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Allahabad High Court · body

1967 DIGILAW 249 (ALL)

V. P. Singh v. D. H. N. Singh

1967-07-28

D.P.UNIYAL

body1967
JUDGMENT D.P. Uniyal, J. - This revision has been filed by the plaintiff from an order of the Additional Civil Judge, Varanasi by which he revoked his earlier order dated 30-4-1966 directing the defendant to produce certain account books for inspection by the plaintiff. 2. The plaintiff set up a title as reversioner to the suit property on the allegation that the adoption of the defendant was invalid and of no legal effect. He claimed recovery of possession as well as mesne profits. During the pendency of the suit he moved an application dated 25-11-1965 under Order XI, Rule 14, C. P. C. seeking production by the defendant of all account books in court alleging that the same were required for determination of the quantum of mesne profits in respect of which he had filed the suit. On the objection of the "defendant that the plaintiff's application for production of the documents was to vague and defective the Civil Judge called upon him to clearly specify the documents which he desired to be produced in court. The plaintiff then submitted a list of documents in compliance with the order of the court on 30-4-1966. On the same day the Civil Judge passed an order in these terms: "The defendant shall bring the papers of the items (t) of A and items (a) to (d) of B List of this application for perusal of the counsel for the plaintiff on 21-5-1966 positively, so that the case can proceed for evidence." 3. The defendant felt dissatisfied with the said order of the Civil Judge and accordingly moved an application on 21-5-1966 praying that he be not required to produce the documents specified in the order dated 30-4-1966 till the decision of the issue relating to title of the plaintiff to the suit property. The court fixed 27-8-1966 for the disposal of the aforesaid application of the defendant, as is clear from the order sheet, but instead of passing an order on the said application of the defendant he purported to make an order on the plaintiff's application dated 25-11-1965. As has been observed above, the latter application had already been disposed of by the Civil Judge on 30-4-1966. There could, therefore, be no justification for a second order, albeit a contrary one, in respect of a matter which had already been decided. As has been observed above, the latter application had already been disposed of by the Civil Judge on 30-4-1966. There could, therefore, be no justification for a second order, albeit a contrary one, in respect of a matter which had already been decided. The circumstances in which the earlier order was made clearly go to show that the court had no jurisdiction or power to vary or reverse that order which had been passed with the consent of the parties. It is a settled principle of law that a consent order cannot be set aside or varied by the court passing it. Even an appellate court has no jurisdiction to set aside a consent order unless such an order is prohibited by some provision of law or is against public policy. Clearly, therefore, the Civil Judge was in error in sitting in judgment over his earlier order. 4. The only ground which has been mentioned by the Civil Judge for setting aside the order is that the same had not been passed on merits. But that was no reason whatsoever to modify or reverse it. A con-a sent order is by its very nature the result of con census of the parties; it is not an order passed on merits, nor is it required that such an order should be passed on merits. Where there is no allegation that the consent of one of the parties was obtained by fraud or coercion the consent order cannot be set at naught. I am, therefore, of opinion that the Civil Judge erred in revoking his earlier order dated 30-4-1966. 5. It was contended by the learned counsel for the opposite party that the procedure prescribed under Order XI, Rule 12, C. P. C. had not been followed in this case and, as such, the order dated 304-1966 was not in accordance with law and the court could, therefore, correct its own error and pass a suitable order. I am not impressed by this argument. It was not a case where the defendant at any time denied his possession of the documents which he was required to produce in court. Consequently the question of discovery of the said documents could not arise. 6. I am not impressed by this argument. It was not a case where the defendant at any time denied his possession of the documents which he was required to produce in court. Consequently the question of discovery of the said documents could not arise. 6. It was next contended that the reason given by the plaintiff in his application for production of those documents was that the same were required for determining the quantum of mesne profits. And since the possession of the plaintiff to the suit property was in dispute unless it was shown that he had title to the property the determination of his claim to mesne profits could not arise. It was also said that the mesne profits to which the plaintiff might be entitled would be determined in the course of the final decree and the stage had not reached for the production of the said documents by the defendant. This contention of the learned counsel is not without force. But the point for consideration, is that there was already a consent order passed by the Civil Judge and it could not be countermanded by considerations which related to the merits of the case. The order passed by the Civil Judge on 30-4-1966 had to he carried out irrespective of whether the documents were required immediately or at a much later date. 7. Another argument advanced by the learned counsel was that the originals of some of the documents, such as Returns of Income-tax, Sales tax and Agricultural income-tax, were not in the possession of the defendant and he should not be directed to produce them and that it is open to the plaintiff to have them summoned from the Income-tax or the Agricultural Income-tax departments, as the case may be. It was conceded by the learned counsel for the applicant that the defendant could not be asked to produce the documents last mentioned and he has no objection if they arc not produced by the defendant. 8. I, therefore, allow this revision and set aside the order of the Civil Judge dated 27-8-1966 and restore the order passed by him on 30-4-1966. The defendant shall produce the documents mentioned in the order of the Civil Judge dated 30-4-1966 within two months except the following; namely, Income-tax, Sales tax, Wealth tax and Large Land Holdings tax Returns. 8. I, therefore, allow this revision and set aside the order of the Civil Judge dated 27-8-1966 and restore the order passed by him on 30-4-1966. The defendant shall produce the documents mentioned in the order of the Civil Judge dated 30-4-1966 within two months except the following; namely, Income-tax, Sales tax, Wealth tax and Large Land Holdings tax Returns. After the documents have been produced in court by the defendant the same shall not be open to inspection by the plaintiff until the decision of the issue relating to title. The documents shall be placed under the seal of the court in safe custody. The plaintiff is entitled to the costs of this revision. 9. The record of the case shall be sent down to the court below immediately. Revision allowed.