- 1 - HC-KAR NC: 2025:KHC:52346 WP No. 4831 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF DECEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY WRIT PETITION NO. 4831 OF 2024 (GM-CPC) BETWEEN: SRI SHAKTIVEL K S/O KRISHNA D AGED ABOUT 22 YEARS R/AT 107, 3RD CROSS JANASHAKTHI NAGAR (AMBEDKAR NAGAR) HOSAKEREHALLI BSK 3RD STAGE BENGALURU - 560 085. …PETITIONER (BY SRI KESHAV R AGNIHOTRI, ADV.) AND: 1. SRI D. KRISHNA S/O DHARMALINGAM AGED ABOUT 50 YEARS R/O NO.107, 3RD CROSS JANASHAKTHI NAGAR (AMBEDKAR NAGAR) HOSAKEREHALLI BSK 3RD STAGE BENGALURU - 560 085. 2. SMT. DESHAMMA W/O D. KRISHNA AGED ABOUT 44 YEARS R/O NO.107, 3RD CROSS JANASHAKTHI NAGAR (AMBEDKAR NAGAR) HOSAKEREHALLI BSK 3RD STAGE BENGALURU - 560 085. Digitally signed by NANDINI M S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:52346 WP No. 4831 of 2024 3. SRI BHARATHI W/O SHEKAR AGED ABOUT 48 YEARS R/O NO.131, 3RD CROSS 3RD MAIN, ICE CREAM PARLOUR ROAD, NEW FORTIS HOSPITAL NAGARABHAVI MAIN ROAD BENGALURU - 560 072. …RESPONDENTS (BY SRI B. KESHAVA MURTHY, ADV., FOR R-3; R-1 & R-2 SERVED & UNREPRESENTED) THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS IN OS NO. 1211/2021 ON THE FILE OF THE ADDL. CITY CIVIL JUDGE, BENGALURU (CCH NO. 43).ii) SET ASIDE THE IMPUGNED COMMON ORDER DT. 09/02/2024 VIDE ANNEXURE-J, IN SO FAR AS IA NO. XII PASSED BY THE ADDL. CITY CIVIL JUDGE, BENGALURU (CCH NO. 43), IN OS NO. 1211/2021 FILED U/S 65 (c) OF EVIDENCE ACT AND THUS ALLOW THE ABOVE WP. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY ORAL ORDER 1. Plaintiff is before this Court assailing the order dated 09.02.2024 passed on IA No.XII in O.S.No.1211 of 2021 by the Court of XLII Addl. City Civil & Sessions Judge, Bengaluru. 2. Heard the learned counsel appearing for the parties. - 3 - HC-KAR NC: 2025:KHC:52346 WP No. 4831 of 2024 3. Suit in O.S.No.1211 of 2021 is filed by the petitioner herein before the Jurisdictional Civil Court at Bengaluru seeking the relief of cancellation of the Sale Deed dated 05.09.2011 executed by defendant no.2 in favour of defendant no.3 in respect of the suit schedule property. Plaintiff is the son of defendant nos.1 and 2 who allegedly have executed the aforesaid sale deed in favour of defendant no.3 when plaintiff was a minor. In the said suit, contesting defendant no.3 has entered appearance and filed her written statement. I.A.No.XII was filed on behalf of the plaintiff under Section 65(c) of the Indian Evidence Act, with a prayer to permit the plaintiff to lead secondary evidence on the agreement for sale dated 08.06.2011. The said application was opposed by the contesting defendants and the trial Court by the order impugned has rejected I.A.No.XII. Being aggrieved by the same, the plaintiff is before this Court. 4. Perusal of the material on record would go to show that, plaint was amended and paragraph No.16(a) was permitted to be incorporated after paragraph No.16 in the plaint, wherein a averment is introduced that prior to the Sale - 4 - HC-KAR NC: 2025:KHC:52346 WP No. 4831 of 2024 Deed dated 05.09.2011, defendant nos.1 and 2 had entered into a sale agreement with the defendant no.3 on 08.06.2011 and under the sale agreement, the sale consideration of the suit schedule property was shown as ₹.16,60,000/- whereas the sale deed is executed and registered for a sale consideration of ₹.7,30,000/-. 5. Perusal of the plaint would go to show that the plaintiff has not averred anything about the custody of the alleged sale agreement dated 08.06.2011. It is not stated in the plaint that the original of the sale agreement was either in the possession of defendant nos.1 and 2 or in the possession and custody of defendant no.3. It is relevant to mention here that the aforesaid amendment was brought on record at the stage when PW1 was being cross-examined. Subsequently, I.A.No.XII is now filed with a prayer to permit the plaintiff to lead secondary evidence on the aforesaid sale agreement dated 08.06.2011 by producing the photocopy of the agreement for sale. The Trial Court has rejected the said prayer on the ground that since photocopy of the document is not admissible in evidence, the prayer made in I.ANo.XII cannot be granted. - 5 - HC-KAR NC: 2025:KHC:52346 WP No. 4831 of 2024 6. It is relevant to note here that prior to filing of I.ANo.XII, at no point of time defendant no.3 who is allegedly in possession and custody of the aforesaid agreement for sale dated 08.06.2011 was called upon to produce the original of the said document by issuing notice. Without even calling upon defendant no.3 who allegedly is in possession and custody of the original of the agreement for sale dated 08.06.2011 to produce the document application in I.ANo.XII under Section 65(c) of the Indian Evidence Act has been filed. 7. It is trite that prior to filing an application under Section 65 of the Indian Evidence Act, to permit the party to lead secondary evidence, the foundational facts are required to be established and primarily the person who is in possession and custody of the original of the document is required to be called upon to produce the said document and only thereafter, an application under Section 65 of the Indian Evidence Act can be filed. In the case on hand, no such exercise has been done by the plaintiff. It is also relevant to note here that prior to filing of I.A.No.XII at no point of time, plaintiff / petitioner has pleaded that the original of the agreement for sale is in custody - 6 - HC-KAR NC: 2025:KHC:52346 WP No. 4831 of 2024 of defendant no.3. Under the circumstances, the prayer made in I.A.No.XII could not have been granted by the trial Court. Therefore, the order impugned passed by the trial Court needs no interference. 8. Accordingly, the following:- ORDER The writ petition is dismissed. In view of disposal of this petition, I.A.No.1 of 2025 will not survive for consideration. Sd/- (S VISHWAJITH SHETTY) JUDGE NMS List No.: 1 Sl No.: 15