Karnataka High Court
Khajbi And Ors vs Hussainbee And Ors on 29 July, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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WP No. 201406 of 2024
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 201406 OF 2024 (GM-CPC)
BETWEEN:
1. KHAJBI W/O SHAMEEDSAB,
AGED ABOUT 52 YEARS,
OCC: AGRICULTURE,
2. JEELANI SAB @ JEELANI PASHA
S/O SHAMEEDSAB,
AGED ABOUT 40 YEARS,
OCC: AGRICULTURE,
3. MAHIBOOB SAB
S/O SHAMEEDSAB,
AGED ABOUT 36 YEARS,
OCC: AGRICULTURE,
Digitally signed
by
BASALINGAPPA
SHIVARAJ 4. HUSSAIN PEER
DHUTTARGAON
Location: HIGH S/O SHAMEEDSAB,
COURT OF
KARNATAKA AGED ABOUT 32 YEARS,
OCC: AGRICULTURE,
ALL ARE R/O. ROUDAKUNDA VILLAGE,
TQ: SINDHANUR,
DIST: RAICHUR-584 128.
...PETITIONERS
(BY SRI ARUNKUMAR AMARGUNDAPPA, ADVOCATE)
AND:
1. HUSSAINBEE
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WP No. 201406 of 2024
D/O BASHUSAB MAKANDAR,
W/O MAGADU SAB,
AGE: MAJOR,
OCC: HOUSEHOLD,
2. SHAFIA BEGUM
W/O SATTA PASHA,
AGED ABOUT 32 YEARS,
OCC: HOUSEHOLD AND AGRICULTURE,
3. CHANDAMMA
W/O MAHAMMEDSAB,
AGED ABOUT 73 YEARS,
OCC: HOUSEHOLD AND AGRICULTURE,
4. NABEMMA
W/O MALAKASAB,
AGED ABOUT 41 YEARS,
OCC: AGRICULTURE,
5. AMIN NAYAK
S/O MADARSAB,
AGED ABOUT 53 YEARS,
OCC: AGRICULTURE,
ALL ARE R/O. ROUDAKUNDA VILLAGE,
TALUKA SINDHANUR,
DISTRICT RAICHUR-584 128.
...RESPONDENTS
(NOTICE TO RESPONDENTS IS DISPENSED WITH VIDE ORDER
DATED 29.07.2024)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO A) A
WRIT ORDER OR DIRECTION IN THE NATURE OF CERTIORARI
QUASHING THE IMPUGNED ORDER DATED 15.12.2023 IN O.S
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WP No. 201406 of 2024
NO. 230/2014 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC
SINDHANUR AS PER ANNEXURE-A, CONSEQUENTLY ALLOW
THE APPLICATION IN IA NO.22 FILED U/SEC. 151 OF CPC BY
THE PLAINTIFFS AS PER ANNEXURE E TO THE WRIT PETITION.,
IN THE INTEREST OF JUSTICE AND EQUITY. B) SUCH FURTHER
ORDER/S OTHER RELIEFS BE GRANTED TO THE PETITIONER
TO WHICH THE PETITIONER WOULD BE FOUND ENTITLED TO
ON THE FACTS AND CIRCUMSTANCES OF THE CASE.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
ORAL ORDER
(PER: HON'BLE MR. JUSTICE SURAJ GOVINDARAJ)
1. The petitioners who were the plaintiffs in OS No.
230/2014 are before this court seeking for the
following reliefs:
a) A writ order or direction in the nature of
certiorari quashing the impugned order dated
15.12.2023 in O.S No. 230/2014 passed by the
Senior Civil Judge and JMFC Sindhanur as per
Annexure-A, consequently allow the application in
IA No.22 filed u/sec. 151 of CPC by the plaintiffs
as per Annexure-E to the writ petition., in the
interest of justice and equity.
b) Such further order/s other reliefs be granted to
the petitioner to which the petitioner would be
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found entitled to on the facts and circumstances of
the case.
2. Notice to respondent is dispensed with in view of the
proposed order to be passed.
3. A suit in OS No. 230/2014 had been filed seeking for
declaration that the plaintiffs are the absolute owners
of the suit properties and for injunction restraining
defendants from interfering with certain portions of
property, as well as seeking possession of certain
other properties. In the said suit, the defendants
during the course of their examination in chief had
got marked Ex.D-4, Nikhanama, which was in Urdu
language. The petitioner filed an application under
Section 151 of the Code of Civil Procedure for
demarking the document at Ex.D-4 on the ground
that the said document is not certified and it does
not comply with the provisions of the civil rules of
practice and the same could not be marked in
evidence. The said application came to be rejected
by the impugned order dated the 15.12.2023. The
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petitioners are before this Court challenging the
same.
4. The application under section 151 of the Code of Civil
Procedure, which had been filed by the
petitioners/plaintiffs was apparently for demarking a
document which is already marked in evidence as
Ex.D-4 by the defendant during the examination of
DW-1.
5. Sri.Arunkumar Amargundappa, learned counsel for
the petitioner would submit that in terms of sub rule
3 of order 13 of the Code of Civil Procedure, there is
a duty cast on the Civil Court to either permit the
marking or reject the marking of a document and
this, he submits has not been discharged by the Trial
Court while marking Ex.D-4 and as such the
application under section 151 of CPC was filed, since
the document which had been marked was not a
certified copy, but was an ordinary copy.
6. On inquiry as to whether at the time of marking any
objections were raised, he fairly submits that no such
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objections were raised, but he submits that the
plaintiff did not expect an ordinary copy to be
marked in evidence.
7. Heard Sri.Arunkumar Amargundappa, learned
counsel for the petitioners.
8. Having perused the document, a translated copy of
the document which has been produced as also the
photocopy at Ex.D-4, it is clearly seen that it is only
a copy and not a certified copy. The veracity of the
document and authenticity of the document would
always be subject to trial.
9. In the present case, the contention of Sri.Arunkumar
Amargundappa, as regards the duty cast on the Trial
Court cannot be accepted, inasmuch as there was no
objection which had been raised by the plaintiffs at
the time of marking of the document. If at all any
such objection had been raised, then the Court was
duty bound to consider the objection, pass an order
thereon. No objection having been raised, the
document has proceeded to be marked. In the event
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of objection being raised and the said objection being
rejected, the petitioner would have adequate remedy
of challenging the said order. When no objections
have been raised, no order was required to be
passed and the document has been marked in
evidence. The question of any duty being cast on the
Trial Court or an opportunity being available to the
petitioner to challenge the same does not arise.
Hence, no grounds are made out in the present
petition on that account.
10. The second submission made by Sri.Arunkumar
Amargundappa, learned counsel for the petitioners,
is that the document now marked would be taken
into consideration by the Trial Court, which may
cause injustice to the petitioner.
11. Such an apprehension on the part of the petitioner is
ill founded. Inasmuch as mere marking of a
document would not make the document acceptable
in the eye of law. The veracity or otherwise of the
document and the implication of the document would
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have to be considered by the Court during the course
of passing of the judgment, independently of the
marking. The proof of establishing the document
would be on the person expounding the said
document, as such this also does not provide a
ground for the petitioner to sustain the present
petition.
12. In that view of the matter, the petition is dismissed
at the stage of admission, in terms of the above
observation.
Sd/-
(SURAJ GOVINDARAJ)
JUDGE
NJ
