K C CHANDRASHEKAR RAJU Vs. D VENKATESH

JUDGEMENT

(1.) THIS writ petition is filed being aggrieved by the order passed by XI Addl. City Civil Judge, Bangalore City dated 29. 9. 2005 in O. S. No. 4858/2003 wherein application I. A. XXII Filed by the plaintiff-writ petitioner herein under Order 18 Rule 4 (1) r/w. Section 151 CPC, and Sections 63 (2) and 65 (c) of the Evidence Act is rejected.

(2.) I have heard the learned counsel appearing for the writ petitioner and the learned counsel appearing for the respondent.

(3.) THE writ petitioner who is the plaintiff in O. S. No. 4858/2003 filed application I. A. 22 to mark the Xerox copy of the agreement of sale dated 5. 5. 94 on the ground that the original of the said document had been deposited with the Banker for raising loan and the Banker has lost said original agreement and wherefore, plaintiff may be permitted to produce Xerox copy of the original agreement under Section 65 (c) of the Evidence Act. The banker was examined as PW8 and since objection was raised for production of the Xerox copy of the agreement of sale on the basis of which suit for specific performance of the said agreement was filed. The trial court by order dated 29. 9. 2005 held that similar application has been filed by the plaintiff seeking for permission to mark the Xerox copy of the agreement dated 5. 5. 94 under Section 63 (2) and 65 (c) of the Evidence Act in I. A. 15 and the said application was rejected by order dated 28. 3. 2005. Being aggrieved by the same, the plaintiff preferred CRP. No. 330/2005 and the same was disposed of on 8. 9. 2005 with liberty to file a writ petition and W. P. No. 22043/2005 was filed by the plaintiff and in the said writ petition, the order passed by the Court rejection I. A. 15 seeking for permission to produce Xerox copy of the agreement of sale dated 5. 5. 94 was rejected has been confirmed with liberty to the plaintiff to raise the ground in appeal if the suit against him by order dated 11. 11. 2005 and wherefore the present application for the same relief as sought for in I. A. 15 is not maintainable. The learned Senior counsel appearing for the writ petitioner submitted that since there is change of circumstance, the finding given on I. A. 15 would not operate as resjudicata and the applicant has also made out a ground under Section 65 (b) of the Evidence Act as the existence of the agreement dated 5. 5. 94 has been admitted by the defendant in the document which is now marked as Ex. P55 and also in the cross examination of defendant who is examined as DW. 1 and wherefore, the plaintiff has made out a ground for producing the Xerox copy of the original agreement dated 5. 5. 94.