(Prayer: This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to call for the entire records in O.S. No.306/1997 pending before the court of the Additional Civil Judge & JMFC Chikkaballapur vide Annexure-A and Etc.)

1. This writ petition is filed challenging the orders on I.A.No.9 in O.S.No.306/1997 on the file of the Court of Civil Judge (Jr.Dvn.), Chikkaballopura dated 12.3.2013.

2. The facts in brief are that the petitioners filed O.S.No.306/1997 for declaration and injunction. The 1st petitioner examined as PW1 and produced Exs.P.1 to P.26. Ex.P. 13 is the partition deed. The defendant No.6/respondent, filed i.A.No.9 to strike out/delete the evidence of PW1 in the chief examination of PW1 as the deed of partition/relinquishment deed i.e., Ex.P.13 is not admissible in evidence. The said application was rejected b}r the trial Court on 21.08.2009 against which, writ petition No.34362/2009 was filed by the respondent before this Court. This Court allowed the writ petition on 10.11.2010 setting aside the order passed by the trial Court and directed the trial Court to examine the prayer made in I.A.No.9 afresh after providing an opportunity to the petitioner to establish that the document in question was inadmissible in evidence and therefore, cannot be marked in evidence. Pursuant to the said order passed by this Court, the trial Court considered the matter afresh and allowed I.A.No.9 holding that the document i.e., the partition deed/relinquishment deed requires compulsory registration and has to be duly stamped, being devoid of all these, is not admissible in evidence. This order dated 12.3.2013 passed by the trial Court is impugned in this writ petition.

3. Heard learned counsel appearing for the parties.

4. Learned counsel Sri G.S.Bhat, appearing for the petitioner vehemently contended that once the Court rightly or wrongly decided to admit the document in evidence, the Court had no power to reopen the issue and to redetermine the matter regarding the admissibility of the document in evidence. It was argued that this court has remanded the matter only to reconsider I.A.No.9 afresh after providing opportunity to the petitioner and the trial Court exceeded its jurisdiction in reviewing its order while reconsidering the application filed by the respondent and placed reliance on the following Judgments:

(1) AIR 1961 SC 1655 (Javer Chand And Others Vs. Pukhraj Surana)

(2) AIR 2007 SAC 637 (Shyamal Kumar Roy Vs. Sushil Kumar Agarwal)

(3) AIR 2011 KAR 128 (H.Krishnappa Vs. M. D.Ashwathanarayan Singh)

(4) ILP 2011 Kar.2017 (M/s. Cave Caterers Private Limited Vs. M/s. Sudha Enterprises)

5. Per contra, Smt Sneha Shastry, appearing for the respondent supported the order passed by the trial Judge and placed reliance on the judgment of this Court in the case of Krishna vs Sanjeev reported in W.P.No.29882 of 2003 dated 14.07.2003.

6. After hearing the learned counsel for the parties and perusing the material on record, it is clear that on the application filed by the respondent contending that no opportunity was provided to the respondent at the time of marking the document - Ex.P.13, the partition deed/relinquishment deed which was produced on 28.07.2003, the trial Court dismissed the application and the same was assailed before this Court by the respondent in W.P.No.34362/2009 and this Court, by order dated 10.11,2010 has held as follows:

'5. Having heard the learned Counsel for the parties and on careful consideration of the materials on record including the judgments relied upon by the parties, I find that on 14.07.2003, the application filed by the plaintiffs for production of documents by condoning the delay in belated production was allowed and the on the same day, the affidavit evidence of the plaintiff is received and the documents are marked including Ex.P-13 which is a document written on Rs.5/- stamp paper. Defendant No.G- petitioner herein was represented in the Trial Court by an Advocate by name S.S. There is nothing to show that the Counsel for defendant No. 6 was present at the time when the application was allowed and the documents were marked. There is no material also to show that the court below has applied its mind to the admissibility of the document Ex.P-13. Though it is well established that once a document is marked in evidence without the other party raising any objection, the admissibility of the same cannot be raised as an issue later. In the facts and circumstances of the present case, it is clear that the documents were belatedly produced by filing an application by the plaintiff on 14.07.2003 and the same was allowed on the same day. Affidavit evidence is received on the same day and all the documents are marked including the document in question which is objected subsequently after noticing that the same was inadmissible. In the absence of any material to show that the Counsel for defendant No. 6-petitioner herein was present when the documents were marked and did not raise any objection for marking the document, the Court below ought to have provided an opportunity to the petitioner to object for the marking of this document by considering IA No. 9 filed immediately thereafter on128.08.2003."

7. Having come to a conclusion that the respondent was deprived of an opportunity to object to the marking of the document, this Court set-aside the impugned order therein and directed the Court below to examine the prayer made on I.A.No.9 afresh after prodding opportunity to the petitioner to show that the document in question was inadmissible in evidence and therefore, cannot be marked in evidence. In the light of the said directions issued by this Court, the trial Court after providing sufficient opportunity to both the parties and considering the arguments advanced on both the sides, allowed the application observing that the recital in the partition deed/relinquishment deed shows that the said document is a document of partition as well as the concerned party has relinquished his share over the properties and as per Section 17 of the Indian Registration Act, the document operate to create/declare/assign/limit or extinguish right, title or interest of the value of Rs. ICO/'- and onwards in the immovable property, requires compulsory registration and the partition deed/relinquishment deed necessarily required registration as per the said provision and it was further observed that the said document executed on a stamp paper of Rs.4.50 establishes that it was executed on an-insufficient stamp paper which is not admissible in evidence.

8. This Court in Krishna vs Sanjeev (supra) has categorically held that "marking of a document is a ministerial act whereas admitting a document in evidence is a judicial act. Before a document is led in evidence, there should be a judicial determination of question whether it can be admitted in evidence or not. In other words, the Court admitting a document must have applied its mind consciously to the question whether the document was admissible or not,"

9. Applying the said principles of law enunciated by this court, the learned Judge in W.P.No.34362/2009 dated 10.11.2010 has set-aside the order passed by the trial Judge, and directed the trial Court to provide an opportunity to the respondent to show that the document in question was inadmissible in evidence and therefore, cannot be marked in evidence. By virtue of the said judgment and order passed by this Court which has attained finality, the issue in question was re-opened. All the contentions now raised by the petitioner have to be negated in view of the judgment and order passed by this Court in W.P. No.34362/2009 dated 10.11.2010 wherein it is categorically held that "there is no such application of mind by the Court below,

particularly because the counsel for defendant No.6 - petitioner herein was absent and the documents were belatedly produced and on the same day the documents were marked". The petitioner having accepted the said judgment, participated in the proceedings before the trial court after remand. Now, having suffered an order against him is before this Court questioning the powers of the trial court in allowing the application (IA 9). The judgments relied on by the petitioner are not applicable to the facts of the present case in view of the orders passed by this court, providing an opportunity Court to the respondent to object to the marking of the document. Thus, the trial Court has acted upon the directions issued by this Court which cannot be found fault with. No exception can be made with the order passed by the trial Court. Accordingly, writ petition stands dismissed.