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2019 DIGILAW 1019 (RAJ)

Ayaz Master v. Rehana Mirza

2019-04-04

SANJEEV PRAKASH SHARMA

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JUDGMENT : Sanjeev Prakash Sharma, J. 1. By way of this writ petition, the defendants-petitioners have assailed the order dated 30/11/2017 whereby the learned trial court has allowed the application filed by the plaintiffs-respondents under Order 11 Rule 12 & 14 read with Section 151 CPC. 2. The defendants-petitioners submit that the plaintiffs-respondents had preferred a suit for partition and permanent injunction against the defendants-petitioners alleging that the plaintiff-respondent No. 1 (Smt. Rehana Mirza) is second wife of late Master Riyaz Ahmed who is father of defendants-petitioners No. 1 & 2 from the first wife while the plaintiffs-respondents No. 2 & 3 are from the wedlock of plaintiff-respondent No. 1 and late Master Riyaz Ahmed. The plaintiff-respondent No. 1, therefore, has claimed her share in the properties of her late husband Master Riyaz Ahmed. The application was therefore, moved by the plaintiffs-respondents under Order 11 Rule 12 & 14 read with Section 151 CPC in the proceedings relating to temporary injunction praying for calling the original record i.e. the original documents and title deeds relating to House No. 861, House No. 873 and House No. 1119 of the colonies and areas mentioned therein. 3. Learned Senior Counsel for the defendants-petitioners submits that such an application under Order 11 Rule 12 & 14 CPC was not maintainable in the proceedings of temporary injunction and such application could only be moved in the original proceedings namely; the main suit. The temporary injunction application proceedings cannot be said to be original in nature and therefore, the application ought to have been rejected by the learned trial court. It is further submission of the defendants-petitioners that the application has been moved to delay the proceedings. The issues have already been framed and in terms of the issues, the onus was upon the plaintiffs-respondents to prove that the houses as mentioned in the plaint were belonging to late Master Riyaz Ahmed. Learned Senior Counsel submits that the order dated 30/11/2017 be quashed and set aside. In support of his submissions, learned Senior Counsel for the defendants-petitioners relies on the judgment passed by this Court in Cimmco Ltd. Vs. Shyam Mohan Jai: AIR 1997 (Raj.) 180 ; judgment passed by Madhya Pradesh High Court (Jabalpur Bench) in M/s. Bhatia Distributors and others Vs. Bosch Limited and another: 2012(2) MPHT 107 ; judgment passed by Gujarat High Court in Life Insurance Corporation of India Vs. Shyam Mohan Jai: AIR 1997 (Raj.) 180 ; judgment passed by Madhya Pradesh High Court (Jabalpur Bench) in M/s. Bhatia Distributors and others Vs. Bosch Limited and another: 2012(2) MPHT 107 ; judgment passed by Gujarat High Court in Life Insurance Corporation of India Vs. Vasant N. Modi (Civil Revision Application No. 1900 of 1999), decided on 28/06/2001; judgment passed by Andhra Pradesh High Court in Medam Sankaranarayan Vs. Gaddala Tripathi Tao and Ors.: AIR 1971 (AP) 332 and the judgment passed by Gauhari High Court in Hareshwar Roy Vs. Mustt. Monowara Begum and Ors.: AIR 2010 (Gau) 22 . 4. Per-contra, learned counsel for the plaintiffs-respondents has supported the order passed by the learned trial court and relies on the judgment passed by this Court in Ravindra Bal Niketan Samiti, Sikar and others Vs. Smt. Sushila Shrivastava and another: AIR 1988 (Raj.) 177 . 5. After hearing learned counsel for both the parties, this Court finds that in the application moved under Order 11 Rule 12 & 14 CPC by the plaintiffs-respondents, they prayed for calling the documents relating to House No. 861, Luharon Ka Khurra, Ghat Gate Bazar; House No. 873, Hiran Walon Ki Masjid Ke Samne, Luharon Ka Khurra, Ghat Gate Bazar, Jaipur and House No. 1119, Hiran Walon Ki Masjid, Jaipur as the same in possession of the defendants-petitioners. In reply to the said application, the defendants-petitioners have not denied that they are in possession of the said documents. Once there is no denial of the possession of the documents, the learned trial court proceeded to pass order directing the same to be produced vide impugned order dated 30/11/2017 against which present writ petition has been filed. 6. The submission of learned counsel for the defendants-petitioners is to be noticed that the defendants-petitioners did not deny existence or availability of the said title deeds with them but only raised an objection that such application could not have been moved in an application for seeking temporary injunction on the ground that the proceedings for temporary injunction are not the original proceedings. In Cimmco Ltd. Vs. Shyam Mohan Jai (supra), the High Court did not lay down any such power. In Cimmco Ltd. Vs. Shyam Mohan Jai (supra), the High Court did not lay down any such power. The only contention raised was that the power contained under Order 11 Rule 14 CPC is not intended to enable him to cause a roving enquiry which may not be relevant for disposal of the suit and the High Court held as under:- "9. In the instant case, the trial Court while allowing the application of the plaintiff has only observed that "summoning of service books is necessary." The expediency, justness and the relevancy of the service books to the matter in question has not been examined. The relevant consideration which the trial Court ought to have weighed, were not adverted to before taking decision about summoning of the service books. Such an approach of the trial Court cannot be termed as 'judicial approach.' It is not the intention of the Legislature that such an order should be made as a matter of routine and as one of no serious consequences." 7. In M/s. Bhatia Distributors and others Vs. Bosch Limited and another (supra), the question was relating to burden of proof to seek relief from the Court and the Court held as under:- "The burden to prove the essential ingredients under Order 38 Rule 5 of the CPC is on the person who seeks the relief from the Court. For the purposes of facilitating adjudication of the application filed by the respondents under Order 38 Rule 5 of the CPC, the powers under Order 11 Rule 12 of the CPC at the instance of the respondents/plaintiff cannot be exercised by the Trial Court. For the aforementioned reasons, the order passed by the Trial Court cannot be sustained in the eye of law. The same is hereby quashed. In the result, the writ petition is allowed." 8. In Life Insurance Corporation of India Vs. Vasant N. Modi (supra), again the issue was different and the principle was followed that Order 11 Rule 12 & 14 CPC powers are not intended to enable roving enquiry which may not be relevant for disposal of the suit. In the present case, the issue is different and the judgment is thus distinguishable on facts. 9. Similarly, the judgment in Medam Sankaranarayan Vs. Gaddala Tripathi Tao and Ors. (supra) is also distinguishable and has no application to the present case. The judgment passed in Hareshwar Roy Vs. In the present case, the issue is different and the judgment is thus distinguishable on facts. 9. Similarly, the judgment in Medam Sankaranarayan Vs. Gaddala Tripathi Tao and Ors. (supra) is also distinguishable and has no application to the present case. The judgment passed in Hareshwar Roy Vs. Mustt. Monowara Begum and Ors. (supra) has also no application as it was a case under Order 39 Rule 2-A CPC and does not relate in any manner to the application under Order 11 Rule 12 CPC. 10. On the other hand, in Ravindra Bal Niketan Samiti, Sikar and others Vs. Smt. Sushila Shrivastava and another (supra), similar issue was decided by the Court after examining the provisions, it was held as under:- "Mr. Chadha's contention is that the provisions of Order 11, Rule 12 only applies in the matters which originate in themselves and not those which spring up from a suit or other proceedings or arise in connection therewith. It will not be out of place here to mention that to avoid the controversy which may arise in such matters the explanation under Section 141 has been added vide Amending Act, 1976. Explanation provides that in this section the expression "proceedings" includes the proceedings under Order 9". Thus, the citation which has been cited by Mr. Chaddha loses its importance after the amendment of the C.P.C. The explanation is only explanatory and starts with the word "includes". Thus, the word 'includes' enlarges the scope of Section 141 C.P.C. and in proceedings of a miscellaneous nature which arise in a suit fall within the definition of Section 141 C.P.C. The explanation has been added in the C.P.C. to avoid the difficulties of the litigants and multiplicity of proceedings. If an application is filed in the original suit and the temporary injunction application is disposed off without the assistance of the original file then there will be chaos. The assistance of the original file is always taken while deciding the applications under Order 39, Rules 1 and 2. Application under Order 39, Rules 1 and 2 is a part and parcel of the suit and it cannot be excluded. After the adding of the explanation there remains nothing to be argued and the court was justified in applying the provisions of Order 11, Rule 12. Application under Order 39, Rules 1 and 2 is a part and parcel of the suit and it cannot be excluded. After the adding of the explanation there remains nothing to be argued and the court was justified in applying the provisions of Order 11, Rule 12. The application of the present non-petitioner plaintiff relating to Order 11, Rule 12 should be accepted and the present petitioner defendant is directed to file an affidavit under Order 11, Rule 13. 11. Keeping in view the law as noted above, the issued raised in the present writ petition is no more res-integra. The proceedings for temporary injunction are part of the main proceedings of the suit and application can also be moved under Order 11 Rule 12 & 14 CPC in Temporary Injunction Application. 12. It is also noticed that the issues in the main suit have already been framed by the trial court on 05/08/2017 and thus, the order would apply to the main suit also. 13. In view thereof, the order impugned dated 30/11/2017 does not call for any interference. 14. Consequently, the writ petition is dismissed. No costs.