HC-KAR NC: 2026:KHC:7987 WP No. 12721 of 2021 - 1 - IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF FEBRUARY, 2026 BEFORE THE HON'BLE MS. JUSTICE TARA VITASTA GANJU WRIT PETITION NO.12721 OF 2021 (GM-CPC) BETWEEN: SRI. M.VENKATESH S/O. LATE VENKATARAMANAPPA @ BODAPPA, AGED ABOUT 65 YEARS, RESIDING AT RAMASWAMYPALYA, HAMLET OF NAGANAYAKANA KOTE, ANUGONDA HALLI HOBLI, HOSAKOTE, BENGALURU RURAL DISTRICT-562 114. …PETITIONER (BY SRI. OMKARA.N., ADVOCATE) AND: 1. SRI. R.R.MANOHAR S/O. M.M.RAMASWAMY, AGED ABOUT 66 YEARS, 2. SRI. R.R.ANAND S/O. M.M.RAMASWAMY, AGED ABOUT 63 YEARS, 3. SRI. R.R.HARINDRA S/O. M.M.RAMASWAMY, AGED ABOUT 59 YEARS, 4. SMT. JAYAMMA W/O. LATE RANGAIAH, AGED ABOUT 96 YEARS, HC-KAR NC: 2026:KHC:7987 WP No. 12721 of 2021 - 2 - 5. SRI. R.NAGARAJ S/O. LATE RANGAIAH, AGED ABOUT 76 YEARS, 6. SRI. R.SRINIVASALU S/O. LATE RANGAIAH, AGED ABOUT 74 YEARS, 7. SMT. JAYAMMA W/O. LATE R.BALARAJ, MAJOR, ALL ARE RESIDING AT RAMASWAMYPALYA, HAMLET OF NAGANAYAKANA KOTE, ANUGONDA HALLI HOBLI, HOSAKOTE-562 114, BANGALORE RURAL DISTRICT. …RESPONDENTS (BY SRI.M.V.CHANDRASHEKARA REDDY., ADVOCATE FOR C/R3, R1 & R2; V/O DTD: 23.07.2021, NOTICE TO R4 TO R6 ARE DISPENSED WITH; SRI. NATARAJ BABA.K., ADVOCATE FOR R7) THIS WP IS FILED UNDER ARTICLES 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 6.7.2021 IN O.S.NO.398/1992 ON THE FILE OF PRINCIPAL CIVIL JUDGE AND JMFC, AT HOSKOTE A COPY OF WHICH IS PRODUCED AT ANNEXURE-H AND ALLOW I.A.NOS.31 TO 33 IN O.S.NO.398/1992 AS PRAYED FOR. THIS PETITION IS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: ,.. CORAM: HON'BLE MS. JUSTICE TARA VITASTA GANJU HC-KAR NC: 2026:KHC:7987 WP No. 12721 of 2021 - 3 - ORAL ORDER 1. The present petition seeks to challenge an order dated 06.07.2021 in O.S.No.398/1992, passed by the Principal Civil Judge & JMFC, Hoskote [hereinafter referred to as the “Impugned order”]. By the Impugned Order, three applications, I.A.Nos.31 and 32 under Section 151 of CPC and I.A.No.33 under Order 18 Rule 17 read with Section of 151 of CPC, filed by the appellant/plaintiff to permit him to recall P.W.1 have been dismissed. 2. The learned counsel for petitioner has submitted that the learned Trial Court erred in refusing to permit the marking of the certified copy of the registered Will. It is contended that section 68 of the Indian Evidence Act requires proof of execution through an attesting witness, but does not prohibit marking a certified copy of the Will through the beneficiary. Further, it was contended that since the original Will could not be traced, the petitioner obtained a certified copy from the Sub-Registrar. The HC-KAR NC: 2026:KHC:7987 WP No. 12721 of 2021 - 4 - refusal to mark the document would cause serious prejudice and deny the petitioner a fair opportunity to prove his title and establish his case. 2.1 Learned counsel further submitted that the registered Will is a vital and material document for adjudicating the petitioner’s claim of ownership. When the original is not traceable and steps have been taken to secure a certified copy from the Sub-Registrar, the Trial Court ought to have permitted its production and marking, leaving the question of proof and evidentiary value to be considered at the stage of appreciation of evidence. 3. Learned counsel for the respondents/defendants submits that the suit in which these applications were filed, was originally filed in the year O.S.No.452/1990 and thereafter renumbered as O.S.No.398/1992. He further submits that the suit was at the stage of defendants’ evidence when these three applications were filed to reopen the case of the HC-KAR NC: 2026:KHC:7987 WP No. 12721 of 2021 - 5 - petitioner/plaintiff, to recall PW1 for further examination and to mark the certified copy of the Will dated 13.06.1998. 3.1. Learned counsel for the respondents/defendants further submits that this is not the first time the petitioner/plaintiff has attempted to mark this document. Even previously, the petitioner/plaintiff had filed application under Order 7 Rule 17(2) read with Rule 85(1)(C) of the Karnataka Civil Rules of Practice,1967, to mark the Will dated 13.06.1984. He submits that this application came to be rejected by the learned Trial Court by its order dated 31.10.2017. The petitioner/plaintiff thereafter challenged the rejection of the application by filing a writ petition before this Court in W.P.No.52788/2017 captioned Smt.Poojamma Vs. M.M.Ramaswamy(dead) by R.R.Manohar and others. By an order dated 11.12.2017, a Co-ordinate Bench of this Court dismissed the petition as withdrawn with the liberty to file an appropriate application before the Trial Court for production of the certified copy of HC-KAR NC: 2026:KHC:7987 WP No. 12721 of 2021 - 6 - the Will. However, he submits that no such application was filed thereafter nor has any certified copy been produced and in fact the suit of the plaintiff came to be dismissed for non-prosecution. 3.2. Subsequently, after the suit was restored, the petitioner/plaintiff filed three applications being IA Nos.31 to 33, which in essence also sought to re-agitate the issue of marking of the Will dated 13.06.1984, which had already been dealt with by the learned Trial Court in its order dated 31.10.2017 and the said order has already attained finality. 3.3. Learned counsel for the respondents/defendants lastly submits that the suit has now been pending for 36 years on account of these dilatory tactics of the petitioner/plaintiff. 4. As stated above, this Court by its order dated 15.07.2021 has stayed the proceedings before the learned Trial Court. Given the fact that the suit filed before learned Trial Court more than 36 years ago and this Court has by its order dated:15.07.2021 has directed that the HC-KAR NC: 2026:KHC:7987 WP No. 12721 of 2021 - 7 - proceedings before learned Trial Court shall remain stayed, which Order has continued as is till today. In view thereof, this Court deems it apposite to hear and decide the petition today. 5. As stated above, three applications have been filed. IA Nos.31 to 33 the prayers of which are almost identical in the following terms: “I.A.No.31-APPLICATION ON BEHALF OF PLAINTIFF UNDER SECTION 151 OF CODE OF CIVIL PROCEDURE For the reasons sworn to in the accompanying affidavit, the plaintiff prays that this Hon’ble Court may be pleased to permit the plaintiff to mark certified copy of the registered Will dated 13.6.1984 executed by late Sri Venkataramanappa @ Bodappa in favour of the plaintiff in the ends of justice.” I.A.No.32-APPLICATION ON BEHALF OF PLAINTIFF UNDER SECTION 151 OF CODE OF CIVIL PROCEDURE For the reasons sworn to in the accompanying affidavit, the plaintiff prays that this Hon’ble Court may be pleased to reopen the above case and post the case for chief evidence of the PW-1 to mark in evidence certified copy of the registered Will dated 13.6.1984 executed by late Sri Venkataramanappa @ Bodappa in favour of the plaintiff in the ends of justice. I.A.No.33-APPLICATION ON BEHALF OF PLAINTIFF UNDER ORDER 18 RULE 17-A R/W SECTION 151 OF CODE OF CIVIL PROCEDURE HC-KAR NC: 2026:KHC:7987 WP No. 12721 of 2021 - 8 - For the reasons sworn to in the accompanying affidavit, the plaintiff prays that this Hon’ble Court may be pleased to recall PW-1 for the purpose of marking certified copy of the registered dated 13.6.1984 executed by late Sri Venkataramanappa @ Bodappa in favour of the plaintiff in the ends of justice.” [Emphasis supplied] [[] 6. A perusal of the above shows that all these applications have been filed in respect of registered Will dated 13.06.1984 executed by Late Sri Venkataramanappa @ Bodappa in favour of the petitioner/plaintiff. Although IA No.7 which was filed previously before the learned Trial Court was not placed on record by the petitioner/plaintiff, a hard copy of the same has been handed across by the learned counsel for the respondents/defendants during the course of the hearing today along with a copy of the order of the Trial Court dated 31.10.2017. A perusal of this application shows that the prayers in this application were for summoning of an official from the office of the Sub- Registrar for production of the books with respect to the Will dated 13.06.1984 and marking of the same for HC-KAR NC: 2026:KHC:7987 WP No. 12721 of 2021 - 9 - identification. The paragraph Nos.2 and 4 of the affidavit annexed to this application are reproduced below: “2. I submit the Hon’ble Court was pleased to allow my application for summoning the sub-registrar Hoskote for production of the book with respect to Will dated 13.06.1984 and the original Thumb impression of the testator. 4. I submit that, marking of the said compared attested copy of the original by the Hon’ble Court for the purpose of identification is very much important and hence the accompanying application.” 7. The learned Trial Court after examining the application passed an order on 31.10.2017 dismissing the application in the following terms: “Heard Both side. On perusal of record the Hon'ble court passed a order an application u/o 16 rule 6 r/w 151 of CPC on 3.7.2017. As per the order the sub register of Hosakote. Present before the court and produced the certified copy of registered will and register mantained in his office. These documents are public documents. In the public documents or register maintained in public office is no provision to mark the sign or Thumb impression. And also neither provision to mark the signature or thumb impression in the public documents or register maintained in public office, nor in certified or photo copy and also these documents are not compared for original will. And the thumb marking of impression not maintainable under any law. Morever these documents produced by public officer is Regişter documents. Therefore u/s 77 of evidence Act. Such certified copies may be produced the proof of the contents of the public documents. And u/s 80 of this act. HC-KAR NC: 2026:KHC:7987 WP No. 12721 of 2021 - 10 - Whenever any documents is produced before any court purporting to be a record or memorandum of the evidence. And the court shall presume that the documents as genuine that any statement as to the circumstances under which it was taken purporting to be made by the person signing it are true unless and until the contrary is proved. Therefore I am satisfied that the no grounds made out by the plaintiff as prayed. Hence the following Order The application filed by under Order 7 Rule 17(2) of CPC is hereby dismissed with cost of Rs.500/-.” [Emphasis Supplied] 8. The said order was challenged before this Court in WP No.52788/2017 and the said petition was dismissed as withdrawn with liberty to the petitioner/plaintiff to file an appropriate application before the learned Trial Court for production of certified copy of the Will. The order further made it clear that if such an application is filed, it was open for the defendants to oppose the same and the Trial Court would consider the same and pass orders in accordance with the law. The order dated 11.12.2017 passed by this Court in WP.No.52788/2017 being brief, is extracted below: “After arguing the matter for sometime, learned counsel for the petitioners files memo seeking to withdraw the writ petition with liberty to file an appropriate application HC-KAR NC: 2026:KHC:7987 WP No. 12721 of 2021 - 11 - before the Trial Court for production of certified copy of the Will. 2. Memo is taken on record. 3. Writ petition is dismissed as withdrawn. 4. It is made clear that, if such an application is filed by the petitioners/plaintiffs before the Trial Court, it is open for the defendants to oppose the same with regard to maintainability of the application and the Trial Court shall consider the same and pass orders, in accordance with law.” 9. It is not disputed by learned counsel for the petitioner/plaintiff that no application was filed thereafter for a period of about 4 years. The memo of list of dates and events annexed to this petition sets out the fact that the petitioner/plaintiff has only filed the application after a delay of almost four years to recall and re-examine as has been stated above. The learned Trial Court examined not only the history of the case and the previous application but gave a finding that a certified copy of the registered Will can be produced as secondary evidence in terms of Section 8 of the Evidence Act, 1872 and the certified copies of the Will can also be marked by examining an attesting witness. The relevant extract of the Impugned Order is set out below. HC-KAR NC: 2026:KHC:7987 WP No. 12721 of 2021 - 12 - “Learned advocate for the plaintiff has relied upon the decisions of Hon'ble Supreme Court in Civil Appeal No.1889/2020 dated: 13.05.2020 and decision of Hon'ble High Court reported in AIR 2006 Kar 95 and submitted that even certified copy of will can be produced as secondary evidence and there is no need to laying foundation to lead the secondary evidence. It is sufficient if the plaintiff pleads in his pleading or evidence that, despite of his efforts, he could not trace out the original. Further argued that in this case also despite of efforts made by the plaintiff, he was unable to find out the original. Therefore prayed to allow the applications and permit the plaintiff to reopen the evidence of P.W 1 to conduct the further chief examination and to mark the certified copy of the will. 9. On the other hand, learned advocates for defendants no. 2 to 4 and 8 vehemently argued that the plaintiff has not made out grounds to allow the applications, and he has not stated any such reasons in his affidavit to consider his prayer for leading secondary evidence. Further argued that this court has already rejected his prayer, hence it is hit by the principles of rejudicata. Further argued that the plaintiff has not produced the original alleged will, and the chief examination of P.W.1 is closed. Now case is posed for further cross examination of P.W.1, at this stage plaintiff has filed these false applications in order to prolong the matter. Therefore prayed to reject the applications. Learned advocate for the defendant no.2 to 4 has relied upon the decisions of Hon'ble High Court of Karnataka reported in ILR 2006 KAR 4213 and ILR 2018 KAR 2022. 10. I have gone through carefully the above stated decisions of Hon'ble Supreme Court and Hon'ble High Court of Karnataka relied upon by the both side and also I have gone through the entire materials on record. On perusal of order sheet dated: 03.07.2017 it is evident that this court has passed an order on I.A filed by the plaintiff u/o 16 rule 6 r/w sec 151 of CPC and allowed the said application. Further this court has issued summons to the Sub Registrar, Hoskote to produce the certified copy of registered will dated 13.06.1984 and also HC-KAR NC: 2026:KHC:7987 WP No. 12721 of 2021 - 13 - thumb register. Order sheet dated 20.07.2017 speaks that Sub Registrar, Hoskote was present before the court and produced said documents before the court. Thereafter plaintiff has filed application u/o 7 rule 17(2) of CPC with prayer to mark the copy of the will and thumb impression register produced by the Sub Registrar. The said application was dismissed by this court on 31.07.2017. Thereafter plaintiff has challenged the said order before Hon'ble High Court of Karnataka in Writ petition no. 52788/2017 and that petition was dismissed as withdrawn. Further Hon'ble High Court of Karnataka in the said order observed that if such an application is filed by the plaintiff before the trial court, it shall consider the same and pass orders in accordance with the law. Since then plaintiff has not moved any such applications, P.W1 offered himself for cross examination and cross examination was conducted in part on 05.04.2021 and matter was posted for further cross examination of P.W1. Now plaintiff has moved these application after lapse of almost 3 years and six months. xx xx xx 11. On careful perusal of decision of Hon'ble High Court of Karnataka reported in ILR 2006 KAR 4213 relied upon by the learned advocate for defendant no.2 to 4 it is crystal clear that Hon'ble High Court of Karnataka in para no.4 has held as under so far as the submission of the learned counsel for the petitioners that mere marking of a document does not amount to proving of a document. There cannot be any two opinion. But the question is that if sec.68 of the Indian Evidence Act requires a party to produce the said document in evidence by examining an attestor, petitioners cannot be permitted to mark such document in their examination-in-chief without marking a will through an attestor. In such circumstances, by seeking permission of the court to lead further evidence on the document in question, petitioners can examine the attestor to the will and mark the will through an attestor and thereafter if HC-KAR NC: 2026:KHC:7987 WP No. 12721 of 2021 - 14 - necessity arises petitioners can request the court to lead further evidence on the will in question by the petitioners. 12. In view of above said decision though it is well settled principle of the law that even certified copy or registered will can be produced as a secondary evidence it should be as per the principle laid down in the sec 68 of Indian Evidence Act and such certified copies of registered will can be marked by examining an attesting witness. Further it-is pertinent to note here that this is the matter of year 1992 and already Honble High Court of Karnataka has issued direction to this court to dispose of the matter within six months without seeking any further extension. Further Plaintiff can get the certified copy of the said will marked as Exhibit by complying with the procedure adopted under sec 68 of evidence act. Indian Evidence Act and as per the principles laid down by the Honble Supreme Court in that regard. In the event if such attesting witness is examined and said certified copy of will is marked then defendants will have the opportunity to conduct the cross examination on that point. Therefore considering the facts and circumstances of the case and the settled principles of the law as discussed above. It is my considered opinion that plaintiff has not made out the grounds to allow the applications. Accordingly, I answer point no.1 in the negative. 13. Point no 2: In view of my findings on point no 1, as discussed above, the applications filed by the plaintiff are liable to be dismissed. Hence I proceed to pass the following: ORDER The IA No.31 and 32 filed u/sec 151 of CPC and I.A.No.33 filed u/o 18 rule 17 r/w sec 151 of CPC by the plaintiff are hereby dismissed. No order as to cost.” 10. At this stage, it is apposite to set out Section 68 of the Evidence Act below. HC-KAR NC: 2026:KHC:7987 WP No. 12721 of 2021 - 15 - “68. Proof of execution of document required by law to be attested. If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied” [Emphasis supplied] 10.1 The plain reading of the provision shows that if a document is required by law to be attested, it shall not be used as evidence until at least one attesting witness has been called for the purpose of proving its execution if there be an attesting witness alive and capable of giving evidence. The proviso to this section states that it shall not be necessary to call on an attesting witness to prove a document, not being a Will which has been registered in accordance with the provisions of the Registration Act, 1908, unless its execution is denied clearly. HC-KAR NC: 2026:KHC:7987 WP No. 12721 of 2021 - 16 - 10.2 The Supreme Court in Yashodha Vs. K.Shobha Rani1 has held that where a party has to prove a document by secondary evidence, the conditions of the provisions need to be fulfilled first as under: “7. Secondary evidence, as a general rule is admissible only in the absence of primary evidence. If the original itself is found to be inadmissible through failure of the party, who files it to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contents. XXX XXX XXX 9. The rule which is the most universal, namely, that the best evidence the nature of the case will admit shall be produced, decides this objection. That rule only means that, so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it. Section 65 deals with the proof of the contents of the documents tendered in evidence. In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. Under Section 64, documents are to be provided (sic proved) by primary evidence. Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the section. In Ashok Dulichand v. Madahavlal Dube 2 it was inter alia held as follows : (SCC pp. 666-67, para 7) 1 (2007)5 SCC730 HC-KAR NC: 2026:KHC:7987 WP No. 12721 of 2021 - 17 - “7. After hearing the learned counsel for the parties, we are of the opinion that the order of the High Court in this respect calls for no interference. According to clause (a) of Section 65 of Evidence Act, secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the court, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it. Clauses (b) to (g) of Section 65 specify some other contingencies wherein secondary evidence relating to a document may be given, but we are not concerned with those clauses as it is the common case of the parties that the present case is not covered by those clauses. In order to bring his case within the purview of clause (a) of Section 65, the appellant filed applications on 4-7-1973, before Respondent 1 was examined as a witness, praying that the said respondent be ordered to produce the original manuscript of which, according to the appellant, he had filed photostat copy. Prayer was also made by the appellant that in case Respondent 1 denied that the said manuscript had been written by him, the photostat copy might be got examined from a handwriting expert. The appellant also filed affidavit in support of his applications. It was however, nowhere stated in the affidavit that the original document of which the photostat copy had been filed by the appellant was in the possession of Respondent 1. There was also no other material on the record to indicate that the original document was in the possession of Respondent 1. The appellant further failed to explain as to what were the circumstances under which the photostat copy was prepared and who was in possession of the original document at the time its photograph was taken. HC-KAR NC: 2026:KHC:7987 WP No. 12721 of 2021 - 18 - Respondent 1 in his affidavit denied being in possession of or having anything to do with such a document. The photostat copy appeared to the High Court to be not above suspicion. In view of all the circumstances, the High Court came to the conclusion that no foundation had been laid by the appellant for leading secondary evidence in the shape of the photostat copy. We find no infirmity in the above order of the High Court as might justify interference by this Court.” [Emphasis Supplied] 11. The document sought to be proved here is a will. It is not disputed by the parties that no attesting witness has been called for this purpose by the petitioner/plaintiff during the pendency of this case. The petitioner/plaintiff has not set out in is application that the attesting witness is available for examination. The pre-requisites of the law qua leading secondary evidence have thus not been complied with by the petitioner/plaintiff. 12. The examination by this Court in a petition under Article 227 of the Constitution of India is limited in circumspect. The Court is required to examine whether this Court needs to exercise its supervisory jurisdiction in the light of the Trial Court exceeding its jurisdiction or passing HC-KAR NC: 2026:KHC:7987 WP No. 12721 of 2021 - 19 - an order which is not in accordance with the law. The examination of the above shows that the order that has been passed by the Trial Court is in accordance with law. This Court finds no ground to interfere with the Impugned Order. The petition is accordingly dismissed. All pending applications stand closed. 13. Needless to add, given the pendency of the suit before the learned Trial Court for 36 years, the learned Trial Court is requested to decide the matter at the earliest. (TARA VITASTA GANJU) JUDGE YN List No.: 2 Sl No.: 6 Digitally signed by TARA VITASTA GANJU Location: HIGH COURT OF KARNTAKA