- 1 - HC-KAR NC: 2025:KHC:27991 WP No. 14169 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO. 14169 OF 2020 (GM-CPC) BETWEEN: 1. TARA N SIYAL W/O LEELA NEELAM SIYAL AGED ABOUT 47 YEARS RESIDENT OF 188, 2ND FLOOR, NARAYAN PILLAI STREET, BHARATHINAGAR BENGALURU-560001. 2. KARAN SIYAL N S/O LEELA NEELAM SIYAL AGED ABOUT 23 YEARS RESIDENT OF 188, 2ND FLOOR, NARAYAN PILLAI STREET, BHARATHINAGAR BENGALURU-560001. 3. N SURAJ SIYAL S/O LEELA NEELAM SIYAL AGED ABOUT 19 YEARS RESIDENT OF 188, 2ND FLOOR, NARAYAN PILLAI STREET, BHARATHINAGAR BENGALURU-560001. …PETITIONERS (BY SRI. UMESH MOOLIMANI, AND SRI S.V. PRAKASH, ADVOCATES) Digitally signed by RUPA V Location: High Court of karnataka - 2 - HC-KAR NC: 2025:KHC:27991 WP No. 14169 of 2020 AND: PUSHPA SIYAL W/O LATE B.P. SIYAL AGED ABOUT 70 YEARS R/AT 188, AND 190 NARAYANA PILLAI STREET, BHARATHINAGAR BENGALURU-560001 SINCE DEAD BY LRs… 1. NAVEEN SIYAL AGED ABOUT 45 YEARS S/O LATE PUSPHA SIYAL R/AT #190, NARAYANA PILLAI STREET BHARATHINAGAR BENGALURU-560001. 2. LOKESH SIYAL AGED ABOUT 42 YEARS S/O LATE PUSHPA SIYAL R/AT #190, NARAYANA PILLAI STREET BHARATHINAGAR BENGALURU-560001. 3. SHIKHA KOTHARI W/O SANJAY KOTHARI AGED ABOUT 49 YEARS R/O HITWARI, BHAJI MANDI NEAR JAIN MANDIR NAGPUR. 4. HEMALATHA NATA W/O ANKUR NATA AGED ABOUT 47 YEARS C/O PRATHAM OPTICIANS NO.1/7, FRANCIS JOSEPH STREET - 3 - HC-KAR NC: 2025:KHC:27991 WP No. 14169 of 2020 BROADWAY, GEORGE TOWN CHENNAI-600 108, TAMIL NADU. 5. MANORAMMA KOTHARI W/O KAMALESH KOTHARI KRISHNA JAYAM APARTMENTS NO. 45, 1ST MAIN ROAD, MARUTI EXTENSION MALLESHWARAM BENGALURU-560 003. …RESPONDENTS (BY SRI.G.R. MOHAN, ADVOCATE) THIS W.P. FILED PRYING TOSET ASIDE THE ORDER DTD.23.9.2020 PASSED BY THE COURT OF LEARNED V ADDITIONAL SMALL CAUSE JUDGE AND XXIV ADDITIONAL CITY METROPOLITAN MAGISTRATE MAYOHAL UNIT BENGALURU (SCCH 20) ON IA NO.20 AND 21 AND ALSO ON THE APPLICATION SEEKING PERMISSION TO LEAD SECONDARY EVIDENCE IN S.C.NO.1522/2018 PRODUCED AS ANNEXURE-L AND M RESPECTIVELY TO THE W.P. AND CONSEQUENTLY REJECT THE IA NO.20 AND 21 AND INTERLOCUTORY APPLICATION SEEKING PERMISSION TO LEAD SECONDARY EVIDENCE MADE BY THE PLAINTIFF RESPONDENT IN S.C.NO.15221/2018 THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL ORAL ORDER This petition is filed challenging the order dated 23.09.2020 passed on I.A.Nos.20 and 21 in S.C.No.15221/2018 by the V Additional Small Cause Judge and - 4 - HC-KAR NC: 2025:KHC:27991 WP No. 14169 of 2020 XXIV Additional City Metropolitan Magistrate, Mayohall Unit, Bengaluru. 2. Sri Umesh Moolimani, learned counsel appearing for the petitioners submit that the respondent filed a suit against the petitioners for eviction and other reliefs on the ground that the petitioners are in possession of the suit scheduled property based on the Rental Agreement dated 15.04.2013. It is further submitted that the petitioners filed detailed written statement denying the Rental Agreement dated 15.04.2013 by contending that the petitioners are the daughter-in-law and grand childrens of the respondent and they are residing in the suit schedule premises from the ages along with her husband and after the demise of her husband they continued to reside in the said premises and the suit schedule property is a family property. Question of landlord and tenant relationship between the petitioners and respondent does not arise, and sought for dismissal of the plaint. 3. The respondent through General Power of Attorney Holder adduced evidence and thereafter filed applications, I.A.Nos. 19, 20 and 21. The Applications were filed seeking - 5 - HC-KAR NC: 2025:KHC:27991 WP No. 14169 of 2020 prayer to re-open the case, to recall PW1 for further examination and to lead secondary evidence in respect of Document No. 1 i.e. photocopy of the rental agreement dated 15.04.2013. The said applications were allowed by the trial Court under the impugned orders, both Orders dated 23.09.2020. It is submitted that the plaint averments at Para 14 indicates that, the plaintiff has produced photocopy of the Rental Agreement and there was no whisper with regard to the production of the Original Rental Agreement. However, in the applications accompanying the affidavits, it is stated that the original of the agreement is in the custody of the defendant. The trial Court, without considering any of the aspects, allowed the applications. 4. It is submitted that Order VII Rule 14 mandates that the plaintiff is required to produce the documents relied by him along with the plaint. In the instant case, the plaintiff has not produced the documents as required under the law, and not stated with regard to the possession of the original document in the plaint. However, the trial Court without appreciating any of these aspects and without understanding the scope of Section 65 of the Evidence Act, has allowed the applications under the - 6 - HC-KAR NC: 2025:KHC:27991 WP No. 14169 of 2020 impugned order by re-opening the case allowing PW1 to lead further evidence and to mark the agreement of sale as secondary evidence. 5. It is further submitted that the trial Court had relied on the decision of the Hon'ble High Court of Madhya Pradesh. The said decision clearly indicates the requirements to be complied while allowing an application for secondary evidence, and none of the requirements are found in the reasoning of the trial Court under the impugned order. Hence, he seeks to allow the petition. 6. Per contra, Sri G.R. Mohan, learned counsel appearing for the respondent submits that, the trial Court under the impugned order at para 11 has clearly recorded the finding that the document in question is a signed document by the plaintiff and the defendant no. 1, and it is in the custody of the defendant no. 1. Hence, it could not be produced. 7. It is submitted that mere production of the document is not amounting to accepting the evidence on record. The plaintiff is required to prove the contents of the document. Hence there cannot be any opposition for production - 7 - HC-KAR NC: 2025:KHC:27991 WP No. 14169 of 2020 of the secondary evidence. It is submitted that, before granting the interim order by this court, the subject document was already marked and as per the direction of the trial court, the plaintiff has made good the deficient stamp duty and penalty, which also can be found from the order sheet. Hence he seeks to dismiss the petition. 8. I have heard the arguments of the learned counsel for the petitioners, learned counsel for the respondent, and meticulously perused the material available record. 9. The pleadings and material on record indicate that the respondent filed S.C. No.15221/2018 for relief of eviction and arrears of rent etc. The material on record indicates that the plaintiff is the mother-in-law and defendant no. 1 is the daughter-in-law and defendant no. 2 and 3 are the grandchildren of the plaintiff. The entire premise of the plaint is that the defendants occupied the suit schedule property as a tenancy under the rental agreement dated 15.04.2013. The petitioners/defendants denied the assertion made in the plaint by categorical statement that the defendants are the family members and they are in possession of the suit schedule - 8 - HC-KAR NC: 2025:KHC:27991 WP No. 14169 of 2020 property from ages. It is contended that the defendants no. 1. 2, 3 and the husband of defendant no. 1, Neelam Siyal, were residing in the same premises as the suit schedule property is a family property. 10. Be that as it may, on behalf of the plaintiff, PW1 has been examined. Thereafter, the plaintiff filed applications in IA Nos.19 to 21 to reopen the case, to recall PW1 for further examination and marking of Document No. 1 and to lead secondary evidence in respect of Document No. 1, the Photocopy of the rental agreement dated 15.04.2013. The trial Court, overruling the objection filed by the petitioners, allowed all the applications by two separate orders, both dated 23.09.2020. 11. Order 7 Rule 14 of CPC, 1908, mandates that production of documents on which the plaintiff sues or relies. The Karnataka High Court amendment of Rule 14 reads as under: "14.(1) The plaintiff shall endorse on the plaint or annex thereto a list of documents required to be produced or disclosed as hereinafter provided in this rule - 9 - HC-KAR NC: 2025:KHC:27991 WP No. 14169 of 2020 (2) Where the plaintiff sues upon a document in his possession or power, he shall produce it in Court when the plaint is presented, and shall at the same time deliver the document or a copy thereof to be filed with the plaint. (3) Where the plaintiff relies on any other documents (whether in his possession or power or not) as evidence in support of his claim, he shall enter such documents in the list above referred to showing separately which of the documents in his possession or power and which are not, which of the documents in his possession or power he has produced with the plaint and which are not so produced. In regard to any such documents which are not produced, the list shall contain a statement of the reason for their non-production and the steps which the plaintiff has taken or will take to produce them or cause their production." 12. The aforesaid Rule indicates that if the plaintiff sues or relies upon the document in his possession or power, in support of his claim, he shall enter such documents in a list and shall produce it in the Court when the plaint is presented and shall at the same time deliver the document or a copy thereof to be filed with the plaint. Further sub-Rule 3 of Rule 14 provides that where the plaintiff relies on any document whether in his possession or power or not, as evidence in support of his claim, he shall enter such document in the list referred above, showing separately which documents are in his - 10 - HC-KAR NC: 2025:KHC:27991 WP No. 14169 of 2020 possession and power and which are not. The list also shall contain the statement of reason for non-production and the steps which the plaintiff has taken or will take to produce them or cause their production. 13. In the case on hand the plaintiff at Para 14 has stated that plaintiff has herewith produced photocopy of the rental agreement dated 15.04.2013 and marked as document No.1. However, there is no statement or averment made in the para 14 of the plaint with regard to the possession of the Rental Agreement. In other words, the plaintiff has failed to lay the foundation for production of the secondary evidence. The petitioner is required to state at the first instance if he is not in possession of the relied document as per Rule 14 of Order VII of CPC. The said fact is absent in the case on hand. 14. Further, the applications filed by the Plaintiff, a vague assertion is made in the affidavit filed by the GPA holder of the plaintiff, that the original was in the custody of the defendant, late Neelam Siyal and he possesses only photocopy with a signature. In my considered view, the said assertion is without any basis as the agreement which is relied by the - 11 - HC-KAR NC: 2025:KHC:27991 WP No. 14169 of 2020 plaintiff ought to have contained the clause to the aforesaid effect. The trial Court though relied on the decision of the Madhya Pradesh High Court at Para 10 of the impugned order. The same has not been followed while allowing the applications. 15. The relevant extract of the impugned order of the trial Court is extracted herein below: "10. Further, the counsel for the defendant has also relied upon a judgment of the Hon'ble Appellate Court, in Pravin Vs. Ghanshyam of the Hon'ble High Court of Madhya Pradesh, wherein it is held that "the per-conditions for leading secondary evidence are that such original documents could not be produced by the party relied upon such documents in spite of best efforts, unable to produce the same, which is beyond their control. The party sought to produce secondary evidence. Unless established that the original is destroyed or is being deliberately whithheld by the party in respect of that document sought to be used, secondary evidence in respect of that document cannot be accepted". This judgment well suits to the facts and circumstances of the instant case and very much support the case of the plaintiff." 16. The aforesaid decision of the Madhya Pradesh High Court clearly states that the preconditions to lead secondary evidence are that, despite making best efforts, the party could - 12 - HC-KAR NC: 2025:KHC:27991 WP No. 14169 of 2020 not produce, unable to produce the same, which is beyond its control. These requirements are required to be properly pleaded and required to be established by cogent and acceptable material before the court. The party seeking to produce secondary evidence must establish reasons for non- production of primary evidence first and unless it is established that the original is destroyed or is been deliberately withheld by the parties in respect of that documents sought to be used, the secondary evidence cannot be allowed to be produced. 17. In the case on hand, there is no specific averment in the plaint or even in the affidavits accompanying the applications that the original rental agreement is with the defendant and deliberately it is withheld by her or that the plaintiff has made best efforts to secure the same, despite that she failed. In other words, the plaintiff is required to lay a proper foundation for placing the secondary evidence before the court by proper pleadings and evidence and proper material, to prove that the plaintiff is unable to produce the primary evidence. Such a requirement is absent in the case on hand. - 13 - HC-KAR NC: 2025:KHC:27991 WP No. 14169 of 2020 18. Section 65 of the Indian Evidence Act makes it very clear in cases which secondary evidence relating to document may be given, none of the conditions mentioned in Section 65 are available in the case on hand. Hence, in my considered view the trial Court has committed grave error in recording the finding that there is a signature of the party on the instrument, and the trial Court on mere presumption that it is in the custody of the defendant has proceeded to allow the application. The secondary evidence cannot be allowed by mere argument. 19. The Hon'ble Supreme Court in the case of H. Siddique (dead) by LRs v. M. Ramalingam,1 at Para 12 held as under: ”12. The provisions of Section 65 of the 1872 Act provide for permitting the parties to adduce secondary evidence. However, such a course is subject to a large number of limitations. In a case where the original documents are not produced at any time, nor has any factual foundation been laid for giving secondary evidence, it is nor permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a 1 (2011) 4 SCC 240 - 14 - HC-KAR NC: 2025:KHC:27991 WP No. 14169 of 2020 document is inadmissible, until the non-production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law. The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. (Vide Roman Catholic Mission v. State of Madras [AIR 1966 SC 1457], State of Rajasthan v. Khemraj [(2000) 9 SCC 241: AIR 2000 SC 1759], LiC v. Ram Pal Singh Bisen [(2010) 4 SCC 491 : (2010) 1 SCC (L&S) 1072 : (2010) 2 SCC (Civ) 191] and M. Chandra v. M. Thangamuthu [(2010) 9 SCC 712 : (2010) 3 SCC (Civ) 907])." [Emphasis supplied] 20. Keeping in mind the enunciation of law laid off by the Hon'ble Supreme Court and considering the pleading and the averment in the affidavits accompanying the applications, I am of the considered view that the plaintiff has failed to lay a proper foundation for production of the secondary evidence, and the Trial Court has committed a grave error in allowing such applications by ignoring the requirements of Section 65 of the Indian Evidence Act. - 15 - HC-KAR NC: 2025:KHC:27991 WP No. 14169 of 2020 21. The contention of the learned counsel for the respondent that before granting of the interim order by this Court, the document is already marked and the plaintiff has made good the stamp duty and penalty and the document itself has no consequences while deciding the application for production of secondary evidence. 22. For the aforesaid reasons, I proceed to pass the following: ORDER i) Writ Petition is allowed. ii) Impugned orders dated 23.09.2020 passed on I.A.Nos. 19, 20 and 21 in S.C.No.15221/2018 by the V Additional Small Cause Judge and XXIV Additional City Metropolitan Magistrate, Mayohall Unit, Bengaluru are set aside, and consequently, I.A.No.19, 20 and 21 are rejected. Sd/- (VIJAYKUMAR A. PATIL) JUDGE HR