PANDURANG GURUNATH KULKARNI Vs. RUKMINIBAI

JUDGEMENT

(1.) this revision under Section 115 of Code of Civil Procedure arises out of the judgment and order dated August 22, 1995, whereby the learned i additional civil judge, bijapur, rejected the application la. 18 and has also rejected la. 19 as it did not survive.

(2.) the brief facts of the case are that, plaintiffs-applicants have moved an application under order 16, Rule 2 of Code of Civil Procedure seeking to summon defendant 2-Smt. Rukmini bai and for a direction from the court to her to appear in witness-box to be cross-examined by the plaintiff. This application la. 18 was moved on 20-7-1995. On 31-7-1995 plaintiffs have presented la. 19 with identical prayer. The application was opposed by the defendants who filed objections to the same. The court below mentioned the disputed facts that plaintiff 1 was the father of plaintiffs 2 to 5. Plaintiff 1 having died, the widow and daughters are brought on record. Plaintiffs have sought for declaration to the effect that they are the owners of the suit properties mentioned in paragraph-1 of the plaint and the sale deed dated 7-7-1978 was nominal and they also sought injunction seeking to restrain the defendants from interfering with the peaceful possession and enjoyment. The plaintiff contended that the deed dated 7-7-1978 was a nominal sale deed and was not intended to be a deed of sale. Really it was in the nature of a security of mortgage for the loan that has been advanced and as the loan sums its entirety has already been paid with interest and defendants who had agreed to reconvey the property vide agreement dated 8-7-1978 have refused to reconvey the property, so the suit was filed on the basis of title for the relief. When the application for summoning was made, the impression was given to the court that the transaction was all along between plaintiff and defendant 2 and not defendant 1. The court below after having referred to this circumstance of the case opined that the circumstance of the case did not warrant the summoning of the defendant or issue of direction to defendant 1 to appear in witness box for being cross-examined. The court further observed that, it may be open to plaintiff applicant at later stage to argue the plea of adverse inference. With these observations, the court rejected those applications. Having felt aggrieved from the order impugned dated 22-8-1995 the plaintiffs have come up in revision under Section 115 of the Code of Civil Procedure.

(3.) I have heard Sri m. Ram bhat, learned counsel for the petitioners and Smt. Sona vakkund, counsel for respondents. Sri bhat, submitted before me that the court below acted illegally in rejecting the application for summoning defendant 2 and depriving the plaintiff of his right to bring out evidence by cross-examination of defendant 1. To the effect that really, defendant 1 was not the purchaser of the property and real purchaser was defendant 2 who is the husband of defendant 1, as well as to show that the transaction in question was the transaction of loan. The learned counsel submitted that, the court below illegally refused to exercise jurisdiction vested in it when it refused to summon the defendant 1 and that may adversely affect the revision applicant in the course of the trial of the suit, which injury may not be compensable. On behalf of the respondents, the contentions raised on behalf of the applicants have been hotly contested by Smt. Sona vakkund. The learned counsel for respondents submitted that, only relevant material evidence can be produced, which is admissible. Smt. Sona vakkund submitted that, firstly, there is no specific plea of benami transaction, taken by the plaintiff either in the plaint or by way of filing any reapplication and when such plea has not been taken, no issue has been pressed. Therefore such evidence could not have been admissible and therefore, court below rightly rejected that application for summoning defendant 1-Smt. Rukmini bai. Smt. Sona vakkund further submitted that, in the present case the transaction in question which is alleged to be mortgage cannot be said to be mortgage and cannot be investigated in view of the language of Section 58(c) of the Transfer Of Property Act. Smt. Sona vakkund submitted that, in this case the transaction is contained in two separate documents. One is the sale-deed and other is agreement to reconvey and the two transactions are separate and the condition to repurchase is not contained in one single document. That in cases where it is contained in one deed, then deed has to be construed as per its own terms keeping in view the Provisions of Section 58 of the Transfer Of Property Act. Smt. Vakkund submitted that, as such, no evidence can be produced to prove the external circumstance or something like that, to say that the transaction is a mortgage transaction. She submitted that the evidence on that point was also not admissible on record. Smt. Sona vakkund further submitted that, if the circumstances so become available to the plaintiff to urge that defendant failed to appear in witness box and his appearance was necessary, then it may be argued by them that adverse presumption may be drawn and the court may decide that question as may appear proper to be. Smt. Vakkund submitted that, in such circumstances, the court below neither did commit any error of law or of jurisdiction in rejecting the application for summoning the witnesses. She submitted that, she does not contend that the order impugned cannot be said to be decided, but here the court below did not commit any error of law or of jurisdiction within the four corners of Section 115 of Code of Civil Procedure.