A party seeking to introduce secondary evidence must provide a satisfactory explanation for the absence of primary evidence. Amendments should not change the nature of the suit and must be allowed unless justifiable reasons exist to deny them.

ORDER :

S. VISHWAJITH SHETTY, J.

1. The point that arises for consideration and the parties to these three writ petitions are common and therefore, with the consent of learned counsels appearing for the parties, the above captioned three writ petitions are heard together and disposed off by this common order.

2. Heard the learned counsel for the parties.

3. WP No.29901/2018 and WP No.30071/2018

These two writ petitions arise out of OS No.202/2015 which is filed by the petitioner in these two writ petitions seeking the relief of specific performance of the agreement for sale dated 20.12.2012. The prayer made in the suit was opposed by the contesting sole defendant by filing written statement.

In the said suit, IA No.2 was filed on behalf of the plaintiff under Section 63 of the Indian Evidence Act read with Rules 82 and 84 of the Karnataka Civil Rules of Practice and Section 151 of CPC seeking permission of the Court to produce the notarised copy of the agreement for sale dated 20.12.2012 and lead secondary evidence. The said application was opposed by the defendant by filing objections. The Trial Court vide the order dated 20.11.2017 rejected IA No.2 and as against the said order, plaintiff in OS No.202/2015 is before this Court in WP No.30071/2018.

In the said suit, IA No.3 was filed by the plaintiff under Order VI Rule 17 read with Section 151 of CPC, seeking permission of the Court to amend the plaint by inserting additional paragraph No.6(a) in the plaint immediately after paragraph No.6. The said application was also opposed by the sole defendant by filing objections and the Trial Court vide order dated 26.04.2018 rejected IA No.3 filed in OS No.202/2015 and being aggrieved by the said order, plaintiff in OS No.202/2015 is before this Court in WP No.29901/2018.

4. WP No.15512/2022

The defendant in OS No.202/2015 has filed OS No.169/2014 before the jurisdictional Civil Court seeking the relief of permanent injunction in respect of the suit schedule properties which is also the subject matter of OS No.202/2015. The contesting defendant had opposed the prayer made in OS No.169/2014 by filing a detailed written statement in the said suit.

IA No.10 was filed by defendant No.2, who is the plaintiff in OS No.202/2015 under Order VI Rule 17 read with Section 151 of CPC with a prayer to amend the written statement by incorporating paragraph No.9(a) immediately after paragraph No.9 of the written statement. The said application was opposed by the plaintiff by filing objections and the Trial Court by the order impugned dated 06.07.2022 has allowed IA No.10 filed by defendant No.2 in OS No.169/2014 and being aggrieved by the same, plaintiff in OS No.169/2014 is before this Court in WP No.15512/2022.

5. Learned counsel for the petitioner in WP No.29901/2018 and WP No.30071/2018 submits that petitioner has clearly stated in his affidavit filed in support of IA No.2 filed in OS No.202/2015 that after filing of the said suit, he had lost the original of the agreement for sale dated 20.12.2012. The Trial Court has failed to appreciate this aspect of the matter and has erred in rejecting IA No.2 on the ground that photostat copy of the agreement for sale was notarised a day prior to filing of the suit and therefore, as on the said day, petitioner is presumed to be in custody of the original of the sale agreement. Petitioner has not explained when he has lost the original of the agreement for sale. He submits that for the purpose of permitting a party to lead secondary evidence, the party is only required to adduce factual foundational evidence showing the reason for not furnishing the original. He submits that in the proposed amendment wh