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2019 DIGILAW 282 (ORI)

Basantilata Mishra v. Collector, Kendrapara

2019-04-05

A.K.RATH

body2019
JUDGMENT : A.K. Rath, J. This petition challenges the order dated 12.08.2016 passed by learned Civil Judge (Sr. Divn.), Kendrapara in C.S. No.431 of 2006, whereby and whereunder learned trial court has rejected the application of the defendant nos.1 to 5 and 7 for a direction to the plaintiffs to produce the Panchayat Faisala Patra dated 28.8.1973. 2. Since the dispute lies in a narrow compass, it is not necessary to recount in detail the cases of the parties. Suffice it to say that plaintiffs-opposite party nos.7 to 9 instituted the suit for declaration of title, correction of ROR and certain other ancillary reliefs. Defendant nos.1 to 5 and 7 entered contest and filed written statement denying the assertions made in the plaint. Issues were settled. Four witnesses had been examined by the plaintiffs. At this juncture, defendant nos.1 to 5 and 7 filed an application for a direction to the plaintiffs to produce the Panchayat Faisala Patra dated 28.8.1973. The defendants filed objection. The same was rejected on 9.9.2015. They filed CMP No.1216 of 2015 before this Court. After disposal of the same, they filed an application for review of the order. Plaintiffs filed objection to the petition stating that the document is not available with them. Learned trial court rejected the petition holding inter alia that the present suit land is not part of the Panchayat Faisala Patra dated 28.8.1973. The plaintiffs have specifically denied the availability of the said document in their possession. 3. Heard Mr. J.K. Mishra-2, learned Advocate for the petitioners, Mr. M. Mohanty, learned Advocate for the opposite party no.7 and Mr. P.K. Routray along with Mr. J. Bhuyan, learned Advocates for the opposite party nos.8 and 9. 4. Mr. Mishra-2, learned Advocate for the petitioners submitted that the defendants have pleaded that there is partition of the properties vide Panchayat Faisala Patra. The same has been admitted by the plaintiff no.1 in registered sale deed dated 03.05.1978 as well as plaintiff no.2 in registered sale deed dated 17.07.1974. Out of five Panch members, one of the members, i.e., Dasarathi Karan, has been examined as P.W.4. In T.S. No.194/1994, the plaintiffs were impleaded as defendant nos.1 to 3. They adduced evidence for amicable settlement and disclosed about the Panchayat Faisala Patra. Plaintiffs are in possession of Panchayat Faisala Patra. Learned trial court committed a manifest illegality in rejecting the application. In T.S. No.194/1994, the plaintiffs were impleaded as defendant nos.1 to 3. They adduced evidence for amicable settlement and disclosed about the Panchayat Faisala Patra. Plaintiffs are in possession of Panchayat Faisala Patra. Learned trial court committed a manifest illegality in rejecting the application. He placed reliance on the decision of this Court in the cases of Saraswati Nayak and others vs. Susen Nayak and another, (2017) Supp1 OrissaLR 179 and Janakiballav Patnaik vs. Bennett Coleman and Co. Ltd. and others, (1988) 1 OrissaLR 427. 5. Per contra, learned Advocates for the opposite parties submitted that Panchayat Faisala Patra is not in possession of the plaintiffs. 6. Order 16 Rule 6 CPC provides: "6. Summons to produce document-Any person may be summoned to produce a document, without being summoned to give evidence, and any person summoned merely to produce a document shall be deemed to have complied with the summons if he causes such document to be produced instead of attending personally to produce the same." 7. In Saraswati Nayak and others, this Court held: "In Dolagovinda Pradhan and another vs. Bhartruhari Mahatab, (1991) 2 OrissaLR 395, this Court held that while the Court giving direction for production of those documents during the pendency of the suit, he must be satisfied that: (A) The documents which are called for to be produced, are in power and possession of a party against whom the order is made. (B) Those documents relate to the matter in question in the suit. The documents must be such that they throw some light into the case and must be in possession of the party. But this power of directing the party to produce the documents is always subject to Secs.130 and 131 of the Indian Evidence Act. It was further held that the Court has discretion in the matter relating to production of documents though it is a judicial discretion. It can only direct the documents to be produced in Court for inspection when they throw some light into the case and in possession of the party on the ground that the documents are related to the matter in question in the suit. xxx xxx xxx The provision contained in Order 16 Rule 6 of C.P.C. is not to penalize a party." 8. xxx xxx xxx The provision contained in Order 16 Rule 6 of C.P.C. is not to penalize a party." 8. In Janakiballav Patnaik, this Court held: "xxx xxx xxx In Shri M. L. Sethi vs. Shri R.P. Kapur, (1972) AIR SC 2379 Order 11, Rule 12 came up for interpretation. It was held that generally speaking, a party is entitled to inspection of all documents which do not themselves constitute exclusively the other party's evidence of his case or title. If a party wants inspection of documents in the possession of the opposite party, he cannot inspect them unless the other party produces them. The party wanting inspection must, therefore, call upon the opposite party to produce the document. And how can a party do this unless he knows what documents are in the possession or power of the opposite party? In other words, unless the party seeking discovery knows what are the documents in the possession or custody of the opposite party which would throw light upon the question in controversy, how is it possible for him to ask for discovery of specific documents ? It was further held that every document which will throw any light on the case is a document relating to a matter in dispute in the proceedings, though it might not be admissible in evidence. In other words, a document might be inadmissible in evidence, yet it may contain information which may either directly or indirectly enable the party seeking discovery either to advance his case or damage the adversary's case or which may lead to a trail of enquiry which may have either of these two consequences." 9. Plaintiffs specifically denied that they are in possession of Panchayat Faisala Patra. Further the document does not relate to the matter in question to the suit. Thus no direction can be given to the plaintiffs to produce the document. 10. In view of the foregoing discussions, the petition is dismissed. There shall be no order as to costs.