Karnataka High Court

Sri. Supreeth. K. S vs Smt. S. Pramila @ M. N. Pramila Nesargi on 21 February, 2025

Author: H T Narendra Prasad

Bench: H T Narendra Prasad

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                                                      WP No. 4867 of 2025




                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                         DATED THIS THE 21ST DAY OF FEBRUARY, 2025

                                          BEFORE
                    THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                         WRIT PETITION NO. 4867 OF 2025 (GM-CPC)


                   BETWEEN:

                   1.    SRI. SUPREETH. K. S.
                         S/O LATE. K.S UDAYASHANKAR
                         AGED ABOUT 36 YEARS
                         R/AT, NO. 48 AND 49
                         4TH MAIN ROAD, CHAMARAJPET
                         BANGALORE- 560018.

                   2.    DR. SEEMA.K.S.,
                         D/O LATE K.S. UDAYASHANKAR
                         AGED ABOUT 48 YEARS
                         R/AT, NO. 56, 4TH MAIN ROAD
Digitally signed by      CHAMARAJPET, BANGALORE- 560018.
HEMALATHA A
Location: HIGH      3.   SMT. SUNANDA. K.S
COURT OF
KARNATAKA                W/O LATE K.S.UDAYASHANKAR
                         AGED ABOUT 76 YEARS
                         R/AT, NO. 48 AND 49
                         4TH MAIN ROAD, CHAMARAJPET
                         BANGALORE- 560018.
                                                           ...PETITIONERS
                   (BY SRI. SHARATH S GOWDA.,ADVOCATE)
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                                  WP No. 4867 of 2025




AND:

1.   SMT. S. PRAMILA
     @ M. N. PRAMILA NESARGI
     D/O LATE, K.C.SADASHIVAIAH
     AGED ABOUT 83 YEARS
     R/AT. NO. 844-A, 100 FEET ROAD
     INDIRANAGAR, BANGALORE-560 038.

2.   SMT NAVARATHNA
     D/O LATE K C SADASHIVAIAH
     SINCE DEAD REP BY HER LRS
     SRI MANJU
     S/O LATE MAHABALAPPA
     H/O T. NAVARATHNA
     AGED ABOUT 80 YEARS
     R/AT NO. VILLA 106
     SOBHA EMERALD, PHASE-2
     BEHIND JAKKUR FLYING CLUB
     JAKKUR, BENGALURU-560 064.

3.   MRS.SIRI,
     D/O MANJU
     D/O LATE SMT.NAVARATHNA
     AGED ABOUT 40 YEARS
     R/AT NO. VILLA 106
     SOBHA EMERALD, PHASE-2
     BEHIND JAKKUR FLYING CLUB
     JAKKUR, BENGALURU-56 064.

4.   SRI. K.S.JAYACHANDRA,
     S/O LATE. K.C.SADASHIVAIAH
     AGED ABOUT 77 YEARS
     R/AT NO. 49, 4TH MAIN ROAD
     CHAMARAJPET, BANGALORE-560018.

5.   SRI. K.S.SUKUMAR
     S/O LATE. K.C.SADASHIVAIAH
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                                 WP No. 4867 of 2025




     AGED ABOUT 73 YEARS
     AT PRESENT R/A
     M/S SUKUMAR ENTERPRISES
     NO 100, 'E' ALLENDALE AVE
     ALLENDALE, NJ 07401-2017.

6.   DR. SARVAMANGALA
     D/O LATE. K.C.SADASHIVAIAH
     AGED ABOUT 71 YEARS
     R/ AT NO. 284, 17TH CROSS
     7TH MAIN, UPPER PALACE ORCHARD
     BANGALORE- 560078.

7.  SRI.K.S.SHIVANANDA
    S/O LATE. K.C.SADASHIVAIAH
    AGED ABOUT 65 YEARS
    RESIDING AT NO. 91, 6TH MAIN ROAD
    4TH BLOCK, 3RD STAGE
    BASAVESHWARA NAGAR
    BANGALORE- 560079.
                                     ...RESPONDENTS
(BY SRI. ANAND MANDAGI SENIOR COUNSEL FOR
SRI. SHASHIDHAR BELAGUMBA.,ADVOCATE)
     THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO QUASH THE ORDER DATED 03.09.2024 PASSED IN O.S
NO.5976/2011 ON IA NO. 2/24 BY THE COURT OF LVII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE CCH-58
VIDE ANNEXURE-A AND ETC.

    THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, ORDER WAS MADE THEREIN AS
UNDER:


CORAM: HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
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                                            WP No. 4867 of 2025




                        ORAL ORDER

1. This writ petition under Article 227 of the

Constitution of India is filed by the petitioners-plaintiff

Nos.1 to 3 challenging the orders dated 03.09.2024

passed on I.A.No.2/2024 and dated 04.02.2025

passed on I.A.No.3/2024 in O.S.No.5976/2011,

whereby I.A.No.2/2024 filed by defendant No.1 under

Sections 58 and 60 of the Bharatiya Sakshya

Adhiniyam, 2023 (hereinafter referred to as 'BSA,

2023') has been allowed and I.A.No.3/2024 filed by

the plaintiffs under Section 114 read with Order XLVII

Rule 1 of CPC has been dismissed.

2. The plaintiffs filed the suit for partition and

separate possession. After service of summons,

defendant No.1 appeared through counsel and filed

the written statement. On the basis of the pleadings of

the parties, the issues have been framed. After

completion of evidence of plaintiffs and when the

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matter was posted for defendants' evidence,

defendant No.1 filed an application seeking permission

to mark the xerox copy of the rectification of affidavit

filed before the State Election Commission as

Exs.D.225, 226 and 227. The plaintiffs objected,

stating that the xerox copies cannot be allowed to be

marked. After hearing the parties, the trial Court by

order dated 03.09.2024 allowed the application filed

by defendant No.1. Being aggrieved by the order

dated 03.09.2024, the plaintiffs filed I.A.No.3/2024

seeking for review of the order dated 03.09.2024

passed on I.A.No.2/2024. The trial Court by order

dated 04.02.2025 dismissed the application filed by

the plaintiffs. Being aggrieved by the orders dated

03.09.2024 and 04.02.2025 passed by the trial Court

on I.A.No.2/2024 and I.A.No.3/2024, respectively, the

petitioners/plaintiffs are before this Court in this writ

petition.

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3. Learned counsel appearing for the petitioners has

contended that the documents, which are sought to be

marked by defendant No.1 is xerox copy of affidavit

filed before the Election Commission. Under BSA,

2023, xerox copy cannot be permitted to be marked

as secondary evidence. He further contended that the

Election Commissioner has been examined as CW-2.

In his evidence, he has deposed that these documents

are not available in the original records. Under these

circumstances, the xerox copy cannot be permitted to

be marked as secondary evidence. In support of his

contentions, he has relied upon the judgment of Apex

Court in the cases of J.Yashoda v. K.Shobha Rani

reported in (2007) 5 SCC 730, Ram Suresh Singh v.

Prabhat Singh Alias Chhotu Singh and Another

reported in (2009) 6 SCC 681 and Shalimar Chemical

Works Limited v. Surendra Oil and Dal Mills

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(Refineries) and Others reported in (2010) 8 SCC 423.

Hence, he sought for allowing the writ petition.

4. Learned senior counsel appearing for respondents

has contended that plaintiff No.1 examined himself as

PW-1 and got marked Ex.P121, 122, 123 and 124,

which are documents downloaded from the website of

Election Commission. On the basis of these

documents, plaintiff No.1 has objected for marking of

the affidavit filed by defendant No.1 before the

Election Commission on two grounds; (i) affidavit is

xerox copy and (ii) on the ground that the affidavit is

for seeking rectification of Ex.P121. In fact, Ex.P121

marked by PW-1 itself is a copy downloaded from the

website. Even the rectification affidavit, which was

produced by defendant No.1 is office copy which was

submitted to the Election Commission. Under Rule 94

of the Conduct of Elections Rules, 1961, if there is no

dispute in respect of the election, the Election papers

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will be destroyed after one year. Just because it was

not available with the office of Election Commission,

the defendant cannot be denied to mark the xerox

copy, that too, subject to objection. He further

contended that even by marking the xerox copy, it will

not cause prejudice to the rights of the plaintiffs and

they can raise all objections at the time of the final

argument. In support of his contentions, he relied

upon the judgment of this Court in the case of K.

Anjaneya Setty v. K.H.Rangiah Setty in CRP

No.67/1999 disposed of on 03.07.2002 following the

judgment of Apex Court in the case of Bipin shantilal

Panchal vs. State of Gujarat and Another reported in

(2001) 3 SCC 1. Hence, he sought for dismissal of the

writ petition.

5. Heard the learned counsel for the parties.

Perused the petition papers.

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6. It is not in dispute that the plaintiffs have filed

the suit for partition and separate possession in

O.S.No.5976/2011. Plaintiff No.1 has been examined

as PW-1 and got marked Exs.P121, 122, 123 and 124,

which are the documents downloaded from the

website of Election Commission. When defendant No.1

has been examined as DW-1, he wants to mark the

rectified affidavit filed before the Election Commission.

Since that is the Xerox copy, the plaintiffs have

objected the same on the ground that, without

comparing the xerox copy with the original, it cannot

be permitted to be marked. The trial Court has

permitted to mark the documents subject to the

objections. This Court in CRP No.67/1999 following the

judgment and Apex court has held as follows:

"26. The argument that if such orders are allowed to be challenged in revision and in such petitions if order of stay is granted in respect of further proceedings of the suit, it would drag on

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the proceedings endlessly and therefore the revision is held to be not maintainable on the premise that such order does not amount to "case decided", is concerned, the very object is defeated if after the final disposal of the suit, the Appellate Court were to find fault with such orders and consequently orders for remand of the matter to the Trial Court, the duration taken for disposal of such matters would be enormous. Moreover when the matters are remanded the original parties may not be alive and the very object would be frustrated. The said complaint can be remedied by not admitting the revision petitions and by ordering notice to the Counsels who are appearing in the Court below and dispose of such revision petitions expeditiously at the admission stage itself. These problems are agitating the legal fraternity for quite some time and merely because we are unable to find a practical solution it cannot be said that the revision petition should not be entertained at all. In fact the Supreme Court taking note of these problems has suggested a solution by prescribing the following procedure in a recent decision in the case of Bipin Shantilal Panchal v. State of Gujarat and Anr. MANU/SC/1529/2001: AIR

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2001 SC 1158: MANU/SC/1529/2001: (2001)3 SCC 1 ha held as under.--

"12. It is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the Court does not proceed further without passing order on such objection. But the fall out of the above practice is this: Suppose the Trial Court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the Appellate or Revisional Court, when the same question is recanvassed, could take a different view on the admissibility of that material in such cases the Appellate Court would be deprived of the benefit of that evidence, because that was not put on record by the Trial Court. In such situation the higher Court may have to send the case back to the Trial Court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices

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created by ourselves. Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or remoulded to give way for better substitutes which would help acceleration of trial proceedings.

13. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the Trial Court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the Court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. However, we make it clear that if the

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objection relates to deficiency of stamp duty of a document the Court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.

14. The above procedure, if followed, will have two advantages. First is that the time in the Trial Court, during evidence taking stage, would not be wasted on account of raising such objections and the Court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior Court, when the same objection is recanvassed and reconsidered in appeal or revision against the final judgment of the Trial Court, can determine the correctness of the view taken by the Trial Court regarding that objection, without bothering to remit the case to the Trial Court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses,

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15. We, therefore, make the above as a procedure to be followed by the Trial Courts whenever an objection is raised regarding the admissibility of any material or any item of oral evidence".

7. In the case on hand, the specific case of the

defendant No.1 is that the xerox copy of rectified

affidavit produced by defendant No.1 is the office

copy. The original has been submitted to the Election

Commission of India on 21.04.2008. CW1 in his

evidence submitted that as per Rule 94 of the Election

Conduct Rules 1961, if there is no dispute in respect

of election, the papers related to election will be

destroyed taking permission from Election

Commissioner.

8. Permitting the defendant No.1 to mark xerox

copy of rectified affidavit dated 21.04.2008, is subject

to the objection. The plaintiffs may raise all their

objections, including the admissibility of the

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document, at the time of arguments. Permitting the

document to be marked, that itself, does not mean

that the document has been admitted into evidence.

The trial Court can consider all these aspects while

passing the judgment. Therefore, permitting

defendant No.1 (DW-1) to mark the xerox copy will

not affect the plaintiffs' rights at this stage.

9. In the judgment relied upon by the learned

counsel for the petitioners in the case of "In Re: To

Issue Certain Guidelines Regarding Inadequacies and

Deficiencies in Criminal Trials v. State of Andhra

Pradesh and Ors." reported in 2021 (10) SCC 598, the

judgment of the Apex Court rendered in the case of

'Bipin Shantilal v.State of Gujarat' reported in 1998(9)

SCC 315 is not over-ruled and it is only modified. The

judgment in 'Bipin Shantilal' (supra) is not applicable

regarding the objections on relevancy of questions in

the course of examination of witnesses. However, as

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regards the admissibility and relevancy of the

documents, the judgment i.e. 'Bipin Shantilal' (supra)

holds good. This issue was also considered by the High

Court of Hyderabad in the latest judgment in the case

of Palakurthi Raja Gopala Rao v. Chaluvadi Krishna

Prasada Rao reported in 2025 SCC Online AP 646.

Paragraph No.7 of the said judgment is relevant and

the same is extracted hereunder:

"7. The above decision, though arising under a criminal case, was consistently quoted with approval by Hon'ble Supreme Court in subsequent reported decisions i.e State v. Navjot Sandh and Dhanpat v. Sheo Ram. However, it was opined that the above decision would not be applicable regarding objections on relevancy of questions in the course of examination of witnesses so that irrelevant and vague questions are brought into record by Hon'ble Supreme Court in Criminal Trials Guidelines Regarding Inadequacies and Deficiencies In re. However, as regards the admissibility and relevancy of the documents, the above quoted judgment holds good.