Back
2019 Supreme(Kar) 796
IN THE HIGH COURT OF KARNATAKA
G. Narendar, J.
B.M. Keshavappa - Appellant
Vs.
K.M. Jayarama Reddy - Respondent
Writ Petition No. 48657 of 2017
Decided On : 17-09-2019
T. Prakash, Adv., Manoj Kumar R.V., Adv.
The main legal point established in the judgment is the requirement to lay a factual foundation to establish the right to give secondary evidence and the emphasis on the party's inability to produce the original document not being due to their own default or neglect.
Headnote:
agreement of sale - dispute over land sale agreement - Indian Evidence Act, Section 65 - summary of the acts and sections referenced and discussed by the court: The court discussed the provisions of Section 65 of the Indian Evidence Act, which deals with the admissibility of secondary evidence relating to documents. The court emphasized that the inability to produce the original document should not be due to the party's own default or neglect. The court also highlighted the need for laying a factual foundation to establish the right to give secondary evidence. The judgment focused on the significance of the alleged sale agreement as it formed the core of the defense set up by the petitioner and the second respondent.
Fact of the Case:
The petitioner claimed that the second respondent had executed an alleged agreement of sale and subsequently executed a sale deed in favor of the petitioner. The first respondent alleged that he had paid a sum of Rs.9,00,000/- as part of the sale agreement with the second respondent. The suit was resisted by both the petitioner and the second respondent, who claimed that the first respondent is a land developer resorting to illegal methods.
Finding of the Court:
The court found that the loss of the document was due to the petitioner's negligence, making the secondary evidence inadmissible. The court also noted discrepancies in the petitioner's case, including the lack of a foundation for invoking Section 65 of the Indian Evidence Act and the absence of a public notice. The court concluded that the document produced was not a duplicate of the original and that manipulation of the document was highly possible.
Issues: The main issues revolved around the admissibility of the alleged sale agreement as secondary evidence, the negligence leading to the loss of the document, and the credibility of the petitioner's claims.
Ratio Decidendi: The court emphasized the need for laying a factual foundation to establish the right to give secondary evidence and highlighted that the inability to produce the original document should not be due to the party's own default or neglect.
Final Decision: The court dismissed the writ petition, finding it devoid of merits and concluding that the document produced was not a duplicate of the original and that manipulation of the document was highly possible.
JUDGMENT :
G Narendar, J.
Heard the learned counsel for the petitioner and the learned counsel for the first respondent. The second respondent though served has remained unrepresented.
2. The case of the petitioner is that second respondent had executed an alleged agreement of sale in respect of the lands owned by him and comprised in survey No.66/2, measuring 171/2 guntas situated in Anneswara village, Kasaba Hobli, Devanahalli Taluk, Bangalore Rural District and subsequently by a registered sale deed dated 20.08.2007 he has executed an absolute sale deed in favour of the petitioner. That in the interregnum on 06.02.2007 the second respondent had executed a sale agreement to the first respondent herein-the plaintiff.
3. It is the case of the first respondent that he has paid a sum of Rs.9,00,000/- on the execution of the agreement in the following manner:-
(a) Rs.1,00,000/- in cash.
(b) Rs.4,00,000/- through Cheque bearing No.449944 dated 08.02.2007 drawn on Syndicate Bank, Ganganagar Branch, Bangalore.
(c) Rs.4,00,000/- through Cheque bearing No.449949 dated 12.02.2007 drawn on Syndicate Bank, Ganganagar Branch, Bangalore.
4. That the total sale consideration agreed upon between the first and second respondent was Rs.13,78,125/- and that the name of the second respondent-Vendor had not yet been mutated in the revenue records and that he promised to execute the sale deed immediately after his name is mutated in the revenue records. That despite passage of time, the second respondent failed to take any steps to have the revenue entries mutated in his favour and hence the petitioner at his own cost and effort got the revenue entries changed in the name of the second respondent. That on 11.04.2007 the first respondent had paid a further sum of Rs.1,30,000/- to the second respondent.
5. That despite the fact of the revenue entries having been mutated in favour of the second respondent, the second respondent failed to come over and execute the sale deed by receiving the balance of sale consideration. Hence, the petitioner got issued a legal notice on 03.08.2007 calling upon the second respondent to perform his part of the contract and that the notice has been served upon the second respondent on 10.08.2007 and after the service of legal notice, the petitioner and second respondent have clandestinely got executed the sale deed. It is not in dispute that the legal notice had not been replied to and the first respondent upon coming to know about the execution of the sale deed, has instituted the suit immediately on 18.09.2007.
6. The suit is resisted by both the petitioner and the second respondent, by filing a separate written statements. The first defendant therein has got filed his written statement on 14.11.2007 and the second defendant therein got filed his written statement on 15.12.2007. The entire plaint averments are denied.
7. It is alleged by the petitioner that the first respondent is a land developer and that he is resorting to illegal methods to coerce the land owners to part with their lands. That he and his uncle one Krishnappa had entered into an agreement with the second respondent herein for the purchase of the suit property for a valuable consideration of Rs.5,37,500/-. That the second respondent executed the sale agreement in favour of both the petitioner and his uncle said Krishnappa and that the second respondent has also received a sum of Rs.5,00,000/- by way of cash in consideration of the agreement and that the remaining sale consideration to be paid was Rs.37,500/- only. That the execution of the sale deed was put off on account of the name of the second respondent having not been entered in the revenue records like the Khatha etc. That as per the family arrangement the sale deed pertaining to the suit property has been registered in the name of the petitioner herein. It is relevant to note the pleading in para 5 of the written statement that the suit is a futile exercise as no right was vested in the second responden
