Sri. Supreeth. K. S. Vs Smt. S. Pramila @ M. N. Pramila Nesargi

SMT NAVARATHNA D/O LATE K C SADASHIVAIAH SINCE DEAD REP BY HER LRS SRI MANJU S/O LATE MAHABALAPPA H/O T. NAVARATHNA AGED ABOUT 80 YEARS R/AT NO. VILLA 106 SOBHA EMERALD, PHASE-2 BEHIND JAKKUR FLYING CLUB JAKKUR, BENGALURU-560 064.

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MRS.SIRI, D/O MANJU D/O LATE SMT.NAVARATHNA AGED ABOUT 40 YEARS R/AT NO. VILLA 106 SOBHA EMERALD, PHASE-2 BEHIND JAKKUR FLYING CLUB JAKKUR, BENGALURU-56 064.

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SRI. K.S.JAYACHANDRA, S/O LATE. K.C.SADASHIVAIAH AGED ABOUT 77 YEARS R/AT NO. 49, 4TH MAIN ROAD CHAMARAJPET, BANGALORE-560018.

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SRI. K.S.SUKUMAR S/O LATE. K.C.SADASHIVAIAH

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AGED ABOUT 73 YEARS AT PRESENT R/A M/S SUKUMAR ENTERPRISES NO 100, 'E' ALLENDALE AVE ALLENDALE, NJ 07401-2017.

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DR. SARVAMANGALA D/O LATE. K.C.SADASHIVAIAH AGED ABOUT 71 YEARS R/ AT NO. 284, 17^TH CROSS 7^TH MAIN, UPPER PALACE ORCHARD BANGALORE- 560078.

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SRI.K.S.SHIVANANDA S/O LATE. K.C.SADASHIVAIAH AGED ABOUT 65 YEARS RESIDING AT NO. 91, 6TH MAIN ROAD 4^TH BLOCK, 3RD STAGE BASAVESHWARA NAGAR BANGALORE- 560079.

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…RESPONDENTS (BY SRI. ANAND MANDAGI SENIOR COUNSEL FOR SRI. SHASHIDHAR BELAGUMBA.,ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 03.09.2024 PASSED IN O.S NO.5976/2011 ON IA NO. 2/24 BY THE COURT OF LVII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE CCH-58 VIDE ANNEXURE-A AND ETC.

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

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CORAM: HON'BLE MR JUSTICE H.T. NARENDRA PRASAD

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ORAL ORDER

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This writ petition under Article 227 of the Constitution of India is filed by the petitioners-plaintiff Nos.1 to 3 challenging the orders dated 03.09.2024 passed on I.A.No.2/2024 and dated 04.02.2025 passed on I.A.No.3/2024 in O.S.No.5976/2011,

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whereby I.A.No.2/2024 filed by defendant No.1 under Sections 58 and 60 of the Bharatiya Sakshya Adhiniyam, 2023 (hereinafter referred to as ‘BSA, 2023’) has been allowed and I.A.No.3/2024 filed by the plaintiffs under Section 114 read with Order XLVII Rule 1 of CPC has been dismissed.

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The plaintiffs filed the suit for partition and separate possession. After service of summons, defendant No.1 appeared through counsel and filed the written statement. On the basis of the pleadings of

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the parties, the issues have been framed. After completion of evidence of plaintiffs and when the

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matter was posted for defendants’ evidence, defendant No.1 filed an application seeking permission

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to mark the xerox copy of the rectification of affidavit filed before the State Election Commission as Exs.D.225, 226 and 227. The plaintiffs objected, stating that the xerox copies cannot be allowed to be marked. After hearing the parties, the trial Court by order dated 03.09.2024 allowed the application filed

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by defendant No.1. Being aggrieved by the order dated 03.09.2024, the plaintiffs filed I.A.No.3/2024 seeking for review of the order dated 03.09.2024 passed on I.A.No.2/2024. The trial Court by order dated 04.02.2025 dismissed the application filed by the plaintiffs. Being aggrieved by the orders dated 03.09.2024 and 04.02.2025 passed by the trial Court on I.A.No.2/2024 and I.A.No.3/2024, respectively, the petitioners/plaintiffs are before this Court in this writ petition.

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Learned counsel appearing for the petitioners has contended that the documents, which are sought to be marked by defendant No.1 is xerox copy of affidavit filed before the Election Commission. Under BSA, 2023, xerox copy cannot be permitted to be marked as secondary evidence. He further contended that the Election Commissioner has been examined as CW-2. In his evidence, he has deposed that these documents are not available in the original records. Under these circumstances, the xerox copy cannot be permitted to be marked as secondary evidence. In support of his contentions, he has relied upon the judgment of Apex Court in the cases of J.Yashoda v. K.Shobha Rani reported in (2007) 5 SCC 730 , Ram Suresh Singh v. Prabhat Singh Alias Chhotu Singh and Another reported in (2009) 6 SCC 681 and Shalimar Chemical Works Limited v. Surendra Oil and Dal Mills

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(Refineries) and Others reported in (2010) 8 SCC 423. Hence, he sought for allowing the writ petition.

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Learned senior counsel appearing for respondents

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has contended that plaintiff No.1 examined himself as PW-1 and got marked Ex.P121, 122, 123 and 124, which are documents downloaded from the website of Election Commission. On the basis of these documents, plaintiff No.1 has objected for marking of the affidavit filed by defendant No.1 before the Election Commission on two grounds; (i) affidavit is xerox copy and (ii) on the ground that the affidavit is for seeking rectification of Ex.P121. In fact, Ex.P121 marked by PW-1 itself is a copy downloaded from the website. Even the rectification affidavit, which was produced by defendant No.1 is office copy which was submitted to the Election Commission. Under Rule 94 of the Conduct of Elections Rules, 1961, if there is no dispute in respect of the election, the Election papers

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will be destroyed after one year. Just because it was

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not available with the office of Election Commission,

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the defendant cannot be denied to mark the xerox copy, that too, subject to objection. He further contended that even by marking the xerox copy, it will not cause prejudice to the rights of the plaintiffs and they can raise all objections at the time of the final argument. In support of his contentions, he relied upon the judgment of this Court in the case of K. Anjaneya Setty v. K.H.Rangiah Setty in CRP No.67/1999 disposed of on 03.07.2002 following the judgment of Apex Court in the case of Bipin shantilal Panchal vs. State of Gujarat and Another reported in (2001) 3 SCC 1. Hence, he sought for dismissal of the writ petition.

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Heard the learned counsel for the parties. Perused the petition papers.

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It is not in dispute that the plaintiffs have filed

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the suit for partition and separate possession in O.S.No.5976/2011. Plaintiff No.1 has been examined as PW-1 and got marked Exs.P121, 122, 123 and 124, which are the documents downloaded from the website of Election Commission. When defendant No.1 has been examined as DW-1, he wants to mark the rectified affidavit filed before the Election Commission. Since that is the Xerox copy, the plaintiffs have objected the same on the ground that, without comparing the xerox copy with the original, it cannot be permitted to be marked. The trial Court has permitted to mark the documents subject to the objections. This Court in CRP No.67/1999 following the judgment and Apex court has held as follows:

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“26. The argument that if such orders are allowed to be challenged in revision and in such petitions if order of stay is granted in respect of further proceedings of the suit, it would drag on

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the proceedings endlessly and therefore the revision is held to be not maintainable on the premise that such order does not amount to "case decided", is concerned, the very object is defeated if after the final disposal of the suit, the Appellate Court were to find fault with such orders and consequently orders for remand of the matter to the Trial Court, the duration taken for disposal of such matters would be enormous. Moreover when the matters are remanded the original parties may not be alive and the very object would be frustrated. The said complaint can be remedied by not admitting the revision petitions and by ordering notice to the Counsels who are appearing in the Court below and dispose of such revision petitions expeditiously at the admission stage itself. These problems are agitating the legal fraternity for quite some time and merely because we are unable to find a practical solution it cannot be said that the revision petition should not be entertained at all. In fact the Supreme Court taking note of these problems has suggested a solution by prescribing the following procedure in a recent decision in the case of Bipin Shantilal Panchal v. State of Gujarat and Anr. MANU/SC/1529/2001: AIR

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2001 SC 1158: MANU/SC/1529/2001: (2001)3 SCC 1 ha held as under.--

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"12. It is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the Court does not proceed further without passing order on such objection. But the fall out of the above practice is this: Suppose the Trial Court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the Appellate or Revisional Court, when the same question is recanvassed, could take a different view on the admissibility of that material in such cases the Appellate Court would be deprived of the benefit of that evidence, because that was not put on record by the Trial Court. In such situation the higher Court may have to send the case back to the Trial Court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices

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created by ourselves. Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or remoulded to give way for better substitutes which would help acceleration of trial proceedings.

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13. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the Trial Court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the Court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. However, we make it clear that if the

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objection relates to deficiency of stamp duty of a document the Court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed. 14. The above procedure, if followed, will have two advantages. First is that the time in the Trial Court, during evidence taking stage, would not be wasted on account of raising such objections and the Court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior Court, when the same objection is recanvassed and reconsidered in appeal or revision against the final judgment of the Trial Court, can determine the correctness of the view taken by the Trial Court regarding that objection, without bothering to remit the case to the Trial Court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses,

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15. We, therefore, make the above as a procedure to be followed by the Trial Courts whenever an objection is raised regarding the admissibility of any material or any item of oral evidence".

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In the case on hand, the specific case of the defendant No.1 is that the xerox copy of rectified affidavit produced by defendant No.1 is the office copy. The original has been submitted to the Election Commission of India on 21.04.2008. CW1 in his evidence submitted that as per Rule 94 of the Election Conduct Rules 1961, if there is no dispute in respect of election, the papers related to election will be destroyed taking permission from Election

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Commissioner.

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Permitting the defendant No.1 to mark xerox copy of rectified affidavit dated 21.04.2008, is subject to the objection. The plaintiffs may raise all their objections, including the admissibility of the

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document, at the time of arguments. Permitting the document to be marked, that itself, does not mean that the document has been admitted into evidence. The trial Court can consider all these aspects while passing the judgment. Therefore, permitting defendant No.1 (DW-1) to mark the xerox copy will not affect the plaintiffs’ rights at this stage.

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9. In the judgment relied upon by the learned counsel for the petitioners in the case of “In Re: To Issue Certain Guidelines Regarding Inadequacies and Deficiencies in Criminal Trials v. State of Andhra Pradesh and Ors.” reported in 2021 (10) SCC 598 , the judgment of the Apex Court rendered in the case of ‘Bipin Shantilal v.State of Gujarat’ reported in 1998(9) SCC 315 is not over-ruled and it is only modified. The judgment in ‘Bipin Shantilal’ (supra) is not applicable regarding the objections on relevancy of questions in the course of examination of witnesses. However, as

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regards the admissibility and relevancy of the documents, the judgment i.e. ‘ Bipin Shantilal’ (supra) holds good. This issue was also considered by the High Court of Hyderabad in the latest judgment in the case of Palakurthi Raja Gopala Rao v. Chaluvadi Krishna Prasada Rao reported in 2025 SCC Online AP 646. Paragraph No.7 of the said judgment is relevant and the same is extracted hereunder:

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“7. The above decision, though arising under a criminal case, was consistently quoted with approval by Hon'ble Supreme Court in subsequent reported decisions i.e State v. Navjot Sandh and Dhanpat v. Sheo Ram. However, it was opined that the above decision would not be applicable regarding objections on relevancy of questions in the course of examination of witnesses so that irrelevant and vague questions are brought into record by Hon'ble Supreme Court in Criminal Trials Guidelines Regarding Inadequacies and Deficiencies In re. However, as regards the admissibility and relevancy of the documents, the above quoted judgment holds good.

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In view of the above, there is no error or illegality in the order passed by the trial Court. No good grounds are made out to exercise the supervisory jurisdiction vested under Article 227 of the Constitution of India. Accordingly, the writ petition is dismissed .

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All pending applications, if any, do not survive for consideration and the same are also disposed of.

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Sd/(H.T. NARENDRA PRASAD) JUDGE

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HA

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List No.: 1 Sl No.: 11

Sri. Supreeth. K. S. v. Smt. S. Pramila @ M. N. Pramila Nesargi

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Sri. Supreeth. K. S. v. Smt. S. Pramila @ M. N. Pramila Nesargi

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