Research › Search › Judgment

Allahabad High Court · body

2024 DIGILAW 29 (ALL)

Vipin Kumar v. Wahid Ahmad Qureshi (Deceased)

2024-01-04

MANISH KUMAR NIGAM

body2024
JUDGMENT : 1. Heard learned Counsel for the parties and perused the record. 2. This petition has been filed for the following relief : "i). Set-aside the order dated 2.9.2023 passed by the learned Addl District Judge, Court No.12, Meerut in Civil Appeal No.157 of 2010 (Vipin Vs. Dr. Wahid Ahmad Qureshi (deceased) & others (Annexure No.14 to this Petition) and the applications, Paper Nos.225 Ga & 229 Ga (Annexure Nos.8 & 11 to this petition) of the defendant/petitioner may be allowed." 3. Brief facts of the case are that the plaintiffs-respondents instituted Original Suit No.823 of 2000 in the Court of Civil Judge (Senior Division), Meerut against the defendant-petitioner for specific performance of an agreement to sell dated 7.1.1975 executed between the father of the plaintiffs-respondents and the defendant-petitioner. The aforesaid suit was contested by the petitioner by filing written statement. The Addl. Civil Judge (Senior Division), Meerut Court No.6 vide the judgment and decree dated 27.8.2010 decreed the suit. The defendant-petitioner filed Civil Appeal No.157 of 2010 challenging the judgment and decree dated 27.8.2010 passed by the trial court. During pendency of the appeal, the appellant-petitioner gave a notice under Order 11 Rule 16 C.P.C. for inspection of documents mentioned in paragraph no. 4, 8 & 9 of the plaint of O.S. No. 823 of 2000. The plaintiffs-respondents contested the application by filing their objections to the effect that document referred in paragraph no. 4 of the plaint are already part of record and no documents are referred in paragraph nos. 8 & 9 of the plait. Since, the plaintiffs-respondents failed to comply with the notice under Order XI Rule 16 C.P.C., the petitioner filed application Paper No.225 Ga under Order XI Rule 21 C.P.C. with a prayer to dismiss the aforesaid suit for non-compliance of the provisions contained in Order XI Rule 16 C.P.C. This application was also contested by the plaintiffs-respondents by filing objections inter alia pleading that the documents are already on record. Then the petitioner moved another application Paper No.229 Ga with the prayer that the plaintiffs-respondents be directed to specify as to when the aforesaid documents were filed. Both these applications filed by the petitioner being Paper No.225 Ga under Order XI Rule 21 and application No.229 Ga were considered and dismissed by the lower appellate court by its judgment and order dated 2.9.2023, hence the present petition. 4. Both these applications filed by the petitioner being Paper No.225 Ga under Order XI Rule 21 and application No.229 Ga were considered and dismissed by the lower appellate court by its judgment and order dated 2.9.2023, hence the present petition. 4. It has been contended by learned Counsel for the petitioner that the provisions of Order XI C.P.C. are applicable in appeal also in view of Section 107 of the C.P.C. read with powers of the Appellate Court conferred by Rule 33 of Order XLI. It has been further contended by learned Counsel for the petitioner that since the provision of Order XI C.P.C. are applicable to appeals filed under Section 96 of C.P.C., the Court below erred in law has rejecting the application filed by the petitioner under Order 11 Rule 21 C.P.C. Before proceeding with the merits of the case, it will be useful to look into the relevant statutory provisions provides for inspection of documents referred to in pleadings or otherwise, which is as under :- "15. Inspection of documents referred to in pleadings or affidavits.- Every party to a suit shall be entitled on or before the settlement of issues any time to give notice to any other party, in whose pleadings or affidavits reference is made to any document or who has entered any document in any list annexed to his pleadings or produce such document for the inspection of the party giving such notice, or of his pleader, and to permit him or them to take copies thereof; and any party not complying with such notice shall not afterwards be at liberty to put any such document in evidence on his behalf in such suit unless he shall satisfy the Court that such document relates only to his own title, he being a defendant to the suit, or that he had some other cause or excuse which the Court shall deem sufficient for not complying with such notice, in which case the Court may allow the same to be put in evidence on such terms as to costs an otherwise as the Court shall think fit." 16. Notice to produce.—Notice to any party to produce any documents referred to in his pleading or affidavits shall be in Form No. 7 in Appendix C, with such variations as circumstances may require. 17. Notice to produce.—Notice to any party to produce any documents referred to in his pleading or affidavits shall be in Form No. 7 in Appendix C, with such variations as circumstances may require. 17. Time for inspection when notice given.—The party to whom such notice is given shall, within ten days from the receipt of such notice, deliver to the party giving the same a notice stating a time within three days from the delivery thereof at which the documents, or such of them as he does not object to produce, may be inspected at the office of his pleader, or in the case of bankers' books or other books of account or books in constant use for the purposes of any trade or business, at their usual place of custody, and stating which (if any) of the documents he objects to produce, and on what ground. Such notice shall be in Form No. 8 in Appendix C; with such variations as circumstances may require. 18. Order for inspection.—(1) Where the party served with notice rule 15 omits to give such notice of a time for inspection or objects to give inspection, or offers inspection elsewhere than at the office of his pleader, the Court may, on the application of the party desiring it, make an order for inspection in such place and in such manner as it may think fit: Provided that the order shall not be made when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the suit or for saving costs. (2) Any application to inspect documents, except such as are referred to in the pleadings, particulars or affidavit of the party against whom the application is made or disclosed in his affidavit of documents, shall be founded upon an affidavit showing of what documents inspection is sought, that the party applying is entitled to inspect them, and that they are in the possession or power of the other party. The Court shall not make such order for inspection of such documents when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the suit or for saving costs. 19. The Court shall not make such order for inspection of such documents when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the suit or for saving costs. 19. Verified copies.—(1) Where inspection of any business books is applied for, the Court may, if it thinks fit, instead of ordering inspection of the original books, order a copy of any entries therein to be furnished and verified by the affidavit of some person who has examined the copy with the original entries, and such affidavit shall state whether or not there are in the original book any and what erasures, interlineations or alterations: Provided that, notwithstanding that such copy has been supplied, the Court may order inspection of the book from which the copy was made. (2) Where on an application for an order for inspection privilege is claimed for any document, it shall be lawful for the Court to inspect the document for the purpose of deciding as to the validity of the claim of privilege [unless the document relates to matters of State.] (3) The Court may, on the application of any party to suit at any time, and whether an affidavit of documents shall or shall not have already been ordered or made, make an order requiring any other party to state by affidavit whether any one or more specific documents, to be specified in the application, is or are, or has or have at any time been, in his possession or power; and, if not then in his possession, when he parted with the same and what has become thereof. Such application shall be made on an affidavit stating that in the belief of the deponent the party against whom the application is made has, or has at some time had in his possession or power the document or documents specified in the application, and that they relate to the matters in question in the suit, or to some of them. 20. 20. Premature discovery.—Where the party from whom discovery of any kind or inspection is sought objects to the same, or any part thereof, the Court may, if satisfied that the right to the discovery or inspection sought depends on the determination of any issue or question in dispute in the suit, or that for any other reason it is desirable that any issue or question in dispute in the suit should be determined before deciding upon the right to the discovery or inspection, order that such issue or question be determined first, and reserve the question as to the discovery or inspection.” 5. Rule 21 C.P.C. of Order XI C.P.C. provides for the effects of non-compliance with the order of discovery. Rule 21 of Order XI is quoted as under : "21. Non-compliance with order for discovery.-(1) Where any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution, and, if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may apply to the Court for an order to that effect and an order may be made on such application accordingly, after notice to the parties and after giving them a reasonable opportunity of being heard. (2) Where an order is made under sub-rule (1) dismissing any suit, the plaintiff shall be precluded from bringing a fresh suit on the same cause of action." 6. Section 107 of C.P.C. provide for the powers of Appellate Court, which is quoted as under: Section 107. Powers of Appellate Court.- (1)Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power- (a) to determine a case finally; (b) to remand a case; (c) to frame issues and refer them for trial; (d) to take additional evidence or to require such evidence to be taken. (2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein. 7. Rule 33 of Order XLI C.P.C. quoted as under. 33. (2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein. 7. Rule 33 of Order XLI C.P.C. quoted as under. 33. Power of Court of Appeal.—The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection [and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees]: [Provided that the Appellate Court shall not make any order under section 35A in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.] 8. Learned Counsel for the petitioner submitted that the defendant will be entitled to ask for inspection of a document referred to in the plaint in order to formulate his defence and any denial of this right to inspect such document would amount to denying him to an opportunity to meet the case of the plaintiff as set up by him in his plaint. In this regard, learned counsel for the petitioner relied upon the judgment of Andhra Pradesh High Court in case of Peoples Education Society, Bombay v. The State of A.P. reported in 1971 (1) ALT 63 . Learned counsel for the petitioner has also relied upon the judgment in case of Jankidas v. Kaushalya Devi reported in AIR 1943 Lahore 207. 9. Contention of the learned counsel for the petitioner are misconceived. Prior to the amendment made by Act No. 46 of 1999, in Rue 15 of Order XI, every party to the suit was entitled for inspection ‘at any time’ but by the amendment as brought about by the amending Act no. 9. Contention of the learned counsel for the petitioner are misconceived. Prior to the amendment made by Act No. 46 of 1999, in Rue 15 of Order XI, every party to the suit was entitled for inspection ‘at any time’ but by the amendment as brought about by the amending Act no. 46 of 1999, the words ‘at or before the settlement of issues’ have been substituted for the words ‘at any time’. The amended Rules 15 of Order 11 prescribes a time limit for the purpose to inspect the document referred in the pleadings or affidavits and i.e. ‘at or before the settlement of issues’. This means that the inspection of document has to be completed by the time issues are settled and not later than that. 10. So far as the contention of the learned counsel for the petitioner that refusal to inspect the document would amount to denial of opportunity to defend, is also misconceived. In case of Peoples Education Society, Bombay (Supra), the Andhra Pradesh High Court held in paragraph no. 5 as under: “5. The defendant, having regard to the scope of Rule 15, will be entitled to ask for inspection of the documents referred to in the plaint in order to formulate his defence, and any denial of this right to inspect such documents would amount to denying him an opportunity to meet the case of the plaintiff as unfolded by him in his plaint.” 11. In case of Jankidas v. Kaushalya Devi (Supra), it has been held that inspection of document must be allowed under Order 11, Rule 15 when the when the document in question were themselves material facts supporting the plaintiff’s claim and there was some sort of direct or indirect reference to them in the plaint itself, and it would be impossible for the defendant to set up his defence unless he was allowed to know before the trial what were the precise contents. It has been further held in Jankidas v. Kaushalya Devi (Supra) that once the plaintiff makes reference to certain documents in the plaint, the defendant will be entitled to ask for inspection of those documents, it is for him to think of the lines on which he can formulate his defence and to deny the defendant of an inspection of the documents referred to in the plaint would be denying him the opportunity of fully disclosing his defence. The defendant, is therefore, entitled to ask for inspection of the document referred to in the plaint before filing his written statement. If they are not made available for inspection, then it follows that the plaintiff cannot rely upon them thereafter. 12. There is no dispute as to the principle of the law laid down by the aforesaid judgments but both the judgments were given prior to the amendment brought in Rule 15 of Order 11 by amending the Act No. 49 of 1999 which prescribes a time limit for making an application for inspection. Even earlier, in case of Nagpur Glass Works Ltd. and others v. Shree Onama Glass Works Ltd., Gondia reported in AIR 1938 Nag 239 wherein the Nagpur High Court has held in paragraph no. 5 as under: “5. This much however is certain: whether a party proceeds under O. 11, R. 15 or under O. 11, R. 18(2) he must act promptly and delay in itself may be a good ground for refusing to grant time for the filing of the written statement until after the inspection has been made. It is of course impossible to lay dawn any hard and fast rule but these observations form a general guide. 13. Coming to the facts of the present case, an application has been moved by the defendant/appellant at the stage of first appeal filed under Section 96 C.P.C. by the defendant/appellant after the suit was decreed against him. Since the suit has been contested on merits by the defendant/appellant by filing written statement and leading evidence there is nothing remains to be disclosed to the defendant/petitioner denial of which may lead to denial of opportunity to the defendant to prepare his defence. 14. Since the suit has been contested on merits by the defendant/appellant by filing written statement and leading evidence there is nothing remains to be disclosed to the defendant/petitioner denial of which may lead to denial of opportunity to the defendant to prepare his defence. 14. So far as the contention of the learned counsel for the petitioner is that in view of Section 107 C.P.C. and the powers of the appellate court under Order 41 Rule 33 C.P.C., the appeal is continuation of suit, therefore, the court below ought to have allowed the application filed by the petitioner is also misconceived for the reasons that though the appeal is continuation of the suit but in view of time limit as fixed by the statute itself, i.e. Rule 15 of Order 11, the said power cannot be exercised at the appellate stage. 15. So far as the contention of the learned counsel for the petitioner that in case of Salem Advocate Bar Association v. Union of India reported in 2005 (6) SCC 344 , the Supreme Court has held that inspection of documents ‘on or before the settlement of issues’ is discretionary and it does not mean that the inspection cannot be allowed after the settlement of issues, is also, misconceived. Though the Apex Court has held that the amendment is not mandatory but such a power cannot be exercised at the stage of appeal after contesting of suit on merits and passing of decree against the petitioner. 16. In view of the discussion as made above, I am of the view that the court below has committed no illegality in dismissing the application of the petitioner. 17. The writ petition devoid of merits and is, accordingly, dismissed.