Dismissed

Shivanand S/O Mallappa Mugalihal v. Avadhut S/O Haribhau Khanolkar

Karnataka HC13 Sept 2024WP/104936/2024

Case brief

AI extract

What is this about?

A writ petition challenging an order directing landlords to produce an original lease deed was disposed of. The court held that since petitioners claimed the document was not in their custody and relied on a xerox copy, the direction to produce did not arise, allowing the trial court to draw adverse inferences.

What did the court decide?

The writ petition was disposed of; the direction to produce the lease deed was impliedly rejected as it was not in the custody of the petitioners.

Shivanand S/O Mallappa Mugalihal Vs Avadhut S/O… — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:13113 WP No. 104936 of 2024

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 13^TH DAY OF SEPTEMBER, 2024 BEFORE

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THE HON'BLE MR. JUSTICE H.P.SANDESH WRIT PETITION NO. 104936 OF 2024 (GM-CPC)

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BETWEEN:

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SHIVANAND S/O. MALLAPPA MUGALIHAL, AGE: 51 YEARS, OCC: BUSINESS, R/O. PLOT NO.317, RAMTHIRTH NAGAR, BELAGAVI-591265.

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ROHINI W/O. SHIVANAND MUGALIHAL, AGE: 33 YEARS, OCC: BUSINESS, R/O. PLOT NO.317, RAMTHIRTH NAGAR, BELAGAVI-591265.

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…PETITIONERS

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(BY SMT. MRINALINI PATIL, ADVOCATE)

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AND:

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AVADHUT S/O. HARIBHAU KHANOLKAR, AGE: 61 YEARS, OCC: PROFESSOR, R/O. H.NO.3398, GONDHALLI GALLI, BELAGAVI, TAL AND DIST: BELAGAVI-591265.

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SAROJA

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HANGARAKI

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Location: HIGH COURT OF KARANTAKA DHARWAD BENCH

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DEEPAK S/O. HARIBHAU KHANOLKAR, AGE: 57 YEARS, OCC: BUSINESS, R/O. H.NO.3398, GONDHALLI GALLI, BELAGAVI-591265, TAL AND DIST: BELAGAVI.

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VAIBHAV S/O. MADHAV KHANOLKAR, AGE: 50 YEARS, OCC: BUSINESS, R/O. FLAT NO.7, ANANDI RESIDENCY, BUDHAWAR PETH, TILAKWADI, TAL AND DIST: BELAGAVI-591265.

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…RESPONDENTS

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(BY SRI. DEEPAK S. KULKARNI, ADV. FOR R1 & R3; R2-SERVED)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT, DIRECTION OR ORDER IN THE NATURE OF CERTIORARI BY QUASHING THE ORDER DATED 03.07.2024 IN ORIGINAL SUIT (O.S)

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2 - NC: 2024:KHC-D:13113 WP No. 104936 of 2024

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NO.271/2021 PASSED BY THE HON’BLE II ADDITIONAL SENIOR CIVIL JUDGE AND CJM, BELAGAVI ON I.A. NO. V PRODUCED AT ANNEXURE-A AND ETC.

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THIS WRIT PETITION, COMING ON FOR PRELIMINARY HEARING , THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE H.P.SANDESH)

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Heard the learned counsel for the petitioners and learned counsel for the respondents.

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The present writ petition is filed against the order of allowing the petitioners to give evidence and produce original agreement of lease deed dated 19.01.2013, in respect of the suit property bearing CTS No.1829, situated at Bapat Galli, Belagavi. The case of the respondents is that the petitioners are tenants and also it is the case that they have entered into agreement of lease on 19.01.2023 and they have taken the original lease agreement and the plaintiffs are having copy of the lease agreement. But the defendants i.e., petitioners herein denied the relationship between the plaintiffs and defendants as landlord and tenant and they have not led any evidence or produced the original lease deed agreement. Hence, prayed the Court to adduce evidence and produce the original lease

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3 - NC: 2024:KHC-D:13113 WP No. 104936 of 2024

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agreement. But it is the contention of the defendants that they are not having any such lease deed dated 19.01.2013. The Trial Court taking into note of detailed discussions made in paragraph Nos.8, 9, 10, 11 and 12 and also taken note of the conduct of the defendants on 21.06.2023, stated that they have no evidence and also stated that the defendants are not actively participating in the trial and they have elected not to lead the evidence which may adversely affect the case of the plaintiffs. The Trial Court also made an observation that the plaintiffs cannot be deprived of their right to substantiate their case by leading proper evidence and hence, given directions to give evidence and produce the original lease agreement. Being aggrieved by the said order, the present writ petition is filed before the Court.

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The learned counsel appearing for the petitioners would vehemently contend that the Trial Court committed an error in directing to lead evidence as well as to produce the lease agreement dated 19.01.2013 and only the same can be produced, if the same is in custody of the defendants/petitioners and the same is not in custody of the defendants/petitioners and the said application is filed at the

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belated stage with an intention to protect the same. The Trial Court also erred in not taking note of the plaintiffs in his crossexamination has admitted that the alleged lease agreement is not a compulsory registerable document, even though the contents of the same as per the photocopy of the same produced warrant’s registration and ought not to have given direction to lead evidence and produce the same and categorically denied the same i.e., not in the custody of the petitioners. Hence, question of producing the same does not arise.

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The learned counsel appearing for the respondents would contend that the rents are paid by way of cash for a period of three years from 2013 to 2016 and thereafter, stopped payment of rent and even not vacated the premises and hence, the present suit is filed against the petitioners and they are squatting on the property without payment of rent.

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Having heard the learned counsel for the petitioners and learned counsel for the respondents and also the learned counsel appearing for the petitioners says that the petitioners are not paying the rent but they are the tenants. Hence, it is

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5 - NC: 2024:KHC-D:13113 WP No. 104936 of 2024

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clear that the petitioners are squatting on the property without payment of rent. When the plaintiffs/respondents are specifically stated that there was an agreement in the year 2013 and the petitioners also not produced any material before the Court for having paid the rent, even though as a tenant. Hence, the Court has to take note of the conduct of the petitioners and no doubt the Trial Court has passed an order to give an evidence and already given direction to produce the document.

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The learned counsel for the petitioners submits that the same is not in their custody and when the plaintiffs/respondents are having the Xerox copy of the document and when the direction was also sought, if the petitioners does not produce the same, the petitioners can rely upon the Xerox copy of the lease agreement before the Trial Court. Even in the grounds of argument in the writ petition itself it is stated that, when they have produced the Xerox copy of the documents to PW.1 categorically suggested that alleged lease agreement is not a compulsory registerable document, even though the contents of the same as per the photocopy of the same produced warrants registration and this ground also

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6 - NC: 2024:KHC-D:13113 WP No. 104936 of 2024

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shows that the petitioners are relying upon the contents of the Xerox document.

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When such being the case, the respondents can rely upon the Xerox documents, if the same is not tendered in the evidence by the petitioners before the Trial Court and the Trial

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Court can also draw an adverse inference against the petitioners herein. When the petitioners contend that the said document is not in their custody, the question of directing the petitioners to produce the same also does not arise. With this

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observation, the writ petition is disposed off.

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Sd/(H.P.SANDESH) JUDGE

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PMP List No.: 1 Sl No.: 29

Shivanand S/O Mallappa Mugalihal v. Avadhut S/O Haribhau Khanolkar

Case brief

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Shivanand S/O Mallappa Mugalihal v. Avadhut S/O Haribhau Khanolkar

Case brief

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What the court decided

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