Kamleshsingh Harnamsingh Chowhan v. Smt. Jayalaxmi Kantilal

Judgment

1. This petition has been filed impugning the order dated 7th March,2008, passed by the Small Causes Court, Mumbai, whereby the Application filed by the respondent under Order 11 Rule 14 of the Code of Civil Procedure to direct the petitioner to produce all the documents mentioned in the notice dated 12th February, 2008, came to be allowed.

2. It is the case of the petitioner that he is the landlord and co-owner of the suit building. The respondent is the mother of the deceased monthly tenant. The suit being RAE suit No. 316/498/2007 is filed by the petitioner against the respondent :2: interalia on the ground of non-user. The issues in the suit were framed by the Trial Court and directions were issued to the parties to complete the inspection of the documents on or before 9th January,

2008. The respondent has disputed the title of the petitioner and one of the issues framed in the suit is whether the petitioner is the landlord of the suit building. The affidavit of examination-in-chief was filed by the petitioner and the documents produced by him were marked as exhibits. Now the petitioner’s cross-examination is in progress. The petitioner alleges that during the cross-examination irrelevant questions were being asked and the respondent is unnecessarily calling upon the petitioner to produce the documents which are not relied upon by him and not relevant for the purpose of deciding the issues.

3. The petitioner’s case is that though the matter was part heard, the respondent’s Advocate had addressed a notice dated 12th February, 2008 under order 11 Rule 16 of C.P.C. calling upon the petitioner to produce the following documents:- (1) All accounts maintained by the petitioner in respect of the suit :3: building and property and particularly in respect of all outgoings, receipts etc. (2) Ledger Accounts in respect of the suit building and property as maintained by the petitioner on Computer. (3) Papers and Proceedings in respect of the suits, decrees in respect whereof have been submitted in Court. (4) Rent Books, Counter foils of rent books in respect of all the premises in the suit building. (5) List of tenants paying rent to the petitioner alongwith the details of the premises in the suit building. (6) List of premises in possession of the petitioner in the suit building.

4. By letter dated 16th February, 2008 the petitioner declined to comply with the notice of the respondent’s Advocate on the ground that the said documents are not referred nor relied upon by the petitioner in the pleading/affidavit.

5. The respondent then, by his Application dated 7th March, 2008 under Order 11 Rule 14 of CPC sought an order from the Court to direct the petitioner to produce all the documents as mentioned in the notice dated 12th February, 2008. The petitioner opposed the Application by filing his reply. After hearing :4: the parties, the learned Trial Judge by the impugned order dated 7th March, 2008 allowed the Application of the respondent and directed the petitioner to produce all the documents except the document at serial No.3 as mentioned in the notice dated 12th

March, 2008. Aggrieved by this order the petitioner has filed this petition.

6. The learned Counsel for the petitioner submitted that the oral application by the respondent for production of documents was already refused by the Court by its order dated 13th February, 2008 and the written application having same genesis ought not to have been allowed. The learned Counsel further submitted that the provisions of Order 11 Rule 14 cannot be pressed into service after invocation of the Order 11 Rule 16. He contended that the issues in the suit have already been framed on 15th December, 2007 and therefore, Order 11 Rule 14 or 16 could not have been invoked and the petitioner cannot be called upon to produce the documents in cross-examination which are not referred or relied upon by him in his pleadings. The learned Counsel submitted that the Trial Court ought not to have :5: passed the impugned order and there was an error on the face of the record which has resulted in grave injustice and the impugned order is required to be set aside. In support of his contention the learned Counsel for the petitioner relied upon the following Municipal Commissioner for Greater cases viz.- (1) Municipal Commissioner for Greater Municipal Commissioner for Greater V/s M/s Sangam Cinema, reported in 1992(3) Bombay V/s M/s Sangam Cinema, Bombay V/s M/s Sangam Cinema, Bombay Indian Overseas Bank V. Bom. C.R. 482 (2) Indian Overseas Bank V. Indian Overseas Bank V. Woollen Mills Pvt. Ltd, reported in AIR Shreekrishna Woollen Mills Pvt. Ltd, Shreekrishna Woollen Mills Pvt. Ltd, Shreekrishna Union Bank of India V. Hemantlal 1988 Bombay 343 (3) Union Bank of India V. Hemantlal Union Bank of India V. Hemantlal Vegad, reported in AIR 1991 Gujarat 113, Ranchhodbhai Vegad Ranchhodbhai Vegad Ranchhodbhai (4) Vinod Kumar V. Shanti Devi and others Vinod Kumar V. Shanti Devi and others, reported Vinod Kumar V. Shanti Devi and others in AIR 1986 Madhya Pradesh 19.

7. Per contra, the learned Counsel for the respondent submitted that the petitioner is not the owner and landlord respect of the suit building and that he has admitted in the evidence that he is in possession of the counter-foils of the rent receipts issued to various tenants, receipts for payment of statutory taxes, income and expenditure account, etc. On discovering that the petitioner is in possession of the documents, the respondent’s Advocate addressed a notice dated 12th February, 2008 to the petitioner :6: under Order 11 Rule 16 of CPC, calling upon him to produce the documents enumerated therein.

8. The learned Counsel submitted that under Order 11 Rule 14 C.P.C. it is lawful for the Court at any time during the pendency of the suit to order production of the documents in possession of the party relating in the matter in respect of the suit. Accordingly, the respondent has issued notice to the petitioner to produce the documents. However, the petitioner has refused to produce the documents which necessitated the filing of the Application by the respondent. He further submitted one of the issues in the suit relates to the title of the petitioner to the suit building and the impugned order has been rightly passed. He further urged that this Court in exercise of the supervisory jurisdiction ought not to convert itself into a Court of Appeal and ought not to interfere with the impugned order.

9. In support of his contentions, the learned Counsel for the respondent relied upon the following Maharaja Srish Chandra Nandi V. Kala cases viz.- (1) Maharaja Srish Chandra Nandi V. Kala Maharaja Srish Chandra Nandi V. Kala Chand Roy Roy Chand Chand Roy, reported in AIR (29) 1942 Calcutta 445 (2) :7: Devi Rai V/s Ram Chander Rai, reported in Surya Devi Rai V/s Ram Chander Rai, Surya Devi Rai V/s Ram Chander Rai, Surya Chandrasekhar Singh and others V/s (2003) SCC 675 (3) Chandrasekhar Singh and others V/s Chandrasekhar Singh and others V/s Ram Singh and others, reported in (1979) 3 SCC Siya Ram Singh SiyaSiya Ram Singh

10. I have heard the learned Counsel for the parties and perused the material on record including the impugned order.

11. The point which arises for consideration is whether the Trial Court was right in directing the petitioner to produce the documents as mentioned in the notice, dated 12th February, 2008. To examine this issue it would be necessary at the outset to refer to the provisions of Section 30 and Order 11 Rule 14,15 and 16 of the CPC, which are reproduced hereinbelow :- S.S.S. 30 : Power to order discovery and the 30 : Power to order discovery and the 30 : Power to order discovery and the like.- Subject to such conditions and like.- like.- limitations as may be prescribed, the Court may, at any time, either of its own motion or on the application of any party,- (a) make such order as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or :8: other material objects producible as evidence; (b) issue summonses to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid; (c) order any fact to be proved by affidavit. R.14: Production of documents.- It "O.11 R.14: Production of documents.- "O.11 R.14: Production of documents.- "O.11 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." "O.11 R.15: Inspection of documents referred R.15: Inspection of documents referred "O.11 "O.11 R.15: Inspection of documents referred tototo in pleadings or affidavits.- in pleadings or affidavits.- Every party to in pleadings or affidavits.- a suit shall be entitled on or before the settlement of issues 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 to 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 and otherwise as the Court shall think fit." :9: "O.11O.11 R.16 : Notice to produce.- Notice to O.11 R.16 : Notice to produce.- R.16 : Notice to produce.- any party to produce any documents referred to in his pleadings or affidavits shall be in Form No.7 Appendix C, with such variations as circumstances may require."

12. It cannot be disputed that the notice dated 12th February, 2008 was issued for production of documents under Order 11 Rule 16 inasmuch as the notice specifically states as follows :- " In pursuance of the provisions of Order 11 Rule 16 I have to call upon your client through you to produce the following documents with regard to the averments made in the plaint....."

13. Thus, a bare reading of the notice dated 12th February, 2008 and Rule 16 of Order 11 of the CPC reveals that the documents which are sought to be produced for inspection are those documents which are referred to in the pleadings. The said notice specifically mentions the words "with reference to the averments made in the plaint". However, pertinently, the documents enumerated in the notice do not form part of the pleadings. :10:

14. It is further to be noted that inspection of documents under Rule 15 of Order 11 CPC may be ordered of documents which are referred to in the pleadings or affidavits, including those or particulars as disclosed in the Affidavit of documents of other party, and under Rule 18(2) inspection of ‘other documents’ in possession or power of other party.

15. The respondent having failed in his endeavour to have the documents produced by the petitioner by giving notice under O.11 R.16 of the CPC, thereafter made the Application in question with a prayer which reads thus :- "(a) That this Honourable Court be pleased to direct the Plaintiff under the provisions of Order 11 Rule 14 of the CPC to produce all the documents mentioned in the notice dated 12th February, 2008 issued by the defendants to the plaintiff (Exh.A14) before this Honourable Court." :11:

16. Though under order 11 Rule 14 of CPC it is the discretion of the Court to order production of documents from any party, unfortunately in the present case, this discretion has not been exercised in a judicious manner by the Trial Court. The Trial Court ought to have appreciated that the notice was issued under Order 11 Rule 16 of the CPC which relates to production of documents relied upon by the petitioner and the respondent having failed in their attempts to have the documents produced, has simplicitor made this Application by adding the following words in the prayer clause "to direct the plaintiff under Order 11 Rule 14 to produce all the documents....". The Trial Court, as it appears, has not applied its mind and allowed the Application of the respondent by stating in the impugned order as follows :- ".... If the plaintiff produces those documents, it will help to decide the issue of ownership"

17. It is not understood as to how the accounts, rent books, counter foils, list of tenants, list of :12: premises (as mentioned in the notice) would be of any relevance in deciding the ownership of the suit property, as is observed in the impugned order. In fact on going through the cross-examination of the respondent, the respondent has specifically stated therein as follows :- " It is true that apart from Exhibit 21 letters of administration, I have no document to show that I am the co-owner and landlord of the suit property".

18. I am informed that the suit building is about 100 years old. In my view, no useful purpose would be served in directing the petitioner to produce "all" the counterfoils of the rent receipts of the tenants, rent books, ledger accounts, list of tenants, list of premises etc. This fishing inquiry is uncalled for and would only lengthen the litigation and it would invite unnecessary and irrelevant cross-examination. In this regard reference may be made to the decision in the case of VS. DR. S.B.AMARKHED AND ORS. reported BASANAGOUDA VS. DR. S.B.AMARKHED AND ORS. reported BASANAGOUDA VS. DR. S.B.AMARKHED AND ORS. reported BASANAGOUDA