property.
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17. The agreement of sale entered between the plaintiff and defendant Nos.4 to 15 is wholly illegal and unenforceable as such, defendant Nos.4 to 15 have not acquired any right or interest over the suit schedule property. The defendants have taken a specific contention that the land bearing Sy.No.5/1 of Challagatta Village measuring 02 acres 23 guntas was an agricultural land and the same got converted into non-agricultural land by defendant No.1, as per the order passed by the Special Deputy Commissioner, Bengaluru, vide order dated 20.10.2003. Subsequently, defendant No.1 along with his son has sold the entire land of 02 acres 23 guntas in favour of defendant No.16 under a registered sale deed dated 14.11.2003.
18. Defendant No.16, thereafter, sold 34 and 1/3 guntas of land out of 02 acres 23 guntas in favour of defendant No.17 under the registered sale deed 19 dated 19.11.2003. Thereafter, on 06.12.2003 defendant No.16 has sold remaining 01 acre 28 and 2/3 guntas in favour of defendant No.18 under a registered sale deed and ever since the sale, earlier it is defendant No.16 and now defendant Nos.17 and 18 are in lawful possession of the said land. The sale deed executed by defendant No.16 in favour of defendant Nos.17 and 18 are valid sale deeds in the eyes of law and are binding on all persons including the plaintiff. The defendants have also taken a contention that there is no cause of action to file the suit and with other grounds raised in the written statement sought to dismiss the suit.
19. After the completion of pleading, the Trial Court framed totally 16 issues, which we reproduce as under:-
"On the basis of the rival pleadings of the parties, the following issues are framed:-20
1. Whether the plaintiff proves that the defendant No.1 agreed to sell the suit schedule property for Rs.85,00,000/- and executed an agreement of sale dated 5.5.1994 by receiving advance amount of Rs.10,00,000/-?
2. Whether the plaintiff proves that he has paid a further sum of Rs.30,00,000/- by issuing cheques and Rs.45,00,000/- by cash to the defendant No.1 towards balance sale consideration from time to time?
3. Whether the plaintiff proves that he was put in possession of the suit schedule property in part performance of contract?
4. Whether the plaintiff proves that he has been always ready and willing to perform his part of the contract?5. Whether the defendant No.16 to 18
proves that they are the bonafide purchasers of the suit schedule property for valid consideration?
6. Whether the suit is barred by limitation?
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7. Whether the time is the essence of the contract?
8. Whether the suit is bad for misjoinder of parties?
9. Whether the plaint is liable to be rejected under Order 7 Rule 14 CPC?
10. Whether the plaintiff is debarred to purchase the suit schedule property in view of the provisions of Sec.95(2) of the Karnataka Land Revenue Act, 1964?
11. Whether the suit agreement is hit by the provisions of Sec.79(A), 79(B) and 80 of the Karnataka Land Reforms Act, 1962?
12. Whether the suit is property valued and Court fee paid is just and proper?
13. Is there any cause of action to file this suit?
14. Whether the plaintiff is entitled the relief of specific performance of contract?
15. Whether the plaintiff is entitled the relief of permanent injunction?
16. To what order or decree?"
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20. The plaintiff in support of his case has examined as PW.1 and 7 witnesses as PW.2 to 8 and produced 67 documents marked as Ex.P.1 to Ex.P.67 and closed his side. On behalf of the defendants, defendant No.1 examined as DW.1 and one Sri A.T. Gopinath, the authorized signatory of D.16 and P.A holder of D.17 and D.18 was examined as DW.2 and produced 27 documents marked Ex.D.1 to D.27.
21. After completion of trial, the Trial Court heard the arguments of both parties and upon considering the rival claims, both oral evidence as well as documentary, proceeded to answer the issues framed supra as under:
"Issue No.1: In the negative;
Issue No.2: In the negative;
Issue No.3: In the negative;
Issue No.4: Does not survive for
consideration;
Issue No.6 & 7: Do not survive for
consideration;
Issue No.8: In the negative;
Issue No.9 : In the negative;
23
Issue No.10 & 11: In the negative;
Issue No.12: In the affirmative;
Issue No.13: In the affirmative;
Issue No.14: In the negative;
Issue No.15: In the negative;
Issue No.16: As per final order for
the following."
22. Having answered all the issues against the plaintiff, the Trial Court having found that the plaintiff has not proved the original agreement of sale dated 05.05.1994 said to have been executed by defendant No.1 in favour of plaintiff and did not produce the foundational facts for producing the secondary evidence i.e., photocopy of the said agreement, declined to accept the secondary evidence. Accordingly, held that the plaintiff has failed to prove his case and proceeded to dismiss the suit. It is this judgment and decree passed by the Trial Court called in question by the plaintiff in this present Regular First Appeal.24
23. Heard Sri Ashok Haranahalli, learned Senior counsel for Sri Neeraj Rajiv Shivam, learned counsel for the appellants and Sri Anathakrishna Murthy, learned counsel for defendant Nos.1 and 2 and Sri R.V.S. Nayak, learned Senior counsel for Sri Vinayagiri, learned Counsel appearing for caveator/respondent Nos.16 to 18.
24. Respondent No.3 is minor represented by respondent No.2, appeal against respondent Nos.5, 9, 10, 12 and 13 is dismissed.
25. Respondent Nos.4, 6, 7, 8, 11 and 15 though served unrepresented. Vide order dated 04.12.2012, service of notice in respect of respondent No.14 is held sufficient.
26. Sri Ashok Haranahalli, learned Senior counsel for the appellants has submitted on the understanding between the plaintiff and defendant 25 No.1, the plaintiff proceeded to demolish super structures standing on the suit schedule property, leveled the land by incurring the huge expenses of 2-3 lakhs during the year 1993, formed layout consisting several sites and constructed compound wall around the suit schedule property for security purpose by incurring sum of Rs.5,00,000/-. Subsequent to the development of land and formation of layout and sites, the plaintiff and defendant No.1 have entered into an agreement of sale dated 05.05.1994, whereunder the sum of Rs.85,00,000/- was fixed as sale consideration and sum of Rs.10,00,000/- was paid on the very same day through cheque in favour of defendant No.1.
27. The plaintiff has issued ten post dated cheques encashable during six months for payment of balance sale consideration of Rs.75,00,000/-, however, under four different cheques paid a sum of 26 Rs.30,00,000/- in favour of defendant No.1 and balance Rs.45,00,000/- was paid by way of cash. In between this, the plaintiff had entered into an agreement of sale with one Sri. Srinivas Rao Bheemarao Deshpande on 14.06.1994. Subsequently sold, at the instance of agreement holder, by the plaintiff and defendant Nos.1 site covered under the agreement supra measuring 6,000 Sq. ft. of land out of 94,000 Sq. ft. in favour of one Sri. A.S.Wandrekar. The present appeal is filed for specific performance in respect of remaining 94,000 sq. ft.
28. He has further submitted that the original agreement of sale was lost and sought to produce the photo copy. Earlier, he has filed I.A.15 seeking to produce photocopy the original document. The said application came to be dismissed, which was taken in W.P. No.22043/2005 before this Court resulted in 27 dismissal, reserving liberty to raise it as a ground in appeal.
29. Subsequently, the plaintiff has filed I.A.No.18 before the Tribunal under 11 Rule 14 of CPC r/w Section 151 with a request to direct defendant No.1 to produce the original document i.e., agreement of sale dated 05.05.1994 along with the other documents sought in the said application.
30. The trial Court framed point No.1 in the said I.A., as to whether the plaintiff has made out sufficient grounds to direct first defendant to produce the document as called for in the application. The point No.1 was answered in negative, holding that, in view of the specific denial by the defendant regarding the agreement of sale sought in the application, there is no question of issuing direction to defendant No.1 to produce documents called for in the said application 28 consequently dismissed the application. Thereafter, one more application has been filed by the plaintiff under Order XVIII Rule 4(1) r/w Section 151 of Code of Civil Procedure, 1908 and Section 63(2) and Section 65(c) of the Indian Evidence Act, 1872, seeking to mark copy of agreement of sale dated 05.05.1994 as an exhibit in support of his evidence before the trial Court. The contesting defendants filed objections and the application came to be dismissed, as no grounds made out to mark the said document.
31. Learned Senior Counsel vehemently submitted that under the agreement to sell dated 05.05.1994, a sum of Rs.40,00,000/- was paid through cheque and remaining was paid in cash on different dates. The agreement of sale dated 05.05.1994, has been referred in the subsequent documents i.e., Ex.P.55. The agreement of sale dated 14.06.1994 executed by the plaintiff and defendant 29 No.1 in favour of one Srinivas Vimravadesh Pandey, wherein, at clause No.5 on page No.8 a specific recital was made stating that "the developer and owner confirm that the agreement for sale dated 05.05.1994, between themselves is valid and subsisting till this day and binding upon both of them".
32. Learned Senior Counsel has further submitted that in the cross examination, defendant No.1 has admitted the receipt of 40,00,000/- through cheque. The first payment he had received was Rs.10,00,000/- and subsequently he has received Rs.7,50,000/- each under four different cheques. The sum of Rs.10,00,000/- was paid by the plaintiff under Cheque bearing No.787239 dated 05.05.1994, drawn on Vysysa Bank Limited, St. Marks Road Branch, Bangalore and the remaining four cheques of Rs.7,50,000/- each were issued under different 30 cheques dated 05.06.1994, 05.07.1994, 05.08.1994 and 05.09.1994. This clearly shows that there is an agreement of sale dated 05.05.1994 entered into between the appellant and defendant No.1.
33. Learned Senior Counsel has taken us to Ex.P19 produced at page No.117 of the paper book containing certified copy of the sale deed dated 16.11.1995, wherein the name of the plaintiff is shown as confirming party. There is a clear recital that the confirming party has signed the said deed to confirm the correctness of all the recitals embodied in the sale deed, wherein, there is recital that out of the amount fixed, Rs.50/- per sq. ft. is paid to the vendor and balance is for the cost of developments paid to the confirming party for the common area and facilities provided as per the contract by the confirming party.
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34. Based on this, the learned Senior Counsel stressed that since there was an agreement of sale on 05.05.1994 between the appellant and defendant No.1 and the sites were formed on the land covered under the agreement of sale, the appellant/plaintiff was shown as confirming partner, if there is no such agreement as contended by the defendant, there is no need for the defendant in the agreement of sale in respect of the sites formed on the suit schedule property to include and show the name of appellant as confirming party and payment of developmental amount and payment of amount towards developments carried out by the appellant in respect of common areas and facilities, as per the contract.
35. This clearly shows that there is an agreement of sale entered into between the parties. The trial Court has failed to consider this aspect of matter while answering issue Nos.1 and 2. Several 32 documents, were marked during the evidence, wherein name of the appellant was shown as confirming party. All these collectively shows that the agreement dated 05.05.1994, is subsisting between the plaintiff and defendant No.1.
36. The learned Senior counsel has taken us through Ex.P.1, produced at page No.35 in the paper book, a reply to the public notice dated 04.04.2003 issued by K.S. Madanagopal in Times of India, daily newspaper on behalf of defendant Nos.1 to 3 to contend that, immediately noticing the public notice the appellant had issued reply disclosing the agreement and other documents. He further submits that the defendant nos.1 to 3in their reply to the said reply supra sought copies of the document though the document was furnished along with the reply notice to the public notice. As the plaintiff having smelt that defendant indulged in illegal way to frustrate the 33 agreement thereby causing unlawful loss to the plaintiff, despite having entered into an agreement to sale dated 05.05.1994 and not coming forward to discharge his part of performance, issued a legal notice at Ex.P.3 dated 28.04.2023 through his counsel against defendant Nos.1 to 3 calling upon defendant No.1 to honour his part of performance under the agreement to sale dated 05.05.1994 so also calling upon defendant Nos.2 and 3 to extend the necessary co-operation for execution of the sale deed. However, the defendant Nos.1 to 3 despite notice have not come forward to execute the sale deed as claimed in the notice. As such plaintiff filed suit seeking specific performance against defendant Nos.1 to 3 and others.
37. The learned Senior Counsel would further submits that the defendant Nos.1 to 3 in the written statement at paragraph No.6 categorically admitted receipt of Rs.40 lakhs through cheque, but contended 34 that the amount has nothing to do with the land in question and the agreement as well. Learned Senior Counel states that it supports the case of the plaintiff as claimed in the suit regarding payment of Rs.40 lakhs by way of cheque. The learned Senior Counsel has taken this Court to Ex.P.51 produced at page No.322 of the paper book under the heading " Land Payments to D. Venkatesh (Sy.No.5/1 Chalagatta village) from 01.04.1995 to 31.03.1996, wherein a total sum of Rs.45 lakhs stated to be paid in cash on different dates during the year 1995-96, starting from August, 1995 to February, 1996. The extract produced at Ex.P.51 is part of Ledger maintained during the course of normal business by the plaintiff to show the payments paid/received. This clearly shows that the entire sale consideration covered under the agreement to sell dated 05.05.1994 has been paid. Accordingly, it is the plaintiff who becomes 35 real owner but for short of sale deed, the name of defendant No.1 is continued in the record, but he is just an ostensible owner.
38. Sri Ashok Haranahalli, learned Senior Counsel sofar as, leading of secondary evidence is concerned, submits on the foundational facts, taken this Court through the plaint averments, stressed on averments stated in paragraph No.5 of the plaint, to contend that the original agreement to sell dated 05.05.1994 entered between the plaintiff and defendant No.1, was lying with his bankers and same would be produced in due course. He has further stated that the partition deed which was marked as document No.1 in the plaint clearly reveals the title of defendant No.1 as to how he has derived the title to the property under the family partition. The plaintiff in order to substantiate his claim regarding placing the original agreement to sell in the hands of his banker, 36 examined P.W.8 - Sri Tulsidas Lalchand R/o Tennur, Anna Nagar West, Tiruchi, who is a private banker business of lending loans. The said banker has stated in his examination-in-chief that during the course of his business transaction, he knows the plaintiff as there were loan transaction between the plaintiff and the said banker as the plaintiff is running real estate business in and around Bengaluru since past few years. He has further stated that the plaintiff to secure a loan borrowed from him, has deposited the original agreement to sale dated 05.05.1994 with the banker in respect of suit schedule property entered into with defendant No.1 along with receipts executed by D. Venkatesh in respect of payments made to him by the plaintiff.
39. P.W.8 has further stated that he has brought the said documents to Bengaluru on the oral request made by plaintiff that he would repay the 37 amount of loan. However, as the plaintiff agreed to close the loan at a later date, he left Chennai along with documents on 30.07.2002 and during the transit he lost his baggage wherein the said documents were also kept and in that respect he has lodged a complaint with the Railway Police, Crime Branch, Madras Central on 30.07.2002, who registered a Criminal case in Crime No.70/M/2/2002. He has further stated that he has issued a letter dated 15.12.2004 to the plaintiff informing him that he has lost the document in the above incident and assured him that he would come and depose before the Court, if required, to substantiate the claim of the plaintiff. Sri Haranahalli, further stressed that though the said witness was cross-examined nothing worthwhile has been extracted to discredit the witness. The statement made in the plaint at paragraph No.6 coupled with the evidence of the banker, the earlier 38 filing of application though dismissed made out a case for secondary evidence. As the trial Court has failed to consider the same, the appellant has filed an application under Order 41 Rule 27 of CPC seeking to produce copy of the agreement to sale dated 05.05.1994. To substantiate his claim, the plaintiff has produced Ex.P.45 an intimation letter dated 10.12.2004 wherein the banker has stated that he might have misplaced or lost the document in the train in which he was traveling from Bengaluru to Chennai and also forwarded a copy of the police complaint for the reference of the plaintiff. The copy of the FIR was produced at Ex.P.53, wherein the police have registered a Criminal Case in Crime No.74/M/2/2002, wherein, there is a clear mention of missing of one brown colour suit case containing the documents stated therein. All this clearly amounts to foundational facts for the purpose of leading 39 secondary evidence when the primary evidence is absent. The trial Court has failed to take note of the same and proceeded to hold that the appellant has failed to prove the agreement as the document is not produced and declined to accept the photocopy for short of foundational facts for leading secondary evidence as contemplated under Section 65 of the Indian Evidence Act, 1872 (for short, 'the Evidence Act'). Sri Haranahalli further stated that in order to substantiate the claim plaintiff has examined in all eight witnesses. P.W.2 has stated regarding execution of the agreement to sale and has also deposed that the document was deposited with P.W.8.
40. P.W.2 who is the GPA holder of the plaintiff, was taking care of all the matter with regard to managing the finance of the plaintiff since 1982 and having complete knowledge regarding the dispute involved in the suit, he has stated that in pursuance of 40 oral agreement in the year 1993 between defendant No.1 and plaintiff, the plaintiff had developed the suit schedule property, formed the layout comprising of sites and subsequent to that, there was an agreement of sale dated 05.05.1994, entered into between plaintiff and defendant No.1 for purchase/sale of the suit schedule property and he has read the entire contents of the agreement to sale. The clauses in the said agreement were drafted after lot of deliberations by both the parties. He has arranged payment of sale consideration through Vysya Bank and Canara Bank on behalf of the plaintiff for the purchase of the suit schedule property from defendant No.1. On the instructions of plaintiff, P.W.2 has deposited the said agreement to sell to private bankers namely, Mr. Tulsidas Lalchand - P.W.8 in order to avail some financial accommodation and further deposed that P.W.8 lost the documents during the transit so also 41 regarding police complaint in that regard. However, he has stated that he has not signed the agreement to sell as a witness, as he had to go out for some other business transaction, though he was present for negotiation and made arrangement for the said transaction. He has further stated that Mr. Uppin and Mr. Ashok Banu were present. He has further stated that a sum of Rs.40 lakhs was made through cheque and balance of Rs.45 lakhs was paid through cash. He has also stated regarding the contents of agreement to sell in his examination-in-chief. Further stated regarding the mode of payment of sale consideration.
41. P.W.3 is an employee of the plaintiff and he has stated regarding execution of the agreement to sell stated supra and the sale consideration of Rs.85 lakhs and developmental work. He has further stated that the plaintiff along with defendant Nos.1 to 3 had sold portion of the suit schedule property to 42 purchasers including Mr. Srinivash B. Deshpande and Sri Suman H. Vardekar and he has also deposed that as per the directions of plaintiff he has lodged complaint before the jurisdictional police on each occasion when the defendant attempted to tress-pass and disturb the plaintiff's peaceful possession and enjoyment of the suit property and he kept visiting the suit schedule property for and on behalf of the plaintiff.
42. P.W.4 was a witness to the agreement to sell. He has deposed that he has signed the agreement to sell as a witness and he is aware of the contents of the agreement. In his examination-in- chief, he has stated that the agreement to sell dated 05.05.1994 was executed before him and Ashok Banu in the office of the plaintiff at Eaden Park, Vithal Mallya Road, Bengaluru and he has signed on the last page of the document. The photo copy contains his 43 signature so also the Ashok Banu, which he had identified. He also identified the signature of plaintiff in his examination-in-chief. He also says about the consideration agreed under the agreement to sale and the measurement of the property so also passing of consideration of Rs.40 lakhs by way of cheque and Rs.45 lakhs through cash.
43. P.W.5 was another witness to the agreement to sale consideration and stated in line with P.W.4.
44. P.W.6 is the Contractor who is a witness to the sale deeds dated 16.11.1995 and 17.11.1995 executed by defendant Nos.1 to 3, wherein the plaintiff shown as consenting party in favour of Srinivas B. Deshpande and his nominee Mr. Annayya S. Wadekar and in favour of Mr. Suman H. Wadekar and his nominee Mr. Manik S. Wadekar.
44
45. The learned Senior Counsel further submits that though the defendant Nos.1 to 3 have cross- examined the witnesses P.W.2 to 8 at length, however nothing worthwhile has been extracted to discredit the witnesses.
46. Sri Ashok Haranahalli taking this Court to the judgment of the Trial Court, stressed on paragraph Nos.12, 14, 16, 21, 23, 24, 30, 31 and 32 to contend that though the trial Court has come to a conclusion that the documents produced at Exs.P.10 to 18, 22 to 25, and 27 to 34 documents connected to suit in O.S.No.6285/2003 and 6288/2006 filed by defendant Nos.17 and 18 together with Exs.P.19, 35, 55, 26 to 41 would show that plaintiff and defendant No.1 had entered into an agreement to sale dated 05.05.1994 in respect of Sy.No.5/1 but erred in holding that the said documents cannot become the 45 substitute to the alleged agreement to sell dated 05.05.1994, for the plaintiff to prove the execution and in terms of the said agreement, as the plaintiff has failed to produce the very document to prove execution and terms of the agreement as required under law. The trial Court only on the said count non- suited the plaintiff holding that the plaintiff neither proved the execution of the document nor the payment of sale consideration in the teeth of admission by the defendant regarding receipt of Rs.40 lakhs paid under various cheques from May 1994 to September, 1994.
47. Learned Senior Counsel also submitted that the trial Court has failed to consider the subsequent document i.e., registered sale deeds and the agreement to sale, wherein the appellant was shown as confirming party and insofar as agreement to sale dated 14.06.1994 in favour of Srinivash B. Deshpande 46 wherein at clause-(m), there is a clear stipulation regarding the agreement to sell dated 05.05.1994 and its effect on both plaintiff and defendant No.1. Further stated that Clause from (q) to (v) clearly shows that the plaintiff was shown as developer and the obligation on the part of the developer, to contend that in the absence of any agreement as stated by the defendants, there is no need for them to include the plaintiff in the said document as confirming party and also agreeing for payments for the developmental works in those documents, after making payments to defendant Nos.1 to 3, in favour of plaintiff. These documents clearly show that there is an agreement in favour of the plaintiff and defendant No.1 and proved the agreement in respect of suit schedule property so also payment of Rs.85 lakhs towards sale consideration, the trial Court has failed to consider this aspect of the matter. Sofar as sale deeds in 47 favour of defendant Nos.16 to 18 are concerned, the same are subsequent to filing of the suit. The suit was filed on 22.05.2003 and the sale deeds comes to be executed on 14.11.2003 and thereafter. The learned Senior Counsel further submit that in the written statement, the defendant No.1 has not stated that the amount has been received in respect of any other transaction except bald statement that this amount has nothing to do with the land in question.
48. In support of his arguments, learned Senior Counsel relied on the judgment of the Hon'ble Apex Court in the case of Shyam Kumar Inani Vs. Vinod Agrawal and Others1 and stressed on paragraph No.85, to contend that any sale transactions during the pendency of the suit are hit by lis pendens and they are subject to the doctrine and cannot prejudice the plaintiffs' rights under the prior agreement to sell 1 (2025) 3 SCC 286 48 as the transferee acquired the property subject to the outcome of the pending litigation and cannot defeat the plaintiff's claim for specific performance. He has further relied on the judgment of the Hon'ble Apex Court in Vijay Vs. Union of India and Others2 and stressed on para Nos.33 to 35 to contend on the aspect of principles relevant for examining admissibility of secondary evidence and to contend that the exceptions carved in Sections 63 and 65 of the Indian Evidence Act are designed to provide relief when a party is genuinely unable to produce the original though no fault of that party and when the non-availabity of a document is sufficiently and properly explained the secondary evidence can be allowed. The Hon'ble Apex Court in the said judgment has held that secondary evidence could be given when a party cannot produce the original document for any 2 C.A.No.4910/2023 DD: 29.11.2023 49 reason not arising out of his default or neglect and once the foundational facts and evidence are laid in respect of primary evidence, the copies of the said primary evidence produced in the absence of original document becomes good secondary evidence and can be received in evidence. So also the Apex Court held in respect of secondary evidence of unstamped/insufficiently stamped documents which has been answered in the affirmative relying on the earlier judgment in Jupudi Kesava Rao's case. He has further relied on the judgment of the Hon'ble apex Court in the case of Neeraj Dutta Vs. State (Government of NCT of Delhi)3 stressing on para Nos.59 to 63 so also the judgment in J. Yashoda Vs. K. Shobha Rani4 and relied on para Nos.6 to 10 on the secondary evidence to contend that the trial Court 3 (2023) 4 SCC 731 4 (2007) 5 SCC 730 50 committed serous error even not permitting the plaintiff to produce the document.
49. He has also relied on the judgment of the Hon'ble Apex Court in the case of Dhanpat Vs. Sheo Ram (Deceased) through LRs and Others5 on secondary evidence and relied on para Nos.15, 18, 19 and 22. So also relied on the judgment of the Hon'ble Apex Court in the case of Thailammal and Others Vs. Janardhan Raju and Others6 and relied on para No.10 to contend on the point that any rejection of interlocutory application, by virtue of Section 105 of CPC, the same can be raised as a ground in the appeal. He has relied on the judgment of Hon'ble Apex Court in the case of Thangam and Another Vs. Navamani Ammal7 and relied on para No.25 and also relied on the judgment of Hon'ble Apex Court in Jaspal 5 (2020) 16 SCC 209 6 1995 Supp. (4) SCC 455 7 (2024) 4 SCC 247 51 Kaur Cheema and another Vs. Industrial Trade Links and Others8 and relied on para No.7 to contend that as per Order 8 Rule 3 and 5 of CPC, there must be a specific admission and denial of pleadings in the plaint. A general or evasive denial is not treated as sufficient as per the provisions stated supra, the general rule is that the facts admitted are not require to be proved, in reference to the admission by the defendant in his written statement at para No.6 regarding receipt of amount of Rs.40 lakhs under various cheques from May, 1994 to September, 1994. In the last judgment (Thangam supra) at para No.7, the Hon'ble Apex Court has held that the defendant is required to deny or dispute the statements made in the plaint categorically and evasive denial would amount to an admission of the allegation made in the plaint in terms of Order 8 Rule 5 of CPC and 8 (2017) 8 SCC 592 52 contended that a failure to make specific denial amounts to an admission.
50. The learned Senior Counsel submits that as the document was not taken on record even for marking as an exhibit, the copy of the same is produced as additional evidence, in terms of Order 41 Rule 27 of CPC, which clearly says that appellate Court may consider the evidence when the Court from whose decree the appeal is preferred has refused to admit the evidence which ought to have been admitted in terms of clause (a) to Sub-rule (1) of Rule 27 of Order 41 of CPC. When a document is produced though a photocopy/secondary evidence in view of the foundational fact having been laid to admit the same in evidence. The trial Court has failed to discharge its duty to consider the same, in view of the settled position of law in the case of Vijay and Neeraj Datta supra, the trial Court has committed serious error in 53 not permitting the plaintiff to produce the document which has resulted in dismissing the suit causing miscarriage of justice. As such, submitted that when substantial right in respect of immovable property is involved and by way of evidence is brought before the trial Court regarding the rights flowed in the agreement, the trial Court, when a party has made out a case for admitting the document though a photocopy/secondary evidence, ought to have considered the same, in view of the foundational facts by way of pleading as well as evidence of P.W.8 and the application filed stating the circumstances under which the earlier application seeking direction to defendant No.1 to produce the document and subsequently stating the reasons under which photocopy of the document is produced.
51. The trial Court has failed to consider the said aspect of the matter which has resulted in 54 miscarriage of justice. Accordingly, the same document is produced as additional evidence by way of application under Order 41 Rule 27 of CPC, wherein the appellate Court is duty bound in terms of clause
(a) to Sub-rule (1) of Rule 27 of Order 41 of CPC to consider the evidence, where the trial Court against whose decree the appeal is preferred has refused to admit the evidence which is the foundation to the right claimed under the suit. The rights claimed in the suit are in respect of an immovable property being substantial rights, the trial Court ought to have considered the said document rather attributing on technicalities, which amounts denying the substantive right accrued in favour of the plaintiff under the agreement that too when the entire sale consideration has been paid proved under specific admission at para No.6 of the written statement as well as production of extract of ledger maintained for the day-to-day 55 business at Ex.P.51. In the event, the agreement is taken on record, the findings of the trial Court required to be reversed as the suit was dismissed on the count that the plaintiff has not proved issue Nos.1 and 2 regarding execution of agreement as well as payment thereof in the absence of agreement itself is produced to show the terms agreed upon by the parties in the agreement. Though the trial Court has specifically stated in para No.32, that, the documents produced stated in the said paragraph, would at the best show that plaintiff and defendant No.1 had entered into an agreement dated 05.05.1994 in respect of Sy.No.5/1, however, erred to hold that the said documents cannot become the substitute of the document referred in those documents cannot be considered as substitute to agreement to sell dated 05.05.1994 facilitating the plaintiff to prove the execution and terms of the agreement between him 56 and the defendant No.1 as the plaintiff has not produced the very agreement itself to prove the execution and terms of the said agreement in between them. With this, the learned Senior Counsel sought to allow the appeal, set aside the judgment and decree passed by the trial Court and decree the suit. Submissions of Sri Ananthkrishna Murthy, learned counsel for respondent Nos.1 and 2:
52. Sri Ananthkrishna Murthy refuting the submissions of learned Senior Counsel appearing for the appellant with all vehemence submitted that the plaintiff deliberately suppressed the relevant facts and that the defendant has specifically denied at paragraph Nos.3 and 4 of the plaint and as could be seen from the averments made in paragraph Nos.3 and 4, eventually even according to the plaintiff, the alleged development work was not official but entire thing is unofficial, in the absence of any permission by 57 making betterment charges, as forthcoming from the said paragraphs. The plaintiff has not produced anything regarding the contentions taken in paragraph Nos.5 and 6. The plaintiff has not proved the alleged agreement of sale dated 05.05.1994 in terms of law.
To claim a specific performance in the suit, the said alleged agreement is base under which all the rights claimed by the plaintiff flows. In the absence of the said document of terms stipulated in such agreement cannot be proved to stake any claim. The mere mention of said agreement in the subsequent documents will not enure to the benefit of the plaintiff, as plaintiff has to prove his case at his own grounds and not on the weakness of the defendant. In the absence of production of agreement of sale, itself and secondary evidence for short of conditions as envisaged under Section 65 of the Indian Evidence Act, to establish his claim as such the rights claimed 58 are not proved. The trial Court rightly answered issue Nos.1 and 2 against the plaintiff holding that the plaintiff neither proved the agreement nor the payment thereof as contended. The learned counsel has raised a specific legal point contending that even the agreement alleged, that of agreement of sale dated 05.05.1994 was reduced into writing on a stamp paper worth Rs.10/- and in the said agreement it is shown that the possession has been conveyed/transferred in favour of the plaintiff by defendant No.1. As such, the agreement, once there is conveyance i.e., parting of the possession, should be read as if a conveyance under Article 5(e) of the Karnataka Stamp Act, 1957 (for short, 'the Stamp Act') and in that view of the matter, for short stamp duty hit by Section 34 to 37 of Stamp Act, and cannot even be looked into as the same is inadmissible. The agreement even according to the plaintiff written on a 59 stamp paper worth Rs.10/- in view of provisions stated supra becomes inadmissible in law.
53. In the case on hand, it becomes even hard for the plaintiff to make good the stamp duty in consonance with Sections 34 to 37 of Stamp Act. The reason being the document produced is copy of the original. As such, the copy cannot be validated by impounding and it cannot be admitted as secondary evidence. It is settled position of law that a document which is insufficiently stamped can be impounded and make good by directing the party to pay the stamp duty and penalty as contemplated under the provisions of Stamp Act, however, the said provisions are not applicable to a copy of the instrument. Section 2(1)(j) of the Stamp Act provides for definition of 'Instrument', which includes every document and record created or maintained in or by an electronic storage and retrieval device or media by 60 which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded. However, the same cannot be extended to a copy of the instrument. The instrument stated that there is a document is the document itself and not the copy of the document i.e., original in view of specific bar under the Stamp Act. As such, even the document cannot be impounded and validated subsequently. To buttress his contention, learned counsel relied on judgment of Hon'ble Apex Court in the case of Hariom Agrawal Vs. Prakash Chand Malviya9
54. The learned counsel has taken this Court through the evidence of P.W.8 to contend that as per the evidence of the witness, the documents deposited for a secured loan. However, as per Ex.P.49(A) produced at page No.309 of the paper book, the amount was towards unsecured loans from 01.04.1995 to 9 (2007) 8 SCC 514 61 31.03.1996 and the amount stated to have been taken as a loan from P.W.8 is just Rs.5, 88,000/-. In these circumstances, the amount shown at Ex.P.51
(a) under the heading "Land payments to D. Venkatesh" in relation to Sy.No.5/1 of Chalaghatta village from 01.04.1995 to 31.03.1996 is highly unbelievable and creates a doubt. He has further submitted that as per Ex.P.53, which is a complaint dated 30.07.2002, wherein P.W.8 had lost his brief case containing documents and according to him, the same contains the document i.e., alleged agreement of sale dated 05.05.1994, which was also brought from Chennai to Bengalur on the oral request of plaintiff on the premise that he is going to clear of the loan which he had obtained from P.W.8, however, as the plaintiff has took time to close the loan on future dates, P.W.8 returned to his place along with document and during the transit, he lost the brief 62 case. This clearly shows that the plaintiff was well aware of the loss of the document, however the fact was not stated in the plaint but has vaguely stated that the original document of agreement to sell dated 05.05.1994 is under the custody of his banker for the loan he has obtained. A perusal of Ex.P.53 wherein P.W.8 has stated minutely regarding all the documents which the brief-case had contained, however, there is nothing slightest to mention regarding the document i.e., alleged agreement to sell dated 05.05.1994 allegedly handed over by the plaintiff in favour of him. There is no mention of any word either to state that the documents handed over by any of his clients as security for the loan obtained. In these circumstances, it is highly unbelievable and creates a doubt regarding whether the said document has been handed over to P.W.8 by plaintiff and he has lost it during the transit.
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55. The learned counsel has taken us through page Nos.134, 136, 137 and 139 i.e., examination-in- chief and cross-examination portion of P.W.8, in paper book at Volume-II regarding loss of document. In the examination-in-chief, the witness has stated that he has lost the document during the transit and the same has been intimated to the plaintiff under letter dated 15.12.2004. However, in the cross-examination the said witness has admitted that his son as well as his friend have lent money to the plaintiff and they have maintained the account in connection with money lent to the plaintiff. However, the said document is not produced to substantiate that the plaintiff obtained loan from P.W.8 and deposited the said alleged agreement to sell as security towards the loan and he has also pleaded his ignorance that how much amount has been lent by his son as well as his friend to the plaintiff and also pleads that he do not remember 64 what are the documents given by the plaintiff at the time of taking loan as security. He further admits that he has not furnished the details of contents of the suit case in respect of the documents on which he has come before the Court to depose. He has further admitted that he has not produced any document to show that he has come to Bengaluru on 29.07.2002 and he was returning back to Chennai from Bengaluru on 30.07.2002. He has stated that he do not remember whether the plaintiff has paid back the loan amount and further admitted that when there is no balance, it may be treated that the documents have been returned to the party and categorically has deposed that he knew the fact that the documents have been returned to the plaintiff.
56. The learned counsel referring to the evidence of P.W.8, has stated that the evidence, has not placed anything on record to show that he had 65 come to Bengaluru from Chennai on 29.07.2002 and returned to Chennai on 30.07.2002 expect the copy of the receipt for having lodged complaint on 30.07.2002 at Ex.P.53. Though he has stated that on the oral request of the plaintiff he has brought the document, however, Ex.P.53, the complaint falsifies his statement wherein he has given minutely regarding the contents of the brief case. There is nothing stated even remotely that he has lost the document which have been deposited with him by his clients while obtaining loan. This is clearly shows and falsifies the story of plaintiff as well as P.W.8 and suggests that the same is created subsequently to suit their contentions and to overcome for non-production of original agreement to sell as the same is not in existence in view of denial by the defendant No.1. The trial Court has clearly held that the plaintiff has not led any foundational facts to produce secondary 66 evidence and the one stated in the application as well as in the plaint will not come to his rescue as being foundational facts, envisaged under Sections 63 and 65 of the Evidence Act.
57. He has taken us through cross-examination of P.W.1 dated 20.06.2005 on compliance of Section 65 of Evidence Act, wherein the plaintiff has clearly admitted that he has not written any letter to P.W.8 asking him to return the original agreement to sell. This clearly falsifies the case of the plaintiff. The evidence of P.W.8 will not come to the aid of plaintiff to contend that he has handed over the original alleged agreement to sell to the said witness in view of loan obtained as the said fact has been falsified in the teeth of admission by the plaintiff that the amount borrowed from P.W.8 is a secured debt, however, the contents at Ex.P.49(a) the income tax returns as well as scheduled loans liability attached to it, it is stated 67 that the debt is an unsecured debt. There are several clear admissions by the plaintiff as to when he has taken loan from P.W.8 in order to substantiate his claim that he has paid amount of Rs.45 lakhs by way of cash after obtaining the loan, which goes against the plaintiff.
58. Sofar as the payments stated as land payments to D. Venkatesh referred to at Page No.322 of the paper book at Ex.P.49(a) reference to the year from 01.04.1995 to 31.03.1996, whereas the loan obtained under Ex.P.49(a) according to the plaintiff from P.W.8 for the first time during 1994 and the document of agreement to sell was handed over. The amount shown under ExP.49(a) is only to the tune of Rs.5,88,000/-. The counsel further submits that it is highly unbelievable for a person to deposit a document worth Rs.85 lakhs for just sum of Rs.5,88,000/- except the amount of Rs.5,88,000/- as 68 stated in Ex.P.49, there are no other document produced to substantiate the claim of the plaintiff that he has obtained substantial loan and paid Rs.45 lakhs by way of cash to the defendant No.1. This clearly falsifies the case of the plaintiff. As per the plaintiff, he has obtained loan in the year 1994 by depositing the agreement to sell with P.W.8, however, at para No.5 of the plaint, he has not mentioned the name of the person from whom he has obtained loan deliberately except saying that original is lying with his bankers. The evidence of P.W.1 and P.W.8 are inconsistent and contradictory to one another. The plaintiff has not stated in his reply notice to the pulbic notice at Ex.P.1 as well as the legal notice at Ex.P.3, nothing regarding banker or obtaining loan by banker by depositing the agreement to sale. The payment as per Ex.P.51(a) even according to the plaintiff was from 01.04.1995 to 31.03.1996. No documents have 69 been produced to show that amounts are paid in the year 1994 as contended by P.W.1. P.W.1 in his evidence has clearly stated that he has paid the amount in the year 1994. This inconsistency in the oral evidence and documentary evidence falsifies the entire case of the plaintiff regarding the payment of cash during the year 1994.
59. Sofar as receipts are concerned at Ex.P.59 to 64 are all pertaining to Sy.No.3 of Chalagatta village, Vartur Hobli, Bengaluru South Taluk and nothing to do with Sy.No.5/1 and as such they do not come to the aid of the plaintiff as they are ailent document involved in the present case. With this, the learned counsel argued in support of the judgment that the trial Court having taken note of entire materials placed before it, properly answered issue Nos.1 and 2 the negative and against the plaintiff and answered all the subsequent issues against the 70 plaintiff. The order passed is a well reasoned judgment dismissing the suit, the same does not suffer from any infirmities, as such does not call for any interference at the hands of this Court.
60. Sofar as additional evidence is concerned, the learned counsel submits that as the document falls short of foundational facts, the trial Court having rightly rejected it in view of the provisions of Evidence Act which carves as an exception to Rule 27 of sub- rule 1(b) of CPC saved the application does not require to be looked into and be dismissed. Accordingly, sought to dismiss the appeal.
61. As per Sri R.V.S. Naik, learned Senior Counsel for Sri Vinay Giri, learned counsel appearing of respondent Nos.16 to 18, fairly submitted that he supports the arguments advanced by learned Senior Counsel Sri Ananthkrishna Murthy, however he has 71 added his submissions on I.A.No.18 which is rejected subsequently. As such, even the liberty granted by the Court does not survive for consideration. There is no issue on loss of document. The Order VII Rule 14 of CPC specifically states regarding production of document on which the plaintiff sues or relies. The plaintiff having failed to produce the original document, the trial Court having considered the absence of original and in the absence of foundational facts, rightly rejected the claim of the plaintiff to produce alleged agreement of sale dated 05.05.1994. He further submits that any amount of evidence without supporting pleadings is of no use. Best evidence is the document itself. As the said document itself is absent which is the base for the claim of the plaintiff. The trial Court rightly dismissed the suit of the plaintiff as he has failed to prove his case. 72
62. In support of his argument, learned Senior Counsel relied on the judgment of Hon'ble Apex Court in the case of Bachhaj Nahar Vs. Nilima Mandal and another10 and stressed on para Nos.11 to 17 and the judgment in the case of Nandkishore Lalbhai Mehta Vs New Era Fabrics Private Limited and Others11 and stressed on para Nos.20 and 39 to contend that the plaintiff has examined P.W.1 without amending para No.5 of the plaint and urged that no evidence can be led without there being specific pleadings/supporting pleadings. The learned Senior Counsel also relied on the judgment of the Hon'ble Apex Court in the case of Bai Hira Devi and Others Vs. Official Assignee of Bombay12 and stressed on para Nos.4 and 5 to contend that the document is the best evidence of itself. With this, learned Senior Counsel supports the 10 (2008) 17 SCC 491 11 (2015) 9 SCC 755 12 1958 SCC Online SC 16 73 judgment passed by the trial Court stating that the judgment is well reasoned judgment and does not call for any interference at the hands of this Court and sought to dismiss this appeal.
Reply by Sri Ashok Haranahalli, learned Senior Counsel for the appellant:
63. Sri Ashok Haranahalli for the contentions of both the learned counsel for defendant Nos.1 to 3 and Senior Counsel for defendant Nos.16 to 18 on the point of insufficiency stamp duty has submitted that the contention raised by the counsel for the defendants stated supra has no legs to stand in view of pre-amendment position of Stamp Act. The amendment to provisions of the Stamp Act was brought in the year 1995 w.e.f. 01.04.1995. The agreement in the case on hand is dated 05.05.1994. As such, the amended provision in terms of Article 5(e)(i) of the Stamp Act are not applicable to the 74 present case on hand. In support of his contention, he has relied on the judgment of Hon'ble Apex Court in the case of T.Mohan Vs. Kannammal and Another13 and the order of the learned Single Judge in the case of Datta Narayan Airache V/s Dattatraya Ganesh Khatavkar and others14, wherein the learned Single Judge referring the judgment of the Hon'ble Supreme Court in T.Mohan supra as held that the post amendment provision has no application to the agreement which has entered into pre-amendment in view of settled position of law. The learned Senior Counsel would contend that the agreement being dated 05.05.1994, the subsequent amendment has no relevance and applicable. As such, the contentions of learned counsel appearing for the defendants stated supra required to be rejected.
13
(2002) 10 SCC 82 14 W.P.No.105184/2022 75
64. In reply to the arguments of learned Senior Counsel for the defendants stated supra, learned Senior Counsel reiterated his submissions and to contend that though the original agreement to sale is lost and not found, but in view of reference of the said document and in the teeth of admission by the defendant No.1 regarding payment of Rs.40 lakhs under various cheques and in the absence of any pleading regarding the transaction under which the defendant No.1 has received the amount and in the presence of the subsequent documents wherein the plaintiff having been shown as developer and consenting party and also provision for making the payment for the development clearly shows that there is an agreement in between defendant dated 05.05.1994 and payment in terms of admission by the defendant No.1 in his evidence as well as pleadings, especially para No.6 of written statement regarding 76 Rs.40 lakhs and rest of Rs.40 lakhs paid in cash being proved under Ex.P.51(a), the trial Court failed to consider this aspect of the matter and erroneously dismissed the suit as the plaintiff has not proved agreement to sale.
65. The learned Senior Counsel relied on the judgment of Hon'ble Apex Court in the case of Gian Chand and Brothers and Another Vs. Rattan Lal Alias Rattan Singh15 and stressed on para No.28 to contend that in terms of Section 34 of the Evidence Act when the books of account maintained during the normal business transaction to prove the payments, the trial Court has failed to consider the same and in the presence of evidence of P.W.4 that the payments made in cash in terms of the lecturer maintained amounting to Rs.45 lakhs, the trial Court failed to take into consideration regarding the payment. As such, 15 (2013) 2 SCC 606 77 committed a serious error. He has further relying on the judgment of Hon'ble Apex Court in Ganpat supra submitted that the secondary evidence can be taken into consideration once the foundational facts leading to the secondary evidence is laid either in the plaint or in the evidence can be considered even in the absence of application to that effect.
66. Here in the case on hand, an application is also filed stating reasons for non-production of primary evidence. It is not the case that the said document is deliberately introduced by way of secondary evidence, the entire case rests on the agreement as the agreement is in respect of immovable property, the substantive rights of plaintiff will be lost if the secondary evidence is not permitted. The plaintiff has proved by leading evidence of P.W.8, the reason for production of secondary evidence as the primary evidence was lost in transit so also by 78 filing application and taking contention in the pleading especially at para No.5 of the plaint that the original was lying with his banker and subsequent application seeking for production stating the reasons for non- production of the primary evidence.
67. The learned Senior Counsel reiterating his submissions earlier that showing the plaintiff as consenting party or developer in the subsequent agreement to sale entered into between the defendant and others was not at all necessary if the defendant No.1 had not entered into any agreement as contended by him. The defendant has not explained everying why the plaintiff was made as a confirming party and developer in respect of the agreements which they have entered into with others. This clearly shows that there is an agreement. The trial Court ought to have considered these aspects of the matter. However, erred and failed to apply its judicious mind 79 to the marathon evidence both oral as well as documentary produced by the plaintiff and proceeded to dismiss the suit on hyper technicality, which amounts to miscarriage of justice and accordingly sought to set aside the judgment and allow the appeal.
68. Having heard the learned Senior Counsels for the parties, perused the entire appeal papers as well as trial Court records, the points that would arises for our consideration are:
1. Whether the trial Court is justified in answering issue Nos.1 and 2 against the plaintiff and on the basis of answer to issue Nos.1 and 2, answered all the issues against the plaintiffs and proceeded to dismiss the suit, if the answer is otherwise, whether any interference is required at the hands of this Court?80
2. Whether the agreement to sale deed dated 05.05.1994 said to have been executed by defendant in favour of the plaintiff written on a stamp paper of Rs.10/- is hit by Section 34 of the Karnataka Stamp Act, 1957 and inadmissible in evidence?
3. Whether the plaintiff/appellant has made out a ground to allow the application filed under Order 41 Rule 27 r/w Section 151 of CPC for production of additional evidence?
69. Our answer to the above points for consideration are as under:
Point No.1: In the Negative
Point No.2: In the Negative
Point No.3: In Negative for the
following:
81
REASONS
70. Before adverting to the other points for consideration, it is apt to answer point No.2 i.e., raised on inadmissibility of the document.
71. Point No.2: The defendants during the course of argument, raised a legal point on inadmissibility of document i.e. alleged agreement to sell dated 05.05.1994 on the premise that it was even according to the plaintiff written on a stamp paper of value of Rs.10/-. As the possession said to have been transferred is shown in the said agreement, the same amounts to as a conveyance and in terms of Article 5(1)(e) of the Stamp Act 1957, the agreement ought to have been written on proper stamp paper, since the original is as per the plaintiff is lost even the copy of the agreement cannot be impounded and validated. 82
72. In reply to the argument of learned counsel for the defendants, learned Senior counsel for the appellant submitted that, the amendment to Stamp Act was of the year 1995 and brought into force w.e.f. 01.04.1995, as such, the same is not applicable to the agreements executed prior to the amendment. 73. Learned counsel for defendant Nos.1 to 3 as well as learned Senior counsel for defendant Nos.16 to 18 have raised legal point on admissibility of the document. They have relied on the judgment of the Hon'ble Apex Court stated supra, to contend that a copy of the document cannot be impounded and validated as the instrument defined under the Act refers to a document, that means the original itself and not a photocopy of the document. As such, the entire suit has to go even on inadmissibility of the document on which the entire claim of the plaintiff rested.
83
74. Learned Senior counsel appearing for the plaintiff/ appellant in reply has submitted that the amendment to the Stamp Act brought in the year 1995. The agreement involved in this lis was executed on 05.05.1994. As such the amendment has no application and he has relied on the judgment of the Hon'ble Apex Court in K.T.Mohan supra. So also the order of this Court in W.P.No.105184/2022 in the case of Datta Narayan Airache case stated supra.
75. Having considered the rival contentions, after going through the provisions of Stamp Act as well as judgments stated supra, we have no hesitation to hold that the contentions raised by the counsel for defendant Nos.1 to 3 and 16 to 18 has no legs to stand and to be rejected, as amendment brought to the Stamp Act was in the year 1995 and is prospective in nature, as the alleged agreement to sell said to 84 have been executed on 05.05.1994, the amendment has no application. Accordingly, we answer the point No.2 for consideration in negative and in favour of plaintiff/appellant and against the defendant No.1 to 3 and 16 to 18.
76. Point No.1: The entire lis between the parties revolves around the agreement to sell dated 05.05.1994, as the rights claimed by the plaintiff is flowing under the said agreement. The plaintiff contends that the agreement was executed for the entire land in Sy.No.5/1 of Challaghatta village and the consideration was fixed at Rs.85,00,000/-, a sum of Rs.10,00,000/- was paid through a cheque on 05.05.1994. Subsequently, the balance sale consideration of Rs.75,00,000/- paid by means of four cheques of Rs.7,50,000/- each, covering Rs.30,00,000/- and a sum of Rs.45,00,000/- by way of cash. Whereas the defendant Nos.1 to 3 and 16 to 85 18 denied the entire claim of the plaintiff, specifically denying the alleged agreement to sell dated 05.05.1994 and taken up specific contention that a recital in the subsequent agreement would not establish the agreement as existing so also the terms of the said agreement. Further that, in the absence of the primary evidence and in the absence of foundational facts to produce the copy of the same as secondary evidence, the document purported to be produced cannot be admitted in evidence and terms in the said document cannot be inferred. As the plaintiff failed to prove the existence of agreement itself by cogent evidence, the suit has to fall on the said ground and accordingly the trial Court dismissed the suit, which does not call for any interference.
77. Before adverting on the document in view of the rival contention, it is apt for this Court to refer certain provisions of Indian Evidence Act, having 86 bearing on the lis involved in the case. Chapter 5 of Indian Evidence Act, 1872 speaks about documentary evidence. Section 61 speaks about proof of contents of documents, whereas Section 62 and 63 about primary evidence and secondary evidence. Section 64 and 65, regarding proof of documents by primary evidence and cases in which secondary evidence relating to document may be given. For easy reference, we hereby reproduce Section 61 to 65 which reads as under:
CHAPTER V OF DOCUMENTARY EVIDENCE
61. Proof of contents of documents.- The contents of documents may be proved either by primary or by secondary evidence.
62. Primary evidence.- Primary evidence means the document itself produced for the inspection of the Court.
Explanation 1.- Where a document is executed in several parts, each part is primary evidence of the document.87
Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.
Explanation 2.- Where a number of documents are all made by one uniform
process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original.
Illustration A person is shown to have been in possession of a number of placards, all printed at one time from one original. Any one of the placards is primary evidence of the contents of any other, but no one of them is primary evidence of the contents of the original.
63. Secondary evidence.- Secondary evidence means and includes-
(1) certified copies given under the
provisions hereinafter contained;
(2) copies made from the original by
mechanical processes which in
themselves insure the accuracy of the copy, and copies compared with such copies;
88
(3) copies made from or compared with
the original;
(4) counterparts of documents as against
the parties who did not execute them;
(5) oral accounts of the contents of a
document given by some person who
has himself seen it.
Illustration
(a) A photograph of an original is secondary
evidence of its contents, though the two have not been compared, if it is proved that the thing photographed as the original.
(b) A copy compared with a copy of a letter made by a copy made by the copying machine was made from the original.
(c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence; but the copy not so compared is not secondary evidence of the original, although the copy from which it is was transcribed was compared with the original.
(d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine-copy of the original, is secondary evidence of the original.
64. proof of documents by primary evidence.- Documents must be proved by primary evidence except in the cases hereinafter mentioned.
89
65. Cases in which secondary evidence relating to documents may be given.-Secondary evidence may be given of the existence, condition or contents of a document in the following cases:-
(a) when the original is shown or appears to be in the possession or power - of the person against whom the document is sought to be proved, of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it:
(b) 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;
(c) when the original has been destroyed or lost, or when the party offering evidence of its content cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be easily movable;90
(e) When the original is a public document within the meaning of section 74;
(f) When the original is a document of which a certified copy is permitted by this Act, or by any other law in force in [India] to be given in evidence;
(g) When the originals consist of
numerous accounts or other
documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.
In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible.
In case (b), the written admission is
admissible.
In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.
In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.
78. Learned counsel appearing for the plaintiff/appellant relied on the judgment of Hon'ble 91 Apex Court in the case of Vijay Vs. Union of India and Others stated supra on secondary evidence. So also the judgment of the Hon'ble Apex Court in the case of Ganpat stated supra.
79. As has been held by the Hon'ble Apex Court in the judgments stated supra, as per Section 65(c) a secondary evidence of primary evidence can be produced and taken into consideration provided when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time. It is under those circumstances, the secondary evidence of the contents of the document is admissible. As could be seen from the words used in Section 65(c), it does not require filing of an application before a secondary evidence is lead. However, at the same time it may not preclude a person from filing an application. A 92 party to lis can avail to file an application stating the reasons for non production of primary evidence, however it is for the trial Court to consider. For a party to produce secondary evidence in terms of Section 65(c), has to lay foundational facts, to the secondary evidence either in the plaint or in the evidence. If a party to the lis, lays a proper foundational facts for production of secondary evidence, the Court is duty bound under law to consider the same and secondary evidence cannot be ousted from consideration, whether any application is filed to produce the secondary evidence or not. What accrues more importance is laying of foundational facts either by way of pleadings or evidence as contemplated under Section 65(c).
80. No doubt as per the provisions stated supra i.e. Section 65 of the Indian Evidence Act, expressly permits production of secondary evidence with regard 93 to existence, condition or contents of document where the original has been destroyed or lost. But the same differs from case to case on the facts of each case on the basis of the foundational facts required to be lead for the production of secondary evidence.
81. It is settled proposition of law that best evidence is the document itself i.e. the original. A party who approach the Court either as plaintiff or in defense as a defendant, if he asserts on any document to base his rights, he shall make all endeavour to adduce primary evidence of the contents of the document to substantiate his claim and secondary evidence be permitted only under exceptional cases. Such exceptions are designed and placed in the Evidence Act to provide relief to a party who is genuinely unable to produce the original for no fault attributable to him. Provided, he has to place sufficient foundational evidence to show that the 94 photocopy which a party relies to produce to base his claim is true copy of the original as a substitute of the original document / primary evidence. With this legal proposition, the next course before us is, whether the plaintiff has made out a case to produce secondary evidence.
82. The trial Court in paragraph No.32 made an observation to the effect that the documents produced and marked as exhibits stated in the paragraph that, at the best would show that the plaintiff and first defendant had entered into an agreement dated 05.05.1994 in respect of Sy.No.5/1, but the said document cannot become the substitute to the alleged agreement of sale dated 05.05.1994, so that the plaintiff can prove the execution and terms of the said document in the absence of the original document. 95
83. The suit was filed on 10.07.2003. The intimation, stated by the plaintiff in his application IA No.15, received between 05.12.2004 to 16.02.2005, date of the application. These aspects ought to have been included in the plaint by way of amendment to substantiate his claim. As per the complaint at Ex.P53 and the evidence of PW8, the said witness had lost the suitcase during transit, whereas in the letter the suitcase was stated to be stolen, both are contradictory to one another. The said application came to be dismissed which was called in question before this Court in writ petition, also came to be dismissed with liberty to take same as a ground in appeal in the event, the result of the suit goes against the plaintiff. However, the plaintiff filed another application IA No.18, seeking direction to defendant No.1 to produce the agreement to sell as they were prepared in two set, one set was given to the plaintiff 96 and another set was retained by defendant No.1. To the said application, the defendant No.1 has filed his objection specifically denying the existence of document itself so also preparing two sets and giving one set to the defendant No.1. The trial Court taking note of the contentions of defendant No.1, dismissed the application on the premise that in the presence of specific denial by the defendant No.1, the question of issuing direction to the defendant No.1 to produce the document does not arise. Subsequently, the plaintiff filed another application bearing IA No.22 on the same line as that of IA No.15 seeking permission to mark the photocopy, subsequent to the examination of PW8, this time stating that the document was lost during the course of transit from Bangalore to Chennai. The defendant No.1 filed objections taking a specific contention of res judicata as the earlier application filed on the same set of facts and for the 97 same relief and for the same document ended in dismissal and confirmed before this Court in the writ petition. The said application came to be dismissed by order of the trial Court dated 29.09.2005 which has attained finality. As such the plaintiff even cannot avail the liberty granted by this Court in the writ petition stated supra, as per the contention of learned counsel for the contesting defendants.
84. As per the plaintiff in paragraph No.5, the original agreement to sell dated 05.05.1994 was deposited with his banker. However, his banker lost it during transit on 30.07.2002. On 15.12.2004, the banker said to have written a letter to the plaintiff regarding the fact that he had lost the original agreement to sell deposited with him by the plaintiff. As per the application IA no.15, the plaintiff has contended that the document stated supra deposited with the banker / PW8 was lost during transit when 98 the briefcase containing the other documents including the original agreement of sale dated 05.05.1994 was stolen. However, in application IA No.18 filed seeking a direction to defendant No.1 to produce the document, altogether a different version has been stated by the plaintiff. This time plaintiff has contended that the agreement of sale dated 05.05.1994 was prepared in two sets one is given to the plaintiff which was deposited with the banker and another was retained with the defendant No.1. There is nothing in the pleadings to suggest, except the contention in the affidavit in support of the application, regarding preparing of the said document in two sets. If in reality there are two sets prepared, the appellant/plaintiff ought to have stated regarding the same in the plaint as he has clearly stated regarding the depositing of agreement to sell with his banker. It cannot be lost sight that the plaintiff has 99 given a reply to the public notice issued by the defendant No.1 through his counsel in respect of sale of the property to the prospective buyers, whereby calling objections from the public at large who have any interest in the property. To the reply notice, the counsel for the defendant No.1 issued a reply seeking for documents stated in the reply notice by the plaintiff. Subsequently, the plaintiff has issued a legal notice demanding the defendant No.1 to execute the sale deed and defendant Nos.2 and 3 for cooperating for execution of sale deed. However, nothing has been stated in respect of preparing of two sets of agreement of sale, as has been contended in application i.e. IA No.18 before the trial Court seeking a direction to the defendant No.1 to produce the document. The reply by the defendant No.1 to the notice of the plaintiff and the legal notice are prior to institution of the suit. If really there were two sets of 100 agreement to sell dated 05.05.1994, prepared as contended there is no reason for the plaintiff to suppress the said fact in the plaint rather to state the same either in the legal notice or in the plaint. There is one more reason added, that is in the earlier application i.e. IA No.15, the plaintiff has stated in the affidavit in support of the application that subsequent to filing of the suit, the plaintiff requested his banker to return the agreement of sale, to produce before the Court. To which the banker said to have written a letter dated 15.12.2004 informing him, that he has lost the document. If that be so, the plaintiff immediately, ought to have, at that point of time, filed application seeking the defendant No.1 to produce the documents stating that there were two sets of agreement prepared. Rather the plaintiff has filed application under Order 18 Rule 4(1) R/w Section 151 of CPC and Section 63 and 65(c) of Indian Evidence 101 Act, 1872, seeking permission to mark photocopy of the agreement to sell dated 05.05.1994.
85. The plaintiff has not produced any evidence to show that the PW8 on 28.09.2002 came to Bangalore along with the original 'agreement to sell'on the request of the plaintiff and on the way back lost during transit. Ex.P53 the complaint given by PW8 contains minute details regarding the loss of documents contained in the suitcase. However, there is nothing to suggest that the PW8 has stated anything regarding the original agreement to sell much less any other document which are purported to be given by his client towards security to the loan. This clearly shows that the entire case of the plaintiff is made up one in order to overcome non production of original agreement to sell and amounts to plugging the holes. The dual stand taken by the plaintiff falsifies the claim made by him regarding loss of 102 primary evidence and laying foundation for production of secondary evidence. The PW8 is not specific whether he has traveled to Bangalore along with document or not. He has pleaded his ignorance. In the examination-in-chief, the said witness has stated that the plaintiff has deposited the original agreement to sell along with vouchers said to have been issued by defendant No.1. However in the cross examination has given admissions contrary to the statement in examination-in-chief.
86. There is nothing on record to show as to the amount of the loan or financial assistance in fact taken by the plaintiff by depositing the agreement to sell as contended by the plaintiff. The PW8 is not specific whether the plaintiff has repaid the amount or not. In the cross examination PW8 has stated that if the document is not with the banker that means, the amount of loan has been repaid. But he is not specific 103 whether the document is lost or returned back to the plaintiff. The stand of the plaintiff at one breadth that the briefcase / suitcase was stolen during transit and at another it was lost during transit. In these circumstances, the evidence lead by PW8 would not come to the aid of the plaintiff. So far as the evidence of other witnesses i.e. the witnesses to the agreement to sell dated 05.05.1994 cannot be considered as to the execution and terms of the document in the absence or production of document.
87. That apart, there is no foundational evidence lead by the plaintiff to show that the photocopy sought to be produced before the trial Court as well as before this Court in the application filed for additional evidence, in fact the copy of the original document. What Section 65(c) contemplates is, a party can produce secondary evidence when the original has been destroyed or lost, or when the party 104 offering evidence of its contents cannot, for any other reason not arising from his own default or negligent, produce it in reasonable time.
88. For compliance of the ingredients of the said provision, the necessary foundational evidence is absolute and there can be no deviation, as the secondary evidence is an exception to the primary evidence for the proof of execution and terms of the documents. As per the Evidence Act the contents of the document must be proved by primary evidence. An exception provided under Section 65 can be availed by a party to the lis only when the conditions created under the provision are discharged i.e. a foundation for non production of the same.
89. It is trite that as per Section 65 of Indian Evidence Act, secondary evidence may be given, of the existence, condition or the contents of the 105 document, when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, despite, notice as contemplated under Section 66 of the Indian Evidence Act, issued to the person legally bound to produce it and he does not produce it. For secondary evidence to be admitted, foundational evidence facts have to be laid put frothing the reasons as to why the original document could not be produced. Where original documents are not produced without a plausible reason and factual foundation for laying secondary evidence not established, it is impermissible for the Court to allow the party to adduce the secondary evidence. Mere admission as has been contended by the learned Senior counsel appearing for plaintiff/appellant in the written statement by defendant No.1 regarding receipt 106 of Rs.40,00,000/ through different cheque and recital regarding the said document, in the subsequent document would not come to the aid of plaintiff to produce the photocopy of the document alleged, to prove the execution as well as terms of the said document. It is settled proposition of law that either admission in evidence or even marking as exhibit of a document does not prove automatically, proof of the document unless the same has been proved in the manner known to law.
90. The trial Court having considered the entire case put forth by the plaintiff and going through the entire materials, pleadings, evidence oral as well documentary has come to the logical conclusion that the plaintiff has failed to prove the execution and terms of the document on which the entire claim of the plaintiff is based and rightly answered the issue Nos.1 and 2 against plaintiff and thereafter, 107 proceeded to answer all other issues against the plaintiff.
91. In a suit for specific performance, due execution of the agreement to sell and terms of the said agreement for the Provision of Specific Relief Act to apply required to be proved in the manner known to law. In the absence of due execution of the document and its terms, no relief of specific performance as contemplated under the Provisions of Specific Relief Act could be granted by the Court.
92. It is trite that the plaintiff has to prove his case on his own grounds and not on the weakness of the defendant. The plaintiff having failed to produce the original document itself and having failed to lay the factual foundation by pleadings/evidence cannot be permitted to contend, merely on admission of receipt of some amount by the defendant and recital 108 in the subsequent document as proof of due execution of the document and terms thereof.
93. The plaintiff having failed either by the pleadings and evidence to lay factual foundation for non-production of primary evidence and production of secondary evidence in substitution of it, not entitled under Section-65(c) of Indian Evidence Act to produce secondary evidence, accordingly point No.1 answered in negative and against the plaintiff/appellant.
94. Point No.3: The contention of the appellant in the application for additional evidence is that, the trial Court has refused to admit the evidence which ought to have been admitted, has no legs to stand for short of compliance, of mandate contend under Section 65 of Indian Evidence Act. The trial Court in the absence of proof, that the document sought to be produced as true copy of the original 109 rightly rejected marking of the photocopy of the alleged agreement to sell as secondary evidence. As such, the application filed seeking now to produce the same document, for the failure on the part of the plaintiff to lay factual foundational for production of secondary evidence, now cannot be permitted to produce taking recourse to Rule 27(1)(a) of Order 41 of CPC, the said document as additional evidence.
95. The production of secondary evidence is an exception to a general rule, as per Section 64 of the Indian Evidence Act, the documents must be proved by a primary evidence. In the case on hand, the plaintiff has failed to establish the execution as well as terms of document and passing of the consideration. The judgments referred by the learned Senior counsel in support of his contention are factually distinguishable when compare to the facts of the case on hand, as such are not helpful to the 110 plaintiff/appellant. The judgments referred by the learned Senior counsel for defendant Nos.16 to 18 on principle applicable to the case on hand regarding proof of document as the best evidence is the document itself. In the absence of any cogent evidence regarding the existence of primary evidence and it being lost or destroyed so also in the absence of any proof as to the document purported to be produced is the true copy of the original, the secondary evidence cannot be permitted to be produced to base the claim of the party to the lis. Accordingly, the points for consideration regarding non permission to produce the document as well as the production of additional evidence are answered in negative and against the appellant.
96. For the foregoing reasons, we find no infirmity in the judgment passed by the trial Court, 111 which calls for any interference at the hands of this Court. Accordingly, we pass the following:
ORDER i The appeal calling in question the judgment and decree dated 31.10.2009 passed by the XI Additional City Civil Judge (C.C.C.H.No.8), Bangalore City in O.S.No.4858/2003, is hereby dismissed. ii The application filed under Order-41, Rule-27 of CPC is also dismissed as devoid of merits.
iii In the facts and circumstances of the case, no order as to costs.
Sd/-
(S.G.PANDIT) JUDGE Sd/-
(T.M.NADAF) JUDGE TMP/BL/SMP