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2015 DIGILAW 329 (RAJ)

Hindustan Petroleum Corporation Ltd. v. Ram Bagh Palace Hotel Private Limited

2015-02-04

MOHAMMAD RAFIQ

body2015
JUDGMENT : Mohammad Rafiq, J. This writ petition has been filed by petitioner-Hindustan Petroleum Corporation Ltd., which is defendant in the suit filed by the respondent-Ram Bagh Palace Hotel Private Ltd. for eviction, recovery of arrears of rent and damages against it. The premise on which the eviction is sought is personal necessity under Section 13 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950. The plaintiff-respondent filed application under Order 11, Rule 12, 14 and 15 of the Code of Civil Procedure on 18.8.2010 for discovery/production of certain documents from the defendant-petitioner. The learned trial court by order dated 1.2.2011 allowed the said application. Petitioner challenged the aforesaid order in writ petition bearing no. 4210/11 before this Court. The said writ petition was allowed vide judgment dated 29.1.2013 and this Court by setting aside the aforesaid order, remanded the matter to the trial court to decide the application afresh in accordance with law. 2. According to the petitioner, the arguments on the aforesaid application were partly heard on 26.2.2013 and thereafter the matter was posted for further arguments. However, in the meanwhile the plaintiff-respondent filed another application under Order 11, Rule 14 CPC on 10.5.2013. The defendant-petitioner filed reply to that application on 21.5.2013. However, the plaintiff-respondent later withdrew the aforesaid application dated 10.5.2013 on 11.11.2013. Later, however, he filed yet another application under Order 11, Rule 12 CPC on the same date. 3. According to petitioner, this last application under Order 11, Rule 12 filed on 11.11.2013 CPC was filed for discovery of as many as 10 documents referred to in para 6 of the writ petition. The defendant-petitioner filed reply to the said application on 12.12.2013 denying the allegations of the plaintiff-respondent and alleging that the said application was not maintainable in view of pendency of earlier application on the same subject. However, the learned court below vide impugned order dated 27.01.2014 allowed the application and directed the defendant-petitioner to disclose the documents, which are in his possession and power on an affidavit. In response to the said order, the defendant-petitioner filed affidavit of the authorized signatory Mr. Harpreet Singh Tuteja, the Senior Regional Manager of the Corporation on 21.2.2014. The learned trial court by order dated 25.2.2014 directed the plaintiff-respondent to file counter affidavit in reply to the aforesaid affidavit filed by the petitioner. In response to the said order, the defendant-petitioner filed affidavit of the authorized signatory Mr. Harpreet Singh Tuteja, the Senior Regional Manager of the Corporation on 21.2.2014. The learned trial court by order dated 25.2.2014 directed the plaintiff-respondent to file counter affidavit in reply to the aforesaid affidavit filed by the petitioner. The defendant-petitioner then filed an application on 4.3.2014 stating therein that provisions of Order 11, Rule 12 and 13 CPC do not provide for a direction to the opposite party to file counter affidavit in rebuttal to the affidavit filed under Order 11, Rule 12 CPC. In the meantime, the counter affidavit on behalf of the plaintiff-respondent was already filed and, therefore, in reply filed by them, they have pleaded that the application of the defendant-petitioner has become in fructuous. It is this application dated 4.3.2014, which has been rejected by the trial court vide impugned order dated 9.10.2014. 4. Ms. Sukriti Kasliwal, learned counsel for the petitioner has submitted that the learned trial court has erred in law in not permitting the plaintiff-respondent to file the affidavit in rebuttal/response to the affidavit which the defendant-petitioner filed on 21.2.2014 as per the order of the Court dated 27.1.2014. Learned counsel submitted that the trial court has further committed illegality in the impugned order dated 9.10.2014 by directing the defendant-petitioner to produce the documents in compliance of the order dated 1.2.2011, whereas the said order has already been set aside by this Court in its earlier writ petition vide judgment dated 29.1.2013. Learned counsel referring to the provisions of Order 11, Rule 12 CPC argued that if a party apply to the Court for directing any other party to make discovery on oath of the documents, which are in his possession or power, that party shall be required to file affidavit in Form-5 in Appendix-C, but upon filing such affidavit by that party, no further counter affidavit by the party at whose instance the discovery of document is sought to be made, can be permitted to file counter affidavit in rebuttal. No such counter affidavit is envisaged either in Rule 12 or 13 of Order 11. Such an order cannot be passed even by recourse to inherent powers under section 151 CPC. No such counter affidavit is envisaged either in Rule 12 or 13 of Order 11. Such an order cannot be passed even by recourse to inherent powers under section 151 CPC. Learned counsel in support of her arguments has relied on the judgment of Supreme Court in K.K. Velusamy v. N. Palanisamy-2011 (2) WLC (SC) Civil 435 : (2011) 11 SCC 275 and Lahore High Court in I.M. Lall v. Secretary of State-AIR 1944 Lahore 209. 5. Shri G.K. Garg, learned senior counsel for the respondent submitted that the learned trial court is justified in rejecting the application of the defendant-petitioner because not only the counter affidavit of plaintiff was directed to be filed by the trial court, but filing of such affidavit would not be causing any prejudice to the defendant-petitioner. there is no provision in law which prohibits filing of such counter affidavit in rebuttal. The Court has legally permitted filing of such affidavit by order dated 27.1.2014 and the affidavit has actually been filed on 21.2.2014. Even if there is no specific provision in this behalf, the Court has ample inherent powers to do so with reference to Section 151 CPC. Thereafter, there was un-justification for recall of that part of the order. It is argued that reference to the order dated 1.2.2011 does not in any manner vitiate the order impugned because this was meant for indicating the documents. The learned trial court by the impugned order has thereby not revived the order dated 1.2.2011, which has indeed been set aside by this Court in earlier writ petition of the petitioner requiring the trial court to decide the application afresh. 6. This Court in earlier writ petition of the petitioner by its judgment dated 29.1.2013 has set aside the order dated 1.2.2011 as also 3.3.2012. While by the first order, the application filed by the plaintiff-respondent under Order 11, Rule 12, 14 & 15 was allowed. By second order, on the application under Order 11, Rule 21 read with Section 151 CPC defence of the petitioner was struck out. The effect of setting aside of the aforesaid orders and remand of the matter was revival of the application filed by the respondent under Order 11, Rule 12, 14 and 15 of CPC. Filing of fresh application on the same subject was, therefore, not called for. The effect of setting aside of the aforesaid orders and remand of the matter was revival of the application filed by the respondent under Order 11, Rule 12, 14 and 15 of CPC. Filing of fresh application on the same subject was, therefore, not called for. In any case, with the filing of the affidavit by the plaintiff envisaged in Rule 13 Order 11, that Rule outlived its purpose and thereafter no further permission could be given to the party at whose instance the discovery of document was sought to be made, to file further counter affidavit. 7. This issue came up for consideration before the division bench of Lahore High Court in I.M. Lall, supra wherein it was observed that if a party states in his affidavit of documents that he has no document relating to the matters in question in the suit other than that set forth in the affidavit, his oath is conclusive and the other party cannot cross-examine upon it, nor adduce evidence to contradict it, nor administer interrogatories asking whether he has not in his possession or power documents other than those set forth in his affidavit. It was so observed by their lordships that the law so summarized is supported by a number of authorities of English and Indian Courts. There is no deviation to that position of law since then. 8. Such a course is not open to the Court even under its inherent powers under Section 151 CPC as held by the Supreme Court in Nainsingh v. Koonwarjee & Ors.- AIR 1970 SC 997 that the inherent powers recognized by the Court under Section 151 CPC cannot be restored to for doing what is prohibited by the Court. Such power has to be exercised subject to the rule that if the Code does contain specific provisions which would meet the necessities of the case, same may be followed and the necessities of the case, same may be followed and the inherent jurisdiction should not be invoked. The Supreme Court in K.K. Velusamy, supra has reiterated the same law by holding that Court has no power to do what is prohibited by law or CPC by purported exercise of its inherent powers. The Supreme Court in K.K. Velusamy, supra has reiterated the same law by holding that Court has no power to do what is prohibited by law or CPC by purported exercise of its inherent powers. If CPC contains provisions dealing with a particular topic or aspect and such provisions either expressly or by necessary implication exhaust the scope of the power of the court or the jurisdiction that may be exercised in relation to that matter, the inherent power cannot be invoked in order to cut across the powers conferred by CPC or in a manner inconsistent with such provisions. In other words, the Court cannot make use of the special provisions of Section 151, where the remedy or procedure is provided in CPC. Their lordships further held that the inherent powers of the Court being complementary to the powers specifically conferred, a court is free to exercise them for the purposes mentioned in Section 151, which to secure the ends of justice would prevent the abuse of process of Court. In view of that position of law, it must be held that inherent powers of the Court being complementary to the powers specifically conferred, a court is free to exercise such powers only for the purposes mentioned in Section 151, which to make "such order as may be necessary for the ends of justice or to prevent abuse of the process of the Court." 9. In view of the position of law summarized above, the filing of affidavit by the petitioner on 21.2.2014 in response to the order dated 27.1.2014 served the purpose of Rule 13 Order 11 and thereafter no further counter affidavit could either be directed to be filed by the plaintiff, nor permitted to be taken on record. The order of trial court dated 25.2.2004 permitting the plaintiff to file such counter affidavit and the order dated 9.10.2014 rejecting application of the petitioner for rectification of that mistake, both cannot be sustained in law and are, therefore, set aside and the writ petition is allowed. 10. The order of trial court dated 25.2.2004 permitting the plaintiff to file such counter affidavit and the order dated 9.10.2014 rejecting application of the petitioner for rectification of that mistake, both cannot be sustained in law and are, therefore, set aside and the writ petition is allowed. 10. Having regard to the fact that the suit for eviction was filed by the defendant way back in the year 2002, the direction of this Court as contained in the earlier judgment dated 29.01.2013 passed in S.B. Civil Writ Petition No. 4210/2011 is reiterated and the trial court is directed to make faithful compliance of that judgment and decide the main suit without granting any undue adjournments at the earliest possible. Stay application also stands disposed of.