W.P.No.32629/2018

1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 26^TH DAY OF NOVEMBER 2021

BEFORE

THE HON9BLE MRS. JUSTICE K.S.MUDAGAL

WRIT PETITION No.32629/2018(GM-CPC)

BETWEEN:

SRI. UMESH KUMAR,

S/O SRI. C.V.JOSHI,

AGED ABOUT 58 YEARS,

R/AT HIG NO.3, AGRAHARA,

DASARAHALLI EXTENSION,

KHB COLONY, BASAVESHARANAGAR,

BANGALORE 3 560 079.

& PETITIONER

(BY SRI.A.BALAKRISHNAN, ADVOCATE)

AND:

SMT. N.MEENA

ALIAS MEENAKSHI,

W/O SRI. V.VIJAYAKUMAR,

AGED ABOUT 47 YEARS,

R/AT NO.622, 2^ND STAGE,

2^ND BLOCK, NARAYANA NAGAR,

DODDAKALLASANDRA,

BANGALORE 3 560 062.

& RESPONDENT

(BY SRI. H.G.LAGALI, ADVOCATE [ABSENT])

THIS PETITION IS FILED UNDER ARTICLE 227 OF

CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER

DATED 31.05.2018 PASSED ON I.A.NO.7 IN O.S.NO.3997 OF

2016 ON THE FILE OF THE CITY CIVIL JUDGE (CCH-62),

BANGALORE, VIDE ANNEXURE-E BY ALLOWING THIS W.P.

AND ETC.

THIS

PETITION

COMING

ON

FOR

PRELIMINARY

HEARING IN 8B9 GROUP THIS DAY, THE COURT MADE THE

FOLLOWING:

W.P.No.32629/2018

2

O R D E R

Learned counsel for the respondent is absent.

Heard the petitioner9s counsel.

<Whether the trial Court committed error and

irregularity in permitting the respondent to adduce

photostat copy of the agreement of sale dated

01.03.2014 invoking Section 65 of the Indian Evidence

Act ?= is the question involved in this case.

2.

The

petitioner

filed

O.S.No.3997/2016

against the respondents before LXI Addl. City Civil &

Sessions

Judge,

Bengaluru

seeking

decree

for

ejectment, recovery of arrears of rent and damages etc.

3.

The subject matter of the suit is the

property bearing Sy.No.622, II Block, Narayananagar,

Doddakallasandra, Bengaluru 560 062, in all measuring

2482 sq.ft with house thereon.

4.

The petitioner claimed that he let out the

said premises to the respondent on 01.03.2014 on

monthly rent of Rs.6,500/-. He further claimed that the

respondent paid Rs.70,000/- as security deposit under

W.P.No.32629/2018

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two cheques for sum of Rs.35,000/- each. He claimed

that respondent committed default in payment of rent.

The petitioner got issued notice dated 15.04.2016 to the

respondent terminating the tenancy and calling upon

her to pay the arrears of rent and damages. The said

notice was served on her and it was not replied.

Ultimately he filed the aforesaid suit for ejectment etc.,

5.

The respondent in her written statement

disputed the relationship of landlord and tenant. She

claimed that the petitioner put her in possession of the

property under an agreement of sale dated 01.03.2014.

She claimed that the petitioner agreed to sell the

property for sum of Rs.36 lakhs and received advance

consideration Rs.9 lakhs and the sum of Rs.70,000/-

was also paid as advance consideration.

6.

During the course of evidence, respondent

filed IA No.VII under Section 65 of the Indian Evidence

Act along with the photostat copy of agreement of sale

dated 01.03.2014. She claimed that the original sale

agreement is in the possession of the petitioner

W.P.No.32629/2018

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therefore, she shall be permitted to adduce the said

document in evidence. In other words, she sought the

admission of the said document in evidence.

7.

The petitioner contested the said application

disputing

the

existence

of

such

document

and

genuineness of the same. He further contended that

such document cannot be considered as secondary

evidence unless the other formalities as contemplated

under Section 66 of the Evidence Act are complied.

8.

On hearing the parties, the trial Court by

the impugned order allowed the application on the

ground

that

the

respondent

has

made

specific

suggestion with regard to the said document in the

cross-examination of the petitioner and the question

whether the original is in possession of the petitioner

has to be decided on trial. The trial Court further held

that the respondent has made out the