Research › Search › Judgment

Madhya Pradesh High Court · body

2017 DIGILAW 902 (MP)

Hind Kumar Kohli v. Vimalchand Patni

2017-08-10

S.A.DHARMADHIKARI

body2017
ORDER 1. Heard finally with the consent of learned counsel for both the parties. 2. In this petition under Article 227 of Constitution of India, the petitioner has assailed the order dated 19.5.2017 passed in Civil Suit No. 141A/2016 by 1st Civil Judge, Class-11, Gwalior, whereby, the application filed by the petitioner/defendant No.1 under Order 11 rule 12 r/w section 151 of CPC has been rejected. 3. The brief facts leading to filing of this case are that respondent Nos.1 and 2 plaintiffs have instituted a civil suit for eviction of tenanted shop and arrears of rent against the petitioner/defendant No.1 and respondents No.3 and 4. The plaintiffs alleged that the plaintiff No.1 is owner and plaintiff No.2 is landlord of the tenanted shop, which is required for starting business by the plaintiff No.1. It is also alleged that the defendanta No.1 and 2 are tenants in the shop and defendant No.3 is their sub-tenant. The suit for eviction has been filed on the ground available under section 12 (1) (a),(b) and (f) of M.P. Accommodation Control Act. During pendency of the suit, the respondent No. 4 filed an application under Order 11 rule 12 of CPC with the request that the plaintiffs be directed to produce the documents on affidavit which are in their possession. The plaintiffs filed reply to the said application and submitted documents on affidavit. The learned Court below vide order dated 28.2.2017 dismissed the application under Order 11 rule 12 of CPC observing that the plaintiffs have already produced the documents in their possession on affidavit. The petitioner/defendant No.1 also filed an application under Order 11 rule 12 of CPC with the submissions to produce the documents by the plaintiffs which are in their possession in the prescribed format as mentioned in Order 11 rule 13 of CPC. The trial Court after hearing the arguments, but without considering the real controversy involved in the matter dismissed the application vide impugned order dated 19.5.2017 (Annexure P-1). In this backdrop, the petitioner has filed this writ petition. 4. Learned counsel for the petitioner submits that learned Court below has committed grave jurisdictional error in dismissing the application treating it to be technical mistake, whereas, Order 11 rule 13 of CPC provides that affidavit is to be filed in form No.5 in appendix 'C'. In this backdrop, the petitioner has filed this writ petition. 4. Learned counsel for the petitioner submits that learned Court below has committed grave jurisdictional error in dismissing the application treating it to be technical mistake, whereas, Order 11 rule 13 of CPC provides that affidavit is to be filed in form No.5 in appendix 'C'. Leaned counsel for the petitioner relied on the judgment reported in 1982 MPWN 129 , Ramnath v. Rakesh Kumar where in marshalling of this fact has directed the trial Court to make discovery of documents on affidavit under Order 11 rule 13 of CPC which is mandatory. 5. On the other hand, learned counsel for the respondents has supported the order passed by the trial Court and submits that whatever documents were in their possession have been produced along with affidavit, though, it is not in the proper format as prescribed under Order 11 rule 13 of CPC. 6. Order 11 rule 13 of CPC is reproduced herein below for ready reference and convenience :- “13. Affidavit of documents :- The affidavit to be made by a party against whom such order as is mentioned in the last preceding rule has been made, shall specify which (if any) of the documents therein mentioned he objects to produce, and it shall be in Form No.5 in Appendix C, with such variations as circumstances may require.” 7. From bare perusal of the aforesaid provisions, it is clear that while producing the documents, affidavit is required to be filed in form No.5 in appendix 'C' with such variations as circumstances may require. Admittedly, in the present case, the trial Court itself has admitted that affidavit filed is not in the prescribed format and has rejected the application on the ground that only on the basis of technical error, application cannot be allowed. The learned lower Court has committed material irregularity in exercising its jurisdiction in rejecting the application under Order 11 rule 12 of CPC. Specific format has been prescribed for filing affidavit under Order 11 rule 13 of CPC, therefore, filling of affidavit in the prescribed format is mandatory. The impugned order dated 19.5.2017 (Annexure P-1) is hereby set aside and the respondents No.1 and 2 are directed to make discovery of the documents on affidavit as prescribed under Order 11 rule 13 of CPC. 8. With the aforesaid, the instant petition stands allowed. The impugned order dated 19.5.2017 (Annexure P-1) is hereby set aside and the respondents No.1 and 2 are directed to make discovery of the documents on affidavit as prescribed under Order 11 rule 13 of CPC. 8. With the aforesaid, the instant petition stands allowed. There shall be no order as to costs.