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IN THE HIGH COURT OF KARNATAKA, BENGALURU

DATED THIS THE 28^TH DAY OF JANUARY, 2021

BEFORE

THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT

WRIT PETITION NO.14488 OF 2020 (GM-CPC)

BETWEEN:

1 . SRI. M R SHIVARUDRAIAH

S/O RUDRAPPA

AGED ABOUT 49 YEARS

2 . SMT B L RATHNAMMA

AGED ABOUT 42 YEARS

WIFE OF SHIVARUDRAIAH

BOTH ARE RESIDING AT NO.198

“RAJATHADRI 6^TH ‘A’ MAIN

‘A’ SECTOR M.I.G,

YELEHANKA NEW TOWN

BANGALORE-560 064.

… PETITIONERS

(By SRI.D.L.N.RAO A/W;

SRI.SRINIVASA.C AND

SRI.B.G.ASHOK KUMAR, ADVOCATES)

AND

1 . SRI RUDRAPPA

SON OF CHIKKARUDRAPPA

AGED ABOUT 84 YEARS

2 . SRI M R SOMASHEKAR

AGED ABOUT 57 YEARS

SON OF RUDRAPPA

3 . SMT GEETHA SOMASHEKAR

AGED ABOUT 51 YEARS

WIFE OF SOMASHEKARA

ALL RESIDING AT “RAJATHADRI”

NO198, GROUND FLOOR, 6^TH A MAIN,

“A” SECTOR, MIG, YELAHANKA NEW TOWN

BANGALORE-560064.

… RESPONDENTS

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(BY SMT.S.SUSHEELA SENIOR COUNSEL A/W;

SRI.SOMANATHA.H ADVOCATES FOR

C/R1 (CP.NO.1027/202O);

SRI.G.BALAKRISHNA SHASTRY ADVOCATE FOR R2 & R3)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226

AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET

ASIDE THE IMPUGNED ORDER, DATED 17.01.2020, PASSED

IN O.S NO.1209/2008, ON THE FILE OF THE XXXVIII ADDL.

CITY CIVIL JUDGE (CCH39) AT BANGALORE, VIDE ANNEXURE

K AND CONSEQUENTLY ALLOW THE WRIT PETITION AND

DISCORD THE EVIDENCE OF DW-2 AND DISCORD THE

ALLEGED DOCUMENT MARKED AS EX.D-345 IN THE SUIT;

AND ETC.,

THIS PETITION HAVING BEEN HEARD AND RESERVED

FOR PROUNCEMENT OF ORDERS, THIS DAY, THE COURT

MADE THE FOLLOWING:

O R D E R

Petitioners being 1^st & 3^rd defendants in a partition

suit in O.S.No.1209/2009 are knocking at the doors of the

writ court for assailing the order dated 17.01.2020 vide

Annexure-K whereby the learned XXXVIII Addl. City Civil

Judge, Bengaluru having overruled petitioners objection

has marked a xerox/photostat copy of Deed of Co-

ownership dated 15.05.1996 as Exhibit-345, in the cross-

examination of the witness concerned; the contesting

respondents having entered appearance through their

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counsel resist the writ petition making submission in

support of the impugned order.

2. Having heard the learned counsel for the parties

and having perused the petition papers, this Court is

inclined to grant indulgence in the matter as under and for

the following reasons:

(a) Admittedly, suit is one for partition; petitioners

happen to be the contesting defendants therein; during the

course of trial, the subject document which is a

xerox/photostat copy of alleged Deed of Co-ownership has

been marked in the cross examination of Defendant No.2

by confronting the same under Order VII Rule 14(4) of the

Code; the only reason stated by the Court below for

marking the same is that the witness in the box ie., DW-2

admits it; this is completely erroneous, to say the least; the

application of Order VII Rule 14(4) is confined to cross-

examination of plaintiffs’ witness, which is not the case

here; although, in a partition suit, ordinarily, the rank of

parties pales into insignificance, the norm enacted in the

said provision applies in the absence of a Counterclaim by

the said defendant who was being cross-examined.

(b) The subject document which appears to be a

copy of the title deed, is marked apparently as a secondary

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evidence; this presupposes the existence of the primary

evidence namely the original document; primary evidence

is that which does not by its very nature suggests that

better evidence may be available; secondary evidence is

that by its very nature does suggest that better evidence

may be available; the original of a documentary evidence

constitutes primary evidence and a copy thereof is

secondary evidence of its contents, needs no elaboration;

the distinction is important in connection with documents,

because their contents must, as a ge