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2012 DIGILAW 246 (UTT)

Lalit Belwal v. Jagjeet Singh Arora

2012-06-04

V.K.BIST

body2012
JUDGMENT : Petitioner instituted civil suit no.85 of 2006 for declaring a part of sale deed dated 10.09.2003 as null and void and further not to raise any construction on open space, sahan etc. on which rights have been given to the petitioner by previous owners. Respondents filed their written statement against which petitioner filed reapplication. At the stage of evidence, the petitioner submitted his affidavit. Thereafter, the respondents started cross-examination, which continued for several days. The case was posted on 14.03.2012 for further cross-examination of the petitioner. On that day the respondents moved an application being paper no.81C under Order 11 Rule 12 of Code of Civil Procedure, 1908 (hereinafter referred to as “the CPC”) for issuing a direction to the petitioner to produce map of his house and also for producing permission letter of the sanctioned map. The petitioner filed objection against the same. The Additional Civil Judge (Junior Division) Haldwani vide order dated 28.03.2012 allowed the application of the respondents and directed the petitioner to produce map of his house as well as sanction order of the same. Against the said order present writ petition has been filed. Shri Sandeep Tiwari, Advocate appeared for the respondent and made statement before me that he does not want to file counter affidavit on behalf of the respondents and prayed that petition be heard without counter affidavit at the earliest. Shri Arvind Vashistha also submitted that he has no objection in case petition is heard. Therefore, the petition was heard in absence of counter affidavit. Since, the respondent has preferred not to file any counter affidavit, the factual submissions made in the writ petition are treated admitted to the respondent. Shri Arvind Vashistha, learned counsel for the petitioner submitted that suit was instituted by the petitioner for declaring a part of the sale deed dated 10.09.2003 as null and void and further for a prohibitory injunction against the respondent for not to raise any construction on open space, sahan etc. on which rights have been given by the previous owner. He submitted that in view of these facts map of petitioner’s house and its sanction has no relevance. on which rights have been given by the previous owner. He submitted that in view of these facts map of petitioner’s house and its sanction has no relevance. He also submitted that at this stage cross-examination is going on, which continued more than five days and each time after putting some question to the petitioner, adjournment is sought by the respondents and court granted adjournment fixing another date for further cross-examination. Such adjournment is sought only to harass the petitioner. He submitted that sanction of map is not at all relevant at this point of time. He also submitted that the respondents knew where the map is and they could have obtained the desired map from the office of concerned authority and application moved by them is not maintainable. The same has been moved only to delay the proceedings of the suit. He submitted that judgment passed by Court below is against the spirit of the Rule 12 of Order 11 of C.P.C. In support of his submission he relied upon the judgement reported in AIR 1987, Orrissa 207-M/s J.S. Construction Pvt. Ltd. vs Damodar Rout, 2009(4) ALD 851 , Jammuddin vs Shri Ram Chits Pvt. Ltd and judgment of Delhi High Court in FAO 206/2009 & CM Nos.7554-7555/2009 Mr M. Sivasamy vs. Vestergaard Frandsen A/S and Ors. Shri Sandeep Tiwari, learned counsel for the respondents submitted that map of petitioner’s house is very much relevant for the controversy involved in the suit as that will show the construction existing at the site. He submitted that the respondents tried to find out the map but that is not available with the Prescribed Authority and now has asked the same under Right to Information Act but he has not received the same till date. He submitted that document has to be in the possession and power of the person against whom discovery and production is sought. In support of this submission he relief on paragraph 7 of the judgment of Delhi High Court in FAO No.206/2009 and CM No. 7554-7555/2009 Mr M. Sivasamy vs. Vestergaard Frandsen A/S and Ors which is being reproduced below: 7. A reference to the aforesaid provisions show that the first step is the discovery of documents and after discovery of documents there is a second step, and this is again a material step, which is of production of documents. A reference to the aforesaid provisions show that the first step is the discovery of documents and after discovery of documents there is a second step, and this is again a material step, which is of production of documents. However, the two steps are necessarily distinct and separate in as much as ordinarily there is no production till the affidavit is filed in the Court discovering the documents in the appropriate form as prescribed in the C.P.C. Of course, when the particulars of documents are known, a party can straightway invoke Order 11 Rule 14 because the particular documents are known to be in the power and possession of the opposite party. A reading of the aforesaid provisions of Order 11 Rules 12 and 14 bring out certain salient features as under: (i) The documents sought to be discovered and produced have to be relevant to the matter in controversy viz matters in question. (ii) The documents have to be in the possession and power of the person against whom discovery and production is sought. (iii) Discovery and production of the documents which are sought for are necessary at that stage of the suit; (iv) The discovery and production is necessary for fairly disposing of the suit or for saving costs. (v) The discovery and production may be general or limited to certain classes of documents as the Court in its discretion deems fit and the production will only be ordered if the Court considers it just. I have considered the application moved by the respondents under Order 11 Rule 12 of C.P.C., objection of the petitioner, order passed by the court below and also the arguments of learned counsel for the parties. Order 11 Rule 12 is quoted hereunder:- 12. Application for discovery of documents- Any part 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. Order 11 Rule 12 is quoted hereunder:- 12. Application for discovery of documents- Any part 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. On the hearing of such application the Court may either refuse or adjourn the same, if satisfied that such discovery is not necessary, or not necessary at that stage of the suit, or make such order, either generally or limited to certain classes of documents, as may, in its discretion, be thought fit: Provided that discovery shall not be ordered when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the suit or for saving costs. The aforesaid provision permits or enables any party to the suit to apply to the Court for suitable directions directing the other party to make discovery on oath of the documents, which are or have been in possession of such party. The power of the Court to direct other party to produce document at any time during the pendency of suit cannot be questioned. But, before giving such direction, the Court has to be satisfied that the document in question is relevant for proper adjudication of the matter involved in the suit. In the present case, the trial court has not at all considered this point in its order. In fact, the trial court did not apply its mind to find out in what manner the document was relevant. The trial court has also not considered the fact whether the required document is in exclusive possession of the plaintiff and whether the required document cannot be obtained by the defendant from the office of Prescribed Authority. This is not a proper manner to decide an application. The case law referred by Shri Sandeep Tiwari does not help the respondent in any manner. In view of above discussion, petition is allowed. Order dated 28.03.2012 passed by Ist Additional Civil Judge (Junior Division), Haldwani, District Nainital in application dated 14.03.2012 paper no.81C of the respondents in Civil Suit No.85 of 2006, Lalit Belwal vs Jagjeet Singh Arora and another is hereby quashed. Application dated 14.03.2012, paper no.81C, filed by the respondents is rejected.