Research › Search › Judgment

Madhya Pradesh High Court · body

2010 DIGILAW 1041 (MP)

Narendra Gole v. Ram Krishna Sharma

2010-10-13

A.K.SHRIVASTAVA, BRIJ KISHORE DUBE

body2010
ORDER A.K. Shrivastava, J. – 1. By this petition filed under Article 227 of the Constitution of India, the petitioner has challenged the validity of the impugned order dated 10.9.2010 passed in Civil Suit No. 15-A/2010 by 14th Civil Judge, Class-II, Gwalior by which the application under Order XI Rule 12 of the Code of Civil Procedure of the petitioner-defendant has been rejected. 2. On bare perusal of the impugned order, we find that on the settlement date, an appalication under Order XI Rule 12 of the Code of Civil Procedure for the discovery of the documents has been filed by the defendant and it has been prayed that the respondent-plaintiff shall disclose on affidavit the documents which are in his possession. 3. Learned Trial Court has rejected the said application. 4.Shri Suresh Kushwah, learned counsel for the petitioner-defendant by inviting our attention to Rule 12 of Order XI of the Code of Civil Procedure has submitted that it was not incumbent upon the defendant to file an affidavit along with an application under Order XI Rule 12 of the Code of Civil Procedure and it was also not necessary to specify the documents in the application and, therefore, the learned trial Court has erred in rejecting the application, which was filed on the settling date itself In support of his contention, heavy reliance has been placed by the learned counsel on the decision of Supreme Court M.L. Sethi v. R.P. Kapur AIR 1972 SC 2379 . 5. On the other hand, Shri Sanjay Jain, learned counsel for the plaintiff respondent argued in support of the impugned order and submitted that the application appears to be misconceived and all the documents related to the suit have already been filed by the plaintiff 6. Having heard the learned counsel for the parties. We are of the view that this petition deserves to be partly allowed. 7. On bare perusal of the provision of Order XI Rule 12 of the Code of Civil Procedure, we find that any party may, without filing any affidavit, apply to the Court for an order directing any other party to any suit to make discovery on oath of the documents which are or have been in his possession or power, relating to any matter in question therein. 8. 8. On bare perusal of the aforesaid provision, nowhere it is gathered that any party is required to pray for any specific document although he may specify a particular document to be discovered. 9. On bare perusal of the impugned order, we find that on the settling date itself, the application was filed. 10. The Supreme Court in M.L. Sethi (Supra) in para 5 has categorically held that generally speaking, a party is entitled to inspection of all documents which do not themselves constitute exclusively the other party's evidence of his case or title. If a party wants inspection of documents in the possession of the opposite party, he cannot inspect them unless the other party produces them. The party wanting inspection must, therefore, call upon the opposite party to produce the document. And how can a party do this unless he knows what documents are in the possession or power of the opposite party? Hence, the Supreme Court has categorically laid down the law of the land that unless the party seeking discovery knows what are the documents in the possession or custody of the opposite party which would throw light upon the question in controversy, how is it possible for him to ask for discovery of specific documents? 11. On bare perusal of the provision of Order XI Rule 12 of the Code of Civil Procedure, we find that every document which will throw any light on the case is a document relating to a matter in dispute in the proceedings, though it might not to be admissbile in evidence. In other words, a document might be inadmissible in evidence yet it may contain information which may either directly or indirectly enable the party seeking discovery either to advance his case or damage the adversary's case or which may lead to a trial of enquiry which may have either of these two consequences. 12. By placing reliance on the aforesaid dictum of the Supreme Court, we are of the view that the learned trial Court rejected the application dehors to the provisions of Order XI Rule 12 of the Code of Civil Procedure and hence the order cannot be allowed to remain stand. 13. Resultantly, this petition succeeds and is hereby allowed. 12. By placing reliance on the aforesaid dictum of the Supreme Court, we are of the view that the learned trial Court rejected the application dehors to the provisions of Order XI Rule 12 of the Code of Civil Procedure and hence the order cannot be allowed to remain stand. 13. Resultantly, this petition succeeds and is hereby allowed. The impugned order is hereby set aside and the application order XI Rule 12 of the Code of Civil Procedure filed by the petitioner-defendants is allowed in part and that prayer is allowed by which the discovery of the document has been sought. However, that part of the relief, by which the discovery of fact has been sought, is here by rejected. The petitioner shall be entitled to costs of this petition. Councel's fee Rs. 500/-, if pre-certified.