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2018 DIGILAW 1102 (RAJ)

Arvind Singh Mewar v. Mahendra Singh

2018-04-27

NIRMALJIT KAUR

body2018
JUDGMENT : Nirmaljit Kaur, J. The present writ petition has been preferred against the order dated 10.01.2018 passed by the Additional District Judge No.2, Udaipur vide which the application filed by the plaintiff - respondent No.1 under Order 11 Rule 12 & 14 was allowed and the defendant - petitioner was ordered to produce the income tax returns of HUF as also in his personal capacity relating to the Estate of the H.L.H. Maharana Shri Bhagwat Singh Mewar along with the Assessment Orders. 2. The defendant - petitioner filed returns in the Income Tax Department in his personal and HUF capacity. Accordingly, an application under Order 11 Rule 12 & 14 was moved by the plaintiff - respondent seeking to produce the income tax returns as well as the Assessment Orders on the ground that they were relevant, material and necessary for adjudication of the dispute. The said application was allowed vide order dated 10.01.2018. 3. While praying for setting aside the said order, it was contended that the trial court has committed material irregularity in passing the said order, inasmuch as, four applications were filed by the same respondent - plaintiff in respect of the returns of the HUF which have since been dismissed and therefore, the present application was not maintainable and was barred by res judicata. Reply has been filed by the plaintiff - respondent. As per the reply, the earlier applications pertained to Maharana Bhagwat Singh Mewar. He passed away on 02.11.1984 and after his demise, the present petitioner came into possession of the record. The said application was filed under Order 7 Rule 14(2) CPC and not under the provisions of Order 11 Rule 12 & 14 CPC. The court below rejected the said application while holding that under Order 7 Rule 14(2) CPC, the plaintiffs has to state the documents which are not in his possession and also state in whose possession or power the documents are available which was missed in the application. The scope and ambit of Order 7 Rule 14(2) CPC and that of Order 11 Rule 12 & 14 CPC are altogether different. Under Order 11 Rule 12 & 14 CPC, relevance and expediency to produce documents are germane considerations which weigh with courts while making orders and admissibility of documents is not a relevant consideration. The scope and ambit of Order 7 Rule 14(2) CPC and that of Order 11 Rule 12 & 14 CPC are altogether different. Under Order 11 Rule 12 & 14 CPC, relevance and expediency to produce documents are germane considerations which weigh with courts while making orders and admissibility of documents is not a relevant consideration. In the instant application, plaintiff - non-petitioner No.1 has duly averred the ingredients of Order 11 Rule 12 & 14 CPC and the documents which are exclusively in the power and possession of the defendants and which the plaintiff does not have. Insofar as application dated 01.04.2015 filed by the respondent No.1 under Order 16 Rule 6 CPC is concerned, it was filed by the plaintiff in view of denial of the defendant - Income Tax Department to provide information/record sought by the plaintiff under the Right to Information Act, 2005. The plaintiff - non-petitioner No.1 had submitted an application under Section 6 of the Act of 2005 before the defendant - Income Tax Department for providing information and record of HUF tax returns filed by Maharana Bhagwat Singh Ji during the financial years 1983-84 and 1984-85. In accordance with Section 8 of the Act of 2005, Income Tax Department sought concurrence of defendant - petitioner for providing the information since the information sought was 'third party' information. The petitioner - defendant refused the request and hence, the information sought by the plaintiff - respondent No.1 was not provided by the Income Tax Department. Hence, application under Order 16 Rule 6 was filed. Here also, the period involved in the said application was 1983-84 and 1984-85. 4. Rejection of the application dated 01.04.2015 by the court below vide order dated 06.04.2015 does not create a bar upon filing of application under Order 11 Rule 12 & 14 CPC. The 'Karta' and a member of the HUF cannot be a 'third party' and denying the 'Karta' and member of HUF, copy of HUF record is in violation of existing laws. 5. Learned counsel for the plaintiff-respondent further submitted that earlier applications filed by the plaintiff are of no consequence as the prayer in the said applications was for producing the documents and HUF returns pertaining to the period of Maharana Bhagwat Singh during the period when he was still alive. 5. Learned counsel for the plaintiff-respondent further submitted that earlier applications filed by the plaintiff are of no consequence as the prayer in the said applications was for producing the documents and HUF returns pertaining to the period of Maharana Bhagwat Singh during the period when he was still alive. Whereas, in the present application the returns have been sought to be produced pertaining to the HUF being now filed by Shri Arvind Singh as also in his personal capacity. Heard. 6. The argument of the learned counsel for the respondent - plaintiff that the earlier applications did not pertain to the period or the returns filed by the petitioner - defendant Shri Arvind Singh is not entirely correct. This is evident from the following facts. The first application was filed under Order 11 Rule 12 CPC on 19.01.1984 which was dismissed on 06.02.2010. The second application under Order 11 Rule 12 & 14 was filed on 12.10.1984 which was dismissed as not pressed on 19.08.2010. The third application was filed on 03.04.2014 under Order 7 Rule 14(2) CPC which was rejected on 27.05.2014 and the fourth application under Order 16 Rule 1 & 6 CPC was filed on 01.04.2015 which was rejected on 06.04.2015. No doubt, the first two applications were submitted during the life time of the original defendant No.1 - Maharana Bhagwat Singh Mewar but the third and the fourth applications were filed recently in the year 2014 and 2015 respectively. In the application under Order 7 Rule 14(2) CPC filed on 03.04.2014, it was specifically stated in para No.6 of the application that defendant No.1 and 4 and the Government Department may be directed to produce the following documents and in para 7 of the application, the details of the documents were mentioned which were to be summoned. Para No.7(iv) and (iv) -1 reads as follow: img-1 7. A perusal of the above shows that the plaintiff - respondent had already asked for summoning of the HUF returns up till the date of the filing of the application which includes the period after the demise of Maharana Bhagwat Singh Mewar and the period when the defendant - petitioner Shri Arvind Singh started filing the returns. Hence, the prayer to produce them up till the date including the period of post Maharana Shri Bhagwat Singh when the said application was filed. Hence, the prayer to produce them up till the date including the period of post Maharana Shri Bhagwat Singh when the said application was filed. However, the said application was dismissed vide order dated 27.05.2014. The said order was not challenged and has attained finality. 8. However, even if this Court does not go into the said controversy as to whether the said documents sought by the respondent-plaintiff in the earlier applications which were dismissed are the same, the fact remains that the present application too as filed by the respondent - plaintiff is totally vague. A prayer has been made to produce the documents in the possession of the defendant - petitioner and the income tax returns being filed in the Income Tax Department in his personal and the HUF capacity and the Assessment Orders which have been forwarded by the Income Tax Department to the petitioner - defendant. There is no mention of the period of the return which is being sought to be produced and nor the year of the Assessment Order. The impugned order too is equally vague. A direction has been issued to produce the Income Tax Returns of the HUF and those filed in his personal capacity along with the Assessment Orders without mentioning the period of which the returns and Assessment Order is required to be produced. Even otherwise, the High Court of Judicature for Rajasthan at Jodhpur vide its judgment dated 11.06.1993 while disposing S.B. Civil Misc. Appeal No. 82/86 (Shri Arvind Singh vs. Shri Mahendra Singh) and other connected appeals against the order of the District Judge, Udaipur granting injunction in the suit filed by the plaintiff - respondent ordered as under : "Learned District Judge has issued directions referred to above in his order dated 2.12.9\85. He restricted the directions only to immovable properties. Why he had restricted his directions only for immovable properties, no reason or justification has been given. Similarly, no reason has been given as to why Shri Arvindsingh has not rendered the true and correct account of the income arising out of these immovable and movable properties, therefore, in the interest of justice, it is directed that Shri Arvindsingh shall render true and correct account of the suit-properties i.e. immovable and movable properties, which are in his possession, management and control. He should also render the true and correct account of the income arising out of these properties since 1983 and onwards. It is further directed that Shri Arvindsingh will allow the access of Shri Mahendra Singh to the account maintained in respect of income arising out of immovable and movable properties, which are in possession and control of Shri Arvindsingh, as and when Shri Mahendrasingh wants to see the accounts of income of these properties, maintained by the executors. He should file the true and correct account of income arising out of these properties duly audited by the Chartered Accountant in the trial court within two months from the date of this order. Thereafter he will continue to submit the above account every year by end of 'May'. It is further ordered that Shri Arvindsingh is an Executor of the will of Maharana Bhagwatsingh (defendant No.1) , his agents servants or officers are further restrained from disposing and/or alienating or otherwise dealing with the suit properties till decision of the suit." 9. In pursuance to the above direction issued by this Court, the defendant - petitioner Shri Arvind Singh Mewar is, in any case, continuously filing the Accounts of the suit property along with the Audited Income and Expenditure Account and Balance Sheet of Estate of late Shri Maharana Bhagwat Singh Mewar which are already placed on record with the present petition as Annexure P/13 from page 219 to page 235 right up till the year 2016-2017. The document at page 235 Schedule 'L' shows that the accounts being filed are in consolidated form for Estate of H.L.H. Maharana Bhagwat Singh Mewar's Individual and HUF up till the year 2016- 2017. Thus, the respondent - plaintiff cannot show their ignorance and lack of knowledge about the said documents on record. The application is, therefore, totally misconceived having been filed in spite of the fact that the relevant documents qua the return being filed by the defendant-petitioner are duly available on record. 10. The next question is with respect to the Assessment Orders. The Assessment Order sought by the plaintiff - respondent was not provided by the Income Tax Department and therefore, the plaintiff - respondent had filed an application under Order 16 Rule 1 & 6 CPC before the court below. The said application filed on 01.04.2015 was dismissed by the Court vide order dated 06.04.2015. The Assessment Order sought by the plaintiff - respondent was not provided by the Income Tax Department and therefore, the plaintiff - respondent had filed an application under Order 16 Rule 1 & 6 CPC before the court below. The said application filed on 01.04.2015 was dismissed by the Court vide order dated 06.04.2015. Now the present application has been moved seeking the Assessment Orders from the petitioner himself of the period allegedly pertaining to the defendant - petitioner Shri Arvind Singh Mewar, whereas, this Court has already noticed that the returns and the Assessment Order were demanded earlier in the application under Order 7 Rule 14(2) of C.P.C. dated 03.04.2014 not only of the period relating to Maharana Bhagwat Singh but also till the date of the filing of the said application which included the period after the life of Maharana Bhagwat Singh and the same already stands dismissed. 11. In one of the previous applications filed by the respondent - plaintiff under Order 7 Rule 14(1) & (3), the matter went up to the Supreme Court in the SLP (C) No.10142/2017 filed by the plaintiff himself and the Apex Court while rejecting the SLP imposed cost of Rs.50,000/- upon the plaintiff and it was specifically written in the order that "we are of the clear view that the petitioner is only adopting delaying tactics in a suit pending for about 30 years". 12. In view of the above discussion, the present writ petition is allowed and the impugned order dated 10.01.2018 passed by the Additional District Judge No.2, Udaipur is set aside. The application dated 19.07.2017 filed under Order 11 Rule 12 & 14 is rejected being totally vague, misconceived and frivolous and is filed only to delay the suit pending for years.