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2025 DIGILAW 197 (RAJ)

Sikander Singh v. Mander Singh

2025-02-04

NUPUR BHATI

body2025
Order : 1. The instant writ under Article 227 of the Constitution of India has been filed by the petitioners challenging the order dated 10.09.2024 (Annex.10) passed by the Senior Civil Judge, Srikaranpur (‘learned trial court’) in Civil Misc. Case No.26/2024 (Annex.2), whereby the application preferred by the petitioner under Order 11 Rule 12 & 14 CPC has been rejected. 2. The instant writ has been filed seeking the following reliefs: “It is, therefore, humbly and respectfully prayed that this writ petition of the petitioners may kindly be allowed and by an appropriate writ order or directions:- (i) The impugned order dated 10.09.2024 (P/10) passed by the Senior Civil, Judge, Srikaranpur, in Civil Misc case no. 26/24 CIS no. 26/2024 (Mander Singh vs. Sikaner Singh & ors.) may kindly be quashed and set aside. (ii) The application dated 02.11.2023 (P/8) filed by the petitioners under Order 11 Rule 12, 14 read with Section 151 of CPC may kindly be allowed and the respondent-plaintiff Mander Singh be directed LO produce the original adoption deed dated 15.04.1966 and gun license no. 246 dated 21.07.1983, which is in his possession before the learned trail court. (iii) Any other appropriate writ, order or direction which this Hon'ble Court may deems just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner. (iv) Writ petition filed petitioner may kindly be allowed with costs.” 3. Briefly stated, the facts of the case are that the respondent- plaintiff filed a civil suit (Annex.2) for declaration of respondent- plaintiff as the first class successor of Late Mukhtyar Singh. The petitioners-defendants, the children of Late Mukhtyar Singh, filed written statement (Annex.3) stating inter alia that the respondent- plaintiff is adopted son of Mr. Gurdayal Singh and an adoption deed dated 05.04.1966 was executed in this behalf. In the written statement (Annex.3) it was also stated that a succession certificate dated 02.12.1988 was issued in the name of the petitioners therefore the respondent-plaintiff has no right in the property of by Late Mukhtyar Singh. Subsequently, the petitioner no.1 (Mr. Sikandar Singh) moved an application (Annex.8) under Order XI Rule 12 & 14 read with Section 151 of CPC to the effect that the respondent-plaintiff be directed to place on record the adoption deed dated 05.04.1966 (Annex.1) and the gun license no.246 dated 21.07.1983 which is in possession of the respondent-plaintiff. Subsequently, the petitioner no.1 (Mr. Sikandar Singh) moved an application (Annex.8) under Order XI Rule 12 & 14 read with Section 151 of CPC to the effect that the respondent-plaintiff be directed to place on record the adoption deed dated 05.04.1966 (Annex.1) and the gun license no.246 dated 21.07.1983 which is in possession of the respondent-plaintiff. The learned trial court vide order dated 10.09.2024 (Annex.10) dismissed the application (Annex.8) while holding that the documents sought to be produced by the petitioners are not in the possession of respondent-plaintiff and therefore, the respondent-plaintiff cannot be directed to produce the said documents. Aggrieved by the same the instant writ has been filed by the petitioners. 4. The learned counsel for the petitioners submits that respondent-plaintiff purchased lands vide sale deeds dated 14.06.1968 (Annex.11) and 24.04.1997 (Annex.12) and in these sale deeds the name of the respondent-plaintiff has been written as Mr. Mander Singh adopted son of Mr. Gurdayal Singh thus, the respondent-plaintiff himself admitted that he is adopted son of Mr. Gurdayal Singh. He also submits that late Mr. Mukhtyar Singh executed his will dated 11.12.1986 (Annex.14), in which he disclosed that the respondent-plaintiff (Mr. Mander Singh) was given in adoption to Mr. Gurdayal Singh. He also submits that Mr. Sucharan Singh and Late Mr. Mukhtyar Singh moved an application dated 12..04.1983 (Annex.15) for exchange of land and in response to this application the respondent-plaintiff filed the reply dated 06.09.1983 (Annex.15) and mentioned himself as the adopted son of Mr. Gurdayal Singh. He also submits that Mr. Gurdayal Singh (adopted father of the respondent-plaintiff) died on 03.02.2005 and the respondent-plaintiff got a condolence message (Annex.16) published in a newspaper, in which the respondent-plaintiff mentioned himself as the adopted son of Mr. Gurdayal Singh. 5. The learned counsel for the petitioners further submits, while relying on Order XI Rules 13 of Code of Civil Procedure, 1908 (‘CPC’), that in case a party objects to the production of documents sought to be produced under an application filed under Order XI Rule 12, CPC from him on the ground that the same are not in his possession then an affidavit in terms of form no.5 of Appendix-C has to be submitted by such party, however, in the present case no such affidavit has been filed by the respondent- plaintiff. 6. 6. The learned counsel for the petitioners also submits that affidavit under Order XI Rules 13, CPC has intentionally been not filed by the respondent-plaintiff . He also submits that the learned tribunal has not considered the averrments made by the petitioner no.1 in the application (Annex.8). 7. Per contra, learned counsel for the respondent-plaintiff submits that the an affidavit under Order XI Rule 13, CPC is required to be submitted by a party only in case where an order under Order XI Rule 12, has been passed against such party whereas no such order has been passed in the present case. 8. Learned counsel for the respondent-plaintiff also submits that the respondent-plaintiff has submitted an affidavit along with reply to the application (Annex.8) to the effect that the respondent-plaintiff neither have knowledge of the adoption deed (Annex.1) nor have used the same till date. He also submits that the respondent-plaintiff sought information regarding gun license no.246 dated 21.07.1983 from Sub-Divisional Magistrate, Srikaranpur and got the information that the said gun license is not recorded in the register. He also submits that the petitioners have forged the gun license no.246 dated 21.07.1983 and the respondent-plaintiff has also lodged a FIR regarding the same. He also submits that Mr. Mander Singh s/o Mr. Mukhtyar Singh and Mr. Mahendar Singh S/o Gurdayal Singh are two different persons. 9. Heard the counsel for the parties and perused the material available on record. 10. This court at the outset finds it apposite to refer to the relevant provision of law pertaining to the controversy in the case at hand. Rules 12, 13, 14 and 21 of Order XI, CPC are being reproduced as under: “12. Application for discovery of documents.— Any party may, without filing any affidavit, apply to the Court for an order directing any other party to any suit to make discovery on oaths, of the documents which are or have been in his possession or power, relating to any matter in question therein. Application for discovery of documents.— Any party may, without filing any affidavit, apply to the Court for an order directing any other party to any suit to make discovery on oaths, of the documents which are or have been in his possession or power, relating to any matter in question therein. On the hearing of such application the Court may either refuse or adjourn the same, if satisfied that such discovery is not necessary, or not necessary at that stage of the suit, or make such order, either generally or limited to certain classes of documents, as may, in its discretion be thought fit: Provided that discovery shall not be ordered 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. 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. 14. Production of documents.— It shall be lawful for the Court, at any time during the pendency of any suit, to order the production by any party thereto, upon oath, of such of the documents in his possession or power, relating to any matter in question in such suit, as the Court shall think right; and the Court may deal with such documents, when produced, in such manner as shall appear just.” 11. Thus, what emerges from the above provisions is that on application of any party to the suit an order for discovery of documents may be passed by the court under Order XI Rule 12, CPC against any other party to the suit provided that such documents are or have been in possession of the such other party and are necessary for disposing the suit or for saving costs. Further, the court can order production of any document by any party during the pendency of the suit under Order XI Rule 14, CPC which is in possession or power of such party and which relates to any matter in question in the suit. Further, the court can order production of any document by any party during the pendency of the suit under Order XI Rule 14, CPC which is in possession or power of such party and which relates to any matter in question in the suit. Further, Order XI Rule 13, CPC makes it evident that the same would be applicable only when an order for discovery of document(s) have been made under Order XI Rule 12, CPC. 12. This court finds that the learned trial court has observed that the respondent-plaintiff, in clear terms, has denied the fact that the adoption deed dated 05.04.1966 and Arms license No.246 dated 21.07.1983 are in his possession and has also submitted an affidavit to this effect. Moreover, the respondent-plaintiff has contended that the adoption deed dated 05.04.1966 to be forged and fraudulent. Learned trial court has also observed that the respondent-plaintiff also submitted an application before Tehsildar, Shrikaranpur seeking information as to whether any property has been inherited/acquired by him or his family members on the basis of such adoption deed; and pursuant thereto a report was presented, which reflected that the wife of the respondent-plaintiff has inherited the property of Gurdayal Singh s/o Lal Singh by way of a will, however, the said property was not inherited by way of adoption deed dated 05.04.1966 and also the adoption deed dated 05.04.1966 has not been presented on the said ‘Rakaba’. Further, the respondent-plaintiff has presented the information received from the Arms Office, SDM, Shrikarnapur before the learned trial court, which reflects that neither any record is available with respect to the issuance of Arms license No.246 dated 21.07.1983 in the name of Mr. Mander Singh (respondent-plaintiff) nor any Arms license No.246 dated 21.07.1983 is recorded in the register. It has also been observed by the learned trial court that the respondent-plaintiff has placed a copy of the reply to the notice given by the Police Station, Kesrisinghpur with respect to the submission of Arm, wherein the respondent-plaintiff has clearly stated that neither any Arms license has been issued in his name nor such gun is in his possession. 13. 13. This court finds that the learned trial court after taking note of these facts has arrived at a conclusion that the adoption deed dated 05.04.1966 and Arms license No.246 dated 21.07.1983 are not in possession and power of the respondent-defendant, thus, their discovery and production cannot be ordered. This court while concurring with the order of the learned trial court is of the considered view that when the respondent-plaintiff has categorically denied to be in possession and power of the adoption deed dated 05.04.1966 and the Arms license No.246 dated 21.07.1983, he cannot be compelled to produce the same. Therefore, this court does not find any infirmity with the impugned order passed by the learned trial court. 15. Further, as far as the contention of the petitioners with respect to the affidavit in terms of Order XI Rule 13, CPC is concerned, this court finds that the provisions of Order XI Rule 13, CPC are applicable only when an order of discovery under Order XI Rule 12, CPC has been passed against a party and such party objects to produce the same. However, in the present case the learned trial court has not made any order of discovery against the respondent-plaintiff under Order XI Rule 12, CPC, thus, the provisions of Order XI Rule 13, CPC are not applicable. 16. Therefore, in light of the above discussion, the instant writ petition is dismissed.