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1955 DIGILAW 76 (MP)

Sitaram v. Gowardhan

1955-09-10

MATHUR

body1955
ORDER : This is a revision application by Sitaram, plaintiff, against the order dated 20-1-1955 passed by Shri S.N. Shrivastava, Additional District fudge, Bhopal on the applications of the applicant under O. 11, R. 12, Civil P.C. requesting the Court to order the lour defendants of the suit to make discovery on oath of documents which were or had been in their possession or power relating to matters in question in the suit. The first application moved by the applicant under this rule was on 20-9-1954 wherein defendants 1 to 3, namely Govardhan Ji, Mithulal and Motilal, were to make discovery on oath of the documents detailed or referred to in the application. On 24-9-1954 a reply unaccompanied by an affidavit was filed on behalf of these defendants. The learned District Judge thereupon called upon the three defendants to file an affidavit in support of their written reply. This order was complied with on 16-11-1954. Even then the affidavit was filed by defendant - only and it was of a vague nature. The plaintiff filed an objection to the affidavit on 29-11-1954. On 4-12-1954 the learned Counsel for defendants 1 to 3 conceded that the affidavit was not on the prescribed form but it was urged that it was not necessary that the affidavit should be on behalf of ail the defendants. No final orders were passed. that day. On 9-12-1954 the plaintiff moved an application in continuation of his earlier application dated 20-9-1954 under O. 11, R. 12, Civil P.C., wherein documents of which each of the defendants was lo make the discovery on oath were specified. 2. On 11-11-1954 the plaintiff had also made an application under O. 11, R. 12, Civil P.C., requesting the Court to call upon defendant 4, Babulal, to make discovery on oath of documents which were or has been in his possession or power relating to the matters in question in the suit, in this application details of documents were not furnished. Defendant 4 filed an objection to the application, though it has been urged before me by the defendant himself that he had already furnished particulars of the documents in his possession in his written statement. 3. The above applications were considered on 20-1-1955 when the Additional District Judge passed an order, the operative portion of which runs as below. Defendant 4 filed an objection to the application, though it has been urged before me by the defendant himself that he had already furnished particulars of the documents in his possession in his written statement. 3. The above applications were considered on 20-1-1955 when the Additional District Judge passed an order, the operative portion of which runs as below. "In the special circumstances of the case I am of the opinion that such discovery from them is not necessary at this stage the defendant 4 files his affidavit. I, therefore, order that the case be adjourned and defendant 4 should file his affidavit first after the plaintiff makes the necessary specification of the documents required to lie discovered from defendant 4". 4. The learned Additional District Judge appears to have been under an impression that in an application for discovery of documents under O. 11 R. 12, Civil P.C., the applicant has to furnish details of documents of winch discovery has to be made on oath, that is, by an affidavit in the prescribed form. It is true that if such details are furnished, much controversy likely to arise in the future would be avoided but a party cannot be said to be unjustified in making a general request for directing another party to make discovery of all the relevant documents in its possession or power or which were at any stage in its possession or power. In case the material documents are specified in the application it will not be open for the party called upon to make the discovery to say in future that it did not regard the documents to be material for the case. It would be necessary for that party to urge before the Court that a particular document was not material or necessary for the disposal of the case and if the decision is given against it, it would be necessary for that party to make the discovery of that document also. But if no such details are furnished in the application under O. 11, R. 12, Civil P.C., the party called upon to make discovery on oath can subsequently plead that it did not regard a particular document to be material for the disposal of the case and consequently did not make the discovery of that document even though it was within its knowledge and that document was in its possession or power. Similarly, if the documents are specified will not be open for that party to subsequently urge that he made no attempt to search for a particular document. In other words, if full details of documents are furnished in the application under O. 11, R. 12, Civil P.C., none of the parties would be taken by surprise and at the same time the time of the Court would he saved. The correct interpretation of Order 11, Rule 12, Civil P.C., therefore, is that an application under this rule cannot be rejected simply because details of documents were not entered therein; but the Courts of law have the power to direct the applicant to furnish details of documents so that the other party may not in any way be prejudiced and at the same time the time of the Court may not be wasted. But if the details are not furnished, the application will have to be disposed of in accordance with the law, though in the future it will have to be kept in mind that the applicant was ignorant of the details or did not intentionally furnish such details for reasons best known to him. 5. It is not necessary to express an opinion on whether defendant 4 is in collusion with the plaintiff or these two parties have the same interest; but for the disposal of an application under order 11, R. 12, Civil P.C., the Court could act on the presumption that these, two parties had similar interest. Order 11, R. 12, Civil P.C., is silent as to the order in which the discovery on oath is to be made by various parties. Consequently the Courts of Law can, in special cases, lay down the order in which the discovery has to be made by the parties. In other words, if it is found that it will facilitate the disposal of the case and will be in the interest of justice that a particular party should first make the discovery the Court of Law can order that party first of all to make the discovery on oath and thereafter to call upon the other party to make discovery on oath, of documents which are or were in their possession or power. In a case of the present nature it was not very necessary to first of all order defendant 4 to make the discovery on oath and then to call upon defendants 1 to 3 to make similar discovery on oath. But when the Additional District Judge has exercised his discretion, which cannot be said to be arbitrary, it would not be proper for this Court to interfere with the discretion already exercised by him. 6. In the end it was urged on behalf of the applicant that defendants 1 to 3 .should be ordered to file affidavits individually with regard to the documents in their exclusive possession or power, is detailed in the subsequent application dated 9-12-1954. This part of the case has not been considered by the Additional District Judge, chiefly because he had postponed the disposal of the applications as far as defendants 1 to 3 were concerned. I would, therefore, not pass any final order on this point but would briefly indicate, for the guidance of the trial Court, that separate affidavits by the various defendants may prove useful, to ensure that no useless plea is raised subsequently and there is no unnecessary delay in the disposal of the case. Of course, if a joint affidavit is filed, it must be by a person who is an authorised agent of all the defendants or who is duly authorised to act on their behalf. In other words, it is necessary for the Court to see that the discovery on oath is made by all the defendants concerned and not by any individual defendant. 7. The Civil Revision is, therefore, dismissed but it is ordered that the case should be disposed of as early as possible when time is available for taking up civil cases. Costs of revision on the parties. Revision dismissed.