Allowed

Shree Uttaradi Mutt v. Shree Raghavendra Swamy Mutt

Karnataka HC4 Jun 2019WP/110239/2019

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed a writ petition challenging the First Appellate Court's permission to mark additional documents in evidence. The Court held that documents already on record and referenced in the supporting affidavit could be marked without prejudice.

What did the court decide?

The writ petition was disposed of permitting the respondent to mark the documents referred in their memo dated 03.06.2019.

Shree Uttaradi Mutt Vs Shree Raghavendra Swamy Mutt — Property and Title | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 4^TH DAY OF JUNE, 2019

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BEFORE

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THE HON’BLE MR.JUSTICE S.G. PANDIT

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WRIT PETITION NO.110239/2019 (GM-CPC)

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BETWEEN:

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SHREE UTTARADI MUTT, REPRESENTED BY ITS PEETHADHIPATI, SRI SRI 1008 SRI SATYATMA TEERTHA SWAMIJI, UTTARADI MUTT, BASAVANAGUDI, NEAR NATIONAL COLLEGE, BENGALURU-560 085, R/BY ITS GENERAL POWER OF ATTORNEY HOLDER: SRI R.S.KEMBHAVI, AGED ABOUT 78 YEARS, R/O. C/O UTTARADI MUTT, BASAVANAGUDI, BENGALURU 560 085.

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…PETITIONER (BY SRI.UDAYA HOLLA, SENIOR ADVOCATE FOR SRI.AMEET KUMAR DESHAPANDE, ADVOCATE)

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AND:

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SHREE RAGHAVENDRA SWAMY MUTT, R/BY ITS PEETHADHIPATI, SRI.H.H.SUBHUDENDRA TEERTHA SWAMIJI, MANTRALAYAM, KARNOOL DIST. ANDHRA PRADESH 510 003, BY HIS APTHAKARYADARSHI, SRI.S.N.SUYAMENDRACHAR.

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…RESPONDENT (BY SRI.K.SUMAN AND SRI.G.M.BHAT, ADVOCATES)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 25.04.2019 PASSED IN R.A.NO.123/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, DHARWAD, WHEREBY ADDITIONAL DOCUMENTS NOT SHOWN IN THE LIST APPENDED TO THE APPLICATIONS IA NO.5, 11 AND 12 FILED UNDER ORDER 47 RULE 27 OF C.P.C. ON BEHALF OF THE DEFENDANT/RESPONDENT HEREIN, ARE ALLOWED, IS CONCERNED, THE COPY OF WHICH IS AT ANNEXURE-S.

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THIS WRIT PETITION COMING ON FOR HEARING ON I.A. THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner is before this Court under Article 227 of the Constitution of India challenging the order dated 25.04.2019 passed in R.A.No.123/2014 on the file of the Prl. Senior Civil Judge and CJM, Dharwad, whereby additional documents not shown in the list appended to the applications, I.A.Nos.5, 11 and 12 are allowed to be marked.

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The petitioner is the plaintiff and the

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respondent is the defendant in O.S.No.193/1992

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filed for permanent injunction to restrain the defendant from entering upon the suit schedule land “Nava Vrindavana Gadde” or interfering with the plaintiff’s possession and enjoyment thereof in any way, and or interfering or disturbing with the performance of Annual Aradhana of H.H.Padmanabha Theertharu, Sri.H.H. Kavindra Theertharu and Sri.H.H. Vageesha Theertharu.

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After trial the suit came to be dismissed by judgment and decree dated 18.06.2011. Aggrieved by the said judgment and decree, the plaintiff filed R.A.No.123/2014 before the Prl. Senior Civil Judge and CJM Dharwad. The said Regular Appeal was allowed by judgment dated 22.04.2015. The decree passed in R.A.No.123/2014 reads as follows:

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“The suit of the plaintiff is decreed in part. Subject to the right, if any, of the Defendant Mutt to perform Aradhanas and Poojas of the Vrindavanas in the suit property, the defendant is restrained by way of Perpetual Injunction from interfering with the plaintiff Mutt’s possession and enjoyment of the suit property. It is hereby clarified that the above said raider shall not be construed as declaring the right of the Defendant Mutt to perform Aradhanas and Poojas.”

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Aggrieved by the judgment passed in R.A.No.123/2014, the defendant/respondent herein filed RSA No.100446/2015 before this Court. This Court by judgment dated 14.11.2017 allowed the appeal and also applications filed under Order 41 Rule 27 of CPC and remanded the matter to the trial Court directing to allow the additional evidence and to allow the parties to prove and disprove the same in accordance with law and then re-decide the suit giving its

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findings in the light of such additional evidence. Aggrieved by the said remand order, the petitioner herein i.e. the plaintiff filed Civil Appeal No.9333/2018 before the Hon’ble Apex Court. The said Civil Appeal was disposed of by judgment dated 26.09.2018, wherein the judgment of the high Court was modified to the effect that the appeal was restored to the file of the High Court to its original number. The High Court was directed to frame points on which the additional evidence is allowed to be produced and directing the First Appellate Court to take the additional evidence on record in accordance with law and then return the evidence to the High Court together with its findings thereon and the reasons thereof. Accordingly, this Court by order dated 23.01.2019 framed four points for determination by the First Appellate Court. Aggrieved by the said order by which four points

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were framed for consideration by the First Appellate Court, the defendants/respondents herein filed Civil Appeal No.2027/2019 before the Hon’bel Apex Court. The Hon’ble Apex Court by order dated 25.02.2019 modified the order of this Court and restricted the points for determination to two i.e. Point No.(i) and point No.(iv) framed by the High Court without disturbing the order of the High Court.

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In pursuance to the above said proceedings, the parties appeared before the First Appellate Court to lead evidence. During the course of the evidence, the defendant/ respondent herein intended to mark documents other than the documents listed in the application filed under Order 41 Rule 27 of CPC. The same was opposed by the plaintiff/petitioner herein contending that only those documents

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which are enclosed to the applications i.e. I.A.Nos.5, 11 and 12 could be marked and no other documents could be marked. The learned First Appellate Judge under the impugned order permitted the defendant/respondent herein to mark all those documents which are not shown in the list to the application filed under Order 41 Rule 27 of CPC on the ground that the High Court has permitted to produce the documents which are not exhibited. Aggrieved by the said order the plaintiff/petitioner herein is before this Court in this writ petition.

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Learned counsels, Sri.K.Suman and Sri.G.M.Bhat have entered appearance for the respondent. Heard the learned senior counsel, Sri.Udaya Holla for Sri.Ameet Kumar Deshapande appearing for the petitioner and the learned counsels appearing for the respondent.

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The learned senior counsel on behalf

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of the plaintiff/petitioner herein would submit that the learned First Appellate Court could not have permitted the defendant/respondent herein

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to mark the documents other than the documents shown in I.A.Nos.5, 11 and 12. By the order of the learned First Appellate Judge the defendants could mark any documents other than the listed documents. The learned senior counsel took the Court through the order passed by the Hon’ble Apex Court and this Court on earlier occasions.

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During the course of hearing, the learned counsel for the respondent/defendant filed a memo dated 03.06.2019 which reads as follows:

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“The memo filed by the respondent.

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The respondent submits that, it has already produced 4 documents along with

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I.A.No.5 in the year 2012 in the lower appellate court and specifically referred to these 4 documents in the affidavit filed in support of I.A.No.5. The respondent No.1 will be marking in the said case in the lower appellate court only the said 4 documents which are as under:-

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1. Memo dated 07.11.1973 given by the Deputy Commissioner, Land Records, Gulbarga to ASLR, Raichur stating that, no survey and corrections can be effected by the ASLR without the order of the Revenue Authorities U/Sec.140(2) of Mysore Land Revenue Act, 1964.

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2. The letter of ASLR, Raichur dated 19.11.1973 to Tahasildar, Gangavathi to effect necessary changes in ROR.

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3. The order of Superintendent of Land Records dated 07.09.1974 directing correction of extent of Sy.No.192 as 27Ac-30Gs available at the spot.

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4. The ASLR, Raichur vide letter dated 29.01.1975 submits reply to the Deputy Commissioner, Raichur in

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respect of the Telegram requesting that no action is necessary on the Telegram.

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The respondent further respectfully submits that, the aforesaid 4 documents are already on record along with I.A.No.5. As for as another document which is the subject matter of I.A.No.12 before the lower appellate court i.e. the RTI reply dated 20.01.2015, the respondent had actually filed only the Photostat copy of the said RTI reply inadvertently along with I.A.No.12 in the year, 2015. The respondent will therefore be producing the original of the RTI reply dated 20.01.2015. No other document will be produced by the respondent excepting the aforesaid document i.e. RTI reply.

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The respondent therefore prays this Hon’ble Court to take this memo on record and pass appropriate orders in the matter, in the interest of justice and equity.”

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The learned counsel for the respondent submits that the defendant/respondent herein

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intends to mark 4 documents stated in the above memo and original of document dated 20.01.2015 Photostat copy of which is already produced and which is on record. He submits that other than the documents mentioned in the memo the defendant/respondent herein would not intend to mark any other documents. It is his submission that 4 documents mentioned in the memo are already on record and he points out those documents in the affidavit filed in support of I.A.No.5 filed under Order 41 Rule 27 of CPC. Further submits that inadvertently those documents were not mentioned in the application.

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On perusal of the affidavit, 4

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documents mentioned in the memo finds place in the affidavit. It is those documents which the defendant/respondent herein intends to mark in

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the evidence apart from one letter copy of which is already on record and original of which the defendant intends to mark.

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Thus, the dispute with regard to marking of documents has narrowed down to the documents which are mentioned in the memo dated 03.06.2019 filed by the defendant/ respondent herein. The petitioner/plaintiff has filed objection to the memo filed by the defendant/respondent herein dated 03.06.2019 contending that the memo is opposed to the order passed by the Hon’ble Apex Court in Civil Appeal No.9333/2018. Further, it is stated that the documents which are now sought to be marked are not even offered to the petitioner for its perusal so as to ascertain its contents and admissibility, etc.

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Having heard the learned counsels for

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the parties and having perused the writ papers, memo filed by the defendant/respondent herein on 03.06.2019 and reply to the said memo, I am of the view that the defendant/respondent herein could be permitted to mark the documents stated in the memo dated 03.06.2019 for the reason that the documents stated in the memo dated 03.06.2019 are memo dated 07.11.1973 given by the Deputy Commissioner, Land Records, Gulbarga to ASLR, Raichur; letter of ASLR, Raichur dated 19.11.1973 to Tahasildar, Gangavathi; order of Superintendent to Land Records dated 07.09.1974; and ASLR, Raichur letter dated 29.01.1975, since they find place in the affidavit filed in support of the application filed under Order 41 Rule 27 of CPC i.e. I.A.No.5.

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In fact, the learned counsel for the

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defendant/respondent herein submits that those documents are already on record and only they are to be marked as documents. As those documents are already on record and as they find place in the affidavit filed in support of the application filed under Order 41 Rule 27 of CPC, no prejudice would be caused to the plaintiff/petitioner herein if those documents are permitted to be marked. Those are not new documents introduced during the course of evidence after remand, but as stated by the learned counsel for the defendant/respondent herein they are already on record.

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The Hon’ble Apex Court in its order dated 26.09.2018 passed in Civil Appeal No.9333/2018 has observed that the First Appellate Court to record additional evidence

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and also to consider the question of genuineness and authenticity of the additional evidence, including as to whether the contents thereof have been proved by the party relying thereon. Therefore, mere marking of documents would not cause any prejudice to the plaintiff/petitioner herein. It is for the defendant/respondent herein to prove the genuineness and authenticity of the documents. The other document which the defendant/respondent herein intends to mark is RTI reply dated 20.01.2015 copy of which is said to have been placed on record and he intends to produce the original of the said reply which would also not cause any prejudice to the plaintiff/petitioner herein.

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