Karnataka High Court
Tara N Siyal vs Pushpa Siyal on 23 July, 2025
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WP No. 14169 of 2020
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
WRIT PETITION NO. 14169 OF 2020 (GM-CPC)
BETWEEN:
1. TARA N SIYAL
W/O LEELA NEELAM SIYAL
AGED ABOUT 47 YEARS
RESIDENT OF 188, 2ND FLOOR,
NARAYAN PILLAI STREET,
BHARATHINAGAR
Digitally signed BENGALURU-560001.
by RUPA V
Location: High 2. KARAN SIYAL N
Court of S/O LEELA NEELAM SIYAL
karnataka AGED ABOUT 23 YEARS
RESIDENT OF 188, 2ND FLOOR,
NARAYAN PILLAI STREET,
BHARATHINAGAR
BENGALURU-560001.
3. N SURAJ SIYAL
S/O LEELA NEELAM SIYAL
AGED ABOUT 19 YEARS
RESIDENT OF 188, 2ND FLOOR,
NARAYAN PILLAI STREET,
BHARATHINAGAR
BENGALURU-560001.
...PETITIONERS
(BY SRI. UMESH MOOLIMANI,
AND SRI S.V. PRAKASH, ADVOCATES)
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AND:
PUSHPA SIYAL
W/O LATE B.P. SIYAL
AGED ABOUT 70 YEARS
R/AT 188, AND 190
NARAYANA PILLAI STREET,
BHARATHINAGAR
BENGALURU-560001
SINCE DEAD BY LRs...
1. NAVEEN SIYAL
AGED ABOUT 45 YEARS
S/O LATE PUSPHA SIYAL
R/AT #190,
NARAYANA PILLAI STREET
BHARATHINAGAR
BENGALURU-560001.
2. LOKESH SIYAL
AGED ABOUT 42 YEARS
S/O LATE PUSHPA SIYAL
R/AT #190,
NARAYANA PILLAI STREET
BHARATHINAGAR
BENGALURU-560001.
3. SHIKHA KOTHARI
W/O SANJAY KOTHARI
AGED ABOUT 49 YEARS
R/O HITWARI, BHAJI MANDI
NEAR JAIN MANDIR
NAGPUR.
4. HEMALATHA NATA
W/O ANKUR NATA
AGED ABOUT 47 YEARS
C/O PRATHAM OPTICIANS
NO.1/7, FRANCIS JOSEPH STREET
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BROADWAY, GEORGE TOWN
CHENNAI-600 108, TAMIL NADU.
5. MANORAMMA KOTHARI
W/O KAMALESH KOTHARI
KRISHNA JAYAM APARTMENTS
NO. 45, 1ST MAIN ROAD,
MARUTI EXTENSION
MALLESHWARAM
BENGALURU-560 003.
...RESPONDENTS
(BY SRI.G.R. MOHAN, ADVOCATE)
THIS W.P. FILED PRYING TOSET ASIDE THE ORDER
DTD.23.9.2020 PASSED BY THE COURT OF LEARNED V
ADDITIONAL SMALL CAUSE JUDGE AND XXIV ADDITIONAL
CITY METROPOLITAN MAGISTRATE MAYOHAL UNIT
BENGALURU (SCCH 20) ON IA NO.20 AND 21 AND ALSO ON
THE APPLICATION SEEKING PERMISSION TO LEAD
SECONDARY EVIDENCE IN S.C.NO.1522/2018 PRODUCED AS
ANNEXURE-L AND M RESPECTIVELY TO THE W.P. AND
CONSEQUENTLY REJECT THE IA NO.20 AND 21 AND
INTERLOCUTORY APPLICATION SEEKING PERMISSION TO LEAD
SECONDARY EVIDENCE MADE BY THE PLAINTIFF RESPONDENT
IN S.C.NO.15221/2018
THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
ORAL ORDER
This petition is filed challenging the order dated
23.09.2020 passed on I.A.Nos.20 and 21 in
S.C.No.15221/2018 by the V Additional Small Cause Judge and
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XXIV Additional City Metropolitan Magistrate, Mayohall Unit,
Bengaluru.
2. Sri Umesh Moolimani, learned counsel appearing for
the petitioners submit that the respondent filed a suit against
the petitioners for eviction and other reliefs on the ground that
the petitioners are in possession of the suit scheduled property
based on the Rental Agreement dated 15.04.2013. It is further
submitted that the petitioners filed detailed written statement
denying the Rental Agreement dated 15.04.2013 by contending
that the petitioners are the daughter-in-law and grand childrens
of the respondent and they are residing in the suit schedule
premises from the ages along with her husband and after the
demise of her husband they continued to reside in the said
premises and the suit schedule property is a family property.
Question of landlord and tenant relationship between the
petitioners and respondent does not arise, and sought for
dismissal of the plaint.
3. The respondent through General Power of Attorney
Holder adduced evidence and thereafter filed applications,
I.A.Nos. 19, 20 and 21. The Applications were filed seeking
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prayer to re-open the case, to recall PW1 for further
examination and to lead secondary evidence in respect of
Document No. 1 i.e. photocopy of the rental agreement dated
15.04.2013. The said applications were allowed by the trial
Court under the impugned orders, both Orders dated
23.09.2020. It is submitted that the plaint averments at Para
14 indicates that, the plaintiff has produced photocopy of the
Rental Agreement and there was no whisper with regard to the
production of the Original Rental Agreement. However, in the
applications accompanying the affidavits, it is stated that the
original of the agreement is in the custody of the defendant.
The trial Court, without considering any of the aspects, allowed
the applications.
4. It is submitted that Order VII Rule 14 mandates
that the plaintiff is required to produce the documents relied by
him along with the plaint. In the instant case, the plaintiff has
not produced the documents as required under the law, and not
stated with regard to the possession of the original document in
the plaint. However, the trial Court without appreciating any of
these aspects and without understanding the scope of Section
65 of the Evidence Act, has allowed the applications under the
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impugned order by re-opening the case allowing PW1 to lead
further evidence and to mark the agreement of sale as
secondary evidence.
5. It is further submitted that the trial Court had
relied on the decision of the Hon'ble High Court of Madhya
Pradesh. The said decision clearly indicates the requirements to
be complied while allowing an application for secondary
evidence, and none of the requirements are found in the
reasoning of the trial Court under the impugned order. Hence,
he seeks to allow the petition.
6. Per contra, Sri G.R. Mohan, learned counsel
appearing for the respondent submits that, the trial Court
under the impugned order at para 11 has clearly recorded the
finding that the document in question is a signed document by
the plaintiff and the defendant no. 1, and it is in the custody of
the defendant no. 1. Hence, it could not be produced.
7. It is submitted that mere production of the
document is not amounting to accepting the evidence on
record. The plaintiff is required to prove the contents of the
document. Hence there cannot be any opposition for production
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of the secondary evidence. It is submitted that, before granting
the interim order by this court, the subject document was
already marked and as per the direction of the trial court, the
plaintiff has made good the deficient stamp duty and penalty,
which also can be found from the order sheet. Hence he seeks
to dismiss the petition.
8. I have heard the arguments of the learned counsel
for the petitioners, learned counsel for the respondent, and
meticulously perused the material available record.
9. The pleadings and material on record indicate that
the respondent filed S.C. No.15221/2018 for relief of eviction
and arrears of rent etc. The material on record indicates that
the plaintiff is the mother-in-law and defendant no. 1 is the
daughter-in-law and defendant no. 2 and 3 are the
grandchildren of the plaintiff. The entire premise of the plaint is
that the defendants occupied the suit schedule property as a
tenancy under the rental agreement dated 15.04.2013. The
petitioners/defendants denied the assertion made in the plaint
by categorical statement that the defendants are the family
members and they are in possession of the suit schedule
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property from ages. It is contended that the defendants no. 1.
2, 3 and the husband of defendant no. 1, Neelam Siyal, were
residing in the same premises as the suit schedule property is a
family property.
10. Be that as it may, on behalf of the plaintiff, PW1
has been examined. Thereafter, the plaintiff filed applications in
IA Nos.19 to 21 to reopen the case, to recall PW1 for further
examination and marking of Document No. 1 and to lead
secondary evidence in respect of Document No. 1, the
Photocopy of the rental agreement dated 15.04.2013. The trial
Court, overruling the objection filed by the petitioners, allowed
all the applications by two separate orders, both dated
23.09.2020.
11. Order 7 Rule 14 of CPC, 1908, mandates that
production of documents on which the plaintiff sues or relies.
The Karnataka High Court amendment of Rule 14 reads as
under:
"14.(1) The plaintiff shall endorse on the plaint or annex
thereto a list of documents required to be produced or
disclosed as hereinafter provided in this rule
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(2) Where the plaintiff sues upon a document in his
possession or power, he shall produce it in Court when the
plaint is presented, and shall at the same time deliver the
document or a copy thereof to be filed with the plaint.
(3) Where the plaintiff relies on any other documents
(whether in his possession or power or not) as evidence in
support of his claim, he shall enter such documents in the list
above referred to showing separately which of the documents
in his possession or power and which are not, which of the
documents in his possession or power he has produced with
the plaint and which are not so produced. In regard to any
such documents which are not produced, the list shall contain
a statement of the reason for their non-production and the
steps which the plaintiff has taken or will take to produce
them or cause their production."
12. The aforesaid Rule indicates that if the plaintiff
sues or relies upon the document in his possession or power, in
support of his claim, he shall enter such documents in a list and
shall produce it in the Court when the plaint is presented and
shall at the same time deliver the document or a copy thereof
to be filed with the plaint. Further sub-Rule 3 of Rule 14
provides that where the plaintiff relies on any document
whether in his possession or power or not, as evidence in
support of his claim, he shall enter such document in the list
referred above, showing separately which documents are in his
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possession and power and which are not. The list also shall
contain the statement of reason for non-production and the
steps which the plaintiff has taken or will take to produce them
or cause their production.
13. In the case on hand the plaintiff at Para 14 has
stated that plaintiff has herewith produced photocopy of the
rental agreement dated 15.04.2013 and marked as document
No.1. However, there is no statement or averment made in the
para 14 of the plaint with regard to the possession of the
Rental Agreement. In other words, the plaintiff has failed to lay
the foundation for production of the secondary evidence. The
petitioner is required to state at the first instance if he is not in
possession of the relied document as per Rule 14 of Order VII
of CPC. The said fact is absent in the case on hand.
14. Further, the applications filed by the Plaintiff, a
vague assertion is made in the affidavit filed by the GPA holder
of the plaintiff, that the original was in the custody of the
defendant, late Neelam Siyal and he possesses only photocopy
with a signature. In my considered view, the said assertion is
without any basis as the agreement which is relied by the
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plaintiff ought to have contained the clause to the aforesaid
effect. The trial Court though relied on the decision of the
Madhya Pradesh High Court at Para 10 of the impugned order.
The same has not been followed while allowing the applications.
15. The relevant extract of the impugned order of the
trial Court is extracted herein below:
"10. Further, the counsel for the defendant has also relied
upon a judgment of the Hon'ble Appellate Court, in Pravin Vs.
Ghanshyam of the Hon'ble High Court of Madhya Pradesh, wherein it
is held that
"the per-conditions for leading secondary evidence are that
such original documents could not be produced by the
party relied upon such documents in spite of best efforts,
unable to produce the same, which is beyond their control.
The party sought to produce secondary evidence. Unless
established that the original is destroyed or is being
deliberately whithheld by the party in respect of that
document sought to be used, secondary evidence in
respect of that document cannot be accepted".
This judgment well suits to the facts and circumstances of the
instant case and very much support the case of the plaintiff."
16. The aforesaid decision of the Madhya Pradesh High
Court clearly states that the preconditions to lead secondary
evidence are that, despite making best efforts, the party could
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not produce, unable to produce the same, which is beyond its
control. These requirements are required to be properly
pleaded and required to be established by cogent and
acceptable material before the court. The party seeking to
produce secondary evidence must establish reasons for non-
production of primary evidence first and unless it is established
that the original is destroyed or is been deliberately withheld by
the parties in respect of that documents sought to be used, the
secondary evidence cannot be allowed to be produced.
17. In the case on hand, there is no specific averment
in the plaint or even in the affidavits accompanying the
applications that the original rental agreement is with the
defendant and deliberately it is withheld by her or that the
plaintiff has made best efforts to secure the same, despite that
she failed. In other words, the plaintiff is required to lay a
proper foundation for placing the secondary evidence before
the court by proper pleadings and evidence and proper
material, to prove that the plaintiff is unable to produce the
primary evidence. Such a requirement is absent in the case on
hand.
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18. Section 65 of the Indian Evidence Act makes it very
clear in cases which secondary evidence relating to document
may be given, none of the conditions mentioned in Section 65
are available in the case on hand. Hence, in my considered
view the trial Court has committed grave error in recording the
finding that there is a signature of the party on the instrument,
and the trial Court on mere presumption that it is in the
custody of the defendant has proceeded to allow the
application. The secondary evidence cannot be allowed by mere
argument.
19. The Hon'ble Supreme Court in the case of H.
Siddique (dead) by LRs v. M. Ramalingam,1 at Para 12 held
as under:
"12. The provisions of Section 65 of the 1872 Act provide
for permitting the parties to adduce secondary evidence.
However, such a course is subject to a large number of
limitations. In a case where the original documents are not
produced at any time, nor has any factual foundation been
laid for giving secondary evidence, it is nor permissible for
the court to allow a party to adduce secondary evidence.
Thus, secondary evidence relating to the contents of a
(2011) 4 SCC 240
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document is inadmissible, until the non-production of the
original is accounted for, so as to bring it within one or
other of the cases provided for in the section. The
secondary evidence must be authenticated by foundational
evidence that the alleged copy is in fact a true copy of the
original. Mere admission of a document in evidence does
not amount to its proof. Therefore, the documentary
evidence is required to be proved in accordance with law.
The court has an obligation to decide the question of
admissibility of a document in secondary evidence before
making endorsement thereon. (Vide Roman Catholic
Mission v. State of Madras [AIR 1966 SC 1457], State of
Rajasthan v. Khemraj [(2000) 9 SCC 241: AIR 2000 SC
1759], LiC v. Ram Pal Singh Bisen [(2010) 4 SCC 491 :
(2010) 1 SCC (L&S) 1072 : (2010) 2 SCC (Civ) 191] and M.
Chandra v. M. Thangamuthu [(2010) 9 SCC 712 : (2010) 3
SCC (Civ) 907])."
[Emphasis supplied]
20. Keeping in mind the enunciation of law laid off by
the Hon'ble Supreme Court and considering the pleading and
the averment in the affidavits accompanying the applications, I
am of the considered view that the plaintiff has failed to lay a
proper foundation for production of the secondary evidence,
and the Trial Court has committed a grave error in allowing
such applications by ignoring the requirements of Section 65 of
the Indian Evidence Act.
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21. The contention of the learned counsel for the
respondent that before granting of the interim order by this
Court, the document is already marked and the plaintiff has
made good the stamp duty and penalty and the document itself
has no consequences while deciding the application for
production of secondary evidence.
22. For the aforesaid reasons, I proceed to pass the
following:
ORDER
i) Writ Petition is allowed.
ii) Impugned orders dated 23.09.2020 passed on
I.A.Nos. 19, 20 and 21 in S.C.No.15221/2018 by the V
Additional Small Cause Judge and XXIV Additional City
Metropolitan Magistrate, Mayohall Unit, Bengaluru are set
aside, and consequently, I.A.No.19, 20 and 21 are rejected.
Sd/-
(VIJAYKUMAR A. PATIL)
JUDGE
HR
