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2001 DIGILAW 1005 (AP)

P. Meharunnissa Begum v. P. Noorunnissa Begum

2001-09-07

V.V.S.RAO

body2001
V. V. S. RAO, J. ( 1 ) THE suit was filed by the respondents-plaintiffs for partition. During the trial the plaintiffs marked Ex. A. 1. It appears Ex. A. 1 a copy of the Court decree refers to a document dated 24. 11. 1959 in tamil language which speaks of settlement between the plaintiffs and their relations. Intending to confront the plaintiffs with document dated. 24. 11. 1959 the petitioners- defendants filed I. A. No. 204 of 2001 for direction to the plaintiffs to produce the said document. The application was opposed by the plaintiffs inter alia denying all the contentions in the application and also contending that the alleged document in tamil language is not executed by plaintiffs father and that it is a fabricated document. It was also contended that no such document is in the custody of their father. The learned trial Judge having regard to the language of Order XI, Rule 14 of Code of civil Procedure, 1908 (CPC) dismissed the application on two grounds. First, in the written statement filed by the ninth defendant on behalf of other defendants no averment as to existence or otherwise of the document was made. Secondly, when opposite party disputes the custody of the document, order XI, Rule 14 of CPC would not apply. The learned trial Judge passingly observed that if the defendants are in possession of xerox copy of the alleged document, it is always open to them to take necessary steps for leading secondary evidence in accordance with Sections 65 and 66 of the indian Evidence Act, 1872 ( the Act for brevity ). Accordingly, the application was dismissed. Aggrieved by the same, the present Civil Revision Petition is filed. ( 2 ) I have heard the learned counsel for the petitioners Sri B. V. Bakshi and the learned counsel for the respondents sri Moinuddin. ( 3 ) SRI B. V. Bakshi submits that as and when the plaintiff denies the custody of document the lower Court is entitled to dismiss the application. According to him, the trial Court is bound to conduct enquiry and arrive at the truth. The averment made by the plaintiffs in this case is not relevant for deciding the question under Order XI rule 14 of CPC. According to him, the trial Court is bound to conduct enquiry and arrive at the truth. The averment made by the plaintiffs in this case is not relevant for deciding the question under Order XI rule 14 of CPC. He also submits that the provisions of Sections 65 and 66 of the Act will come into play only when certain requirements are complied with. In the present case, the learned counsel submits that Ex. A. 1 which is marked by the plaintiffs witness refers to the document in Tamil language dated. 24. 11. 1959 and unless the contents of the document are before the court the truth will not come out. Sri moinuddin, learned Counsel for the respondents submits that when the plaintiffs deny the custody of the document alleged to have been in their possession the lower Court was justified in dismissing the application which was filed under Order XI Rule 14 of CPC. He also placed reliance on the decision in Indian foils Ltd. v. 5th Industrial Tribunal, AIR 1972 Cal. 308 . ( 4 ) THE short question that arises for consideration is whether the order of the trial Court suffers from any error apparent on the face of the record which occasions failure of justice and results in miscarriage of justice. Order 11 Rule 14 CPC reads as under: order 11 Rule 14: Production of documents :it shall be lawful for the court, at any time during the pendency of any suit, to order the production by any party thereto upon oath, of such of the documents in his possession or power, relating to any matter in question in such suit, as the Court shall think right; and the Court may deal with such documents, when produced, in such manner as shall appear just. ( 5 ) A party to a suit can approach the court for compelling the other side to produce the document in possession of the latter. In such circumstances, it shall be lawful for the Court at any time to give direction to the other side to produce the document to enable the Court to deal with such documents in accordance with law. The exercise of power under Order XI rule 14 of CPC is, however, subject to condition precedent, namely, the party who is to be ordered to produce document must be in possession or power of the document. The exercise of power under Order XI rule 14 of CPC is, however, subject to condition precedent, namely, the party who is to be ordered to produce document must be in possession or power of the document. When a person denies the allegation that he is in custody of the document the same by itself may not in a given case divest the jurisdiction of the trial Court under Order XI rule 14 of CPC. Sri Bakshi is right in contending that the Court has to conduct a prima facie enquiry and then arrive at a finding as to whether a party is in possession of the document. It is reasonable to presume that as and when a party is directed to produce a document and such document goes against the case projected or pleaded in the case, by reason of natural human conduct everyone deny the custody of the document. The condition precedent for ordering the production of document can be inquired into with reference to the pleadings and the evidence if any lead before the trial Court. ( 6 ) IN INDIA FOILS LTD s CASE (supra) the Calcutta High Court considered the scope of Order XI Rule 14 of CPC and following the judgment of this Court in varalakshmamma v. Balasubramanyam, AIR 1958 AP 157 = (1958) 2 An. WR 246 and judgments of other High Courts laid down as under: the Court has therefore, to be satisfied either upon admission of the party against whom the order is made or from an affidavit filed on his behalf or from other material such as correspondence that the documents which are directed to be produced are in the possession and power of the party against whom the order was to be made. To my mind, it seems that unless there is evidence before the Court that the documents are in the possession of power of the party against whom the order is sought, the court will have no jurisdiction to make an order for production of the same. The second condition is also very relevant and important. , namely that the documents must relate to the matter in question in the proceeding pending before the Court. The second condition is also very relevant and important. , namely that the documents must relate to the matter in question in the proceeding pending before the Court. It is not open to a party to come to Court and ask for an order for production of numerous documents without satisfying the Court that the documents are relevant, and that on the records there is ample evidence that the documents are in the possession or power of the party against whom the order was to be made, (emphasis supplied) ( 7 ) LAM with respect in agreement with the view taken by the Calcutta High court. ( 8 ) IN this case having regard to the averments made in the affidavit and also the other relevant record and circumstances the court recorded a finding that the plaintiffs are in possession of the document alleged to have been executed by the father of the plaintiffs in 1959. Therefore, Order XI rule 14 has no application to the facts of the case. This Court must observe that having regard to the submission made by the petitioners counsel as they are in possession of Xerox copy of the order subject to complying with the provisions of sections 65 and 66 of the Act they are entitled to produce secondary evidence and as and when the same is produced, it shall be considered in accordance with law. ( 9 ) IN the result, subject to above observations, the Civil Revision Petition is dismissed at the admission stage. No costs.