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
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
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
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
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,
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
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
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.
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.
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
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.
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.
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.
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
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:-
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?
proves that they are the bonafide
purchasers of the suit schedule
property for valid consideration?
6. Whether the suit is barred by
limitation?
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?"
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;
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.
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.
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
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
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
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
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
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
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.
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
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
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
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
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,
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
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
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
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
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
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
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
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.
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
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
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
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
(2025) 3 SCC 286
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
C.A.No.4910/2023 DD: 29.11.2023
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
(2023) 4 SCC 731
(2007) 5 SCC 730
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
(2020) 16 SCC 209
1995 Supp. (4) SCC 455
(2024) 4 SCC 247
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
(2017) 8 SCC 592
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
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
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
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
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
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
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
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
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
(2007) 8 SCC 514
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
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.
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
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
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
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
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
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
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
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
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
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.
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
(2008) 17 SCC 491
(2015) 9 SCC 755
1958 SCC Online SC 16
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
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.
(2002) 10 SCC 82
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
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,
(2013) 2 SCC 606
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
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
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?
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:
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.
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.
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.
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
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
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
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.
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;
(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.
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;
(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
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
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
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
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.
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
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
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
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
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
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
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
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
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
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
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
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,
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
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
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
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,
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
