The court, therefore, is clearly empowered and it shall be lawful for it to order the production, by any party to the suit, such documents in his possession or power relate to any matter in question in the suit provided the court shall think right that the production of the documents are necessary to decide the matter in question. The court also has been given power to deal with the documents when produced in such manner as shall appear just. Therefore, the power to order production of documents is coupled with discretion to examine the expediency, justness and the relevancy of the documents to the matter in question. These are relevant considerations which the court shall have to advert to and weigh before deciding to summoning the documents in possession of the party to the election petition
Kamleshsingh Harnamsingh Chowhan
V/s
Smt. Jayalaxmi Kantilal
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2844 OF 2008
CORAM :
A.A. SAYED, J.
29.09.2008
Citation;2009(supp) BomCR 814
has been filed
March,2008, passed
impugning
by
the
the Small
Court, Mumbai, whereby the Application filed
the respondent under Order 11 Rule 14 of the Code
of Civil
by
produce
Procedure
all
to
direct
the
petitioner
the documents mentioned in
the
to
notice
dated 12th February, 2008, came to be allowed.
2.
the
It
is
landlord and co-owner of the suit building.
respondent
tenant.
filed
the case of the petitioner that he
is
the
mother of the
The suit being RAE suit No.
by
the
petitioner
against
deceased
is
The
monthly
316/498/2007 is
the
respondent
interalia on the ground of non-user.
the were
framed
by
the
Trial
Court
in
and
suit
The issues
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
petitioner
the
and one of the issues framed in the
suit
is whether the petitioner is the landlord of the suit
The affidavit of examination-in-chief was
building.
filed by the petitioner and the documents produced by
were
marked as exhibits.
him
cross-examination
petitioner’s
The
petitioner
that during the cross-examination irrelevant
questions
were
unnecessarily
being
asked and the
respondent
is
calling upon the petitioner to produce
documents
which are not relied upon by him
the
in progress.
alleges
is
Now the
and
not relevant for the purpose of deciding the issues.
3.
matter
The
petitioner’s
case
is
that
though
the
was part heard, the respondent’s Advocate had
addressed a
order Rule
11
notice dated 12th February, 2008
16
of
C.P.C.
calling
under
upon
the
petitioner to produce the following documents:-
(1)
All
accounts
petitioner
in
maintained
respect of
by
the
the
suit
building and property and particularly
in respect of all outgoings, receipts
etc.
(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
petitioner in the suit building.
4.
Ledger Accounts in respect of the suit
building and property as maintained by
the petitioner on Computer.
(2)
By
letter
petitioner
16th
February,
2008
the
declined to comply with the notice of the
respondent’s
documents
dated
the
Advocate
are
on the ground that
not referred nor relied upon
the
by
said
the
petitioner in the pleading/affidavit.
5.
The
7th
an
March, 2008 under Order 11 Rule 14 of CPC sought
order from the Court to direct the petitioner
produce
dated
the
respondent then, by his Application dated
to
all the documents as mentioned in the notice
12th
February, 2008.
The petitioner
Application by filing his reply.
After
opposed
hearing
parties, the learned Trial Judge by the impugned
of
dated 7th March, 2008 allowed the
the
respondent
produce all
the
serial No.3
March, 2008.
and directed the
petitioner
documents except the
document
as mentioned in the notice
The
to
dated
at
12th
Aggrieved by this order the petitioner
has filed this petition.
6.
Application
order
the
learned
Counsel
for
the
petitioner
submitted that the oral application by the respondent
production
of documents was already refused
by
the Court by its order dated 13th February, 2008 and
for
the written application having same genesis ought not
to
have
been allowed.
that
cannot
14
pressed into service after invocation
the
in
be
the provisions of Order 11
of
Order 11 Rule 16.
the
December,
further
Rule
submitted
The learned Counsel
suit
have
He contended that the
already
been
framed
issues
on
15th
2007 and therefore, Order 11 Rule 14 or 16
could not have been invoked and the petitioner cannot
be
called
upon
cross-examination
upon
by
submitted
to
which
produce
the
documents
are not referred or
him in his pleadings.
that
the
The learned
Trial Court ought not
in
relied
Counsel
to
have
face
of the record which has resulted in
injustice
set
and
aside.
Counsel
cases
on
grave
the
the impugned order and there was an error
the impugned order is required to
be
passed
In support of his contention the learned
for the petitioner relied upon the following
viz.-
V/s
M/s Sangam Cinema, reported
Bom. C.R.
482
(2)
Indian
in
Overseas
Shreekrishna Woollen Mills Pvt.
Greater
1992(3)
Bank
Bombay
(1) Municipal Commissioner for
V.
Ltd, reported in AIR
Hemantlal
1988 Bombay 343 (3) Union Bank of India V.
Ranchhodbhai Vegad, reported in AIR 1991 Gujarat 113,
Vegad
(4)
Shanti Devi and others, reported
others
Vinod Kumar V.
in AIR 1986 Madhya Pradesh 19.
Per
contra,
for the
submitted that the petitioner is not the
and landlord respect of the suit building and
7.
respondent
owner
that
he
the
learned
Counsel
has admitted in the evidence that he is
in
possession of the counter-foils of the rent receipts
issued various tenants, receipts for payment
to
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
under
Order
11 Rule 16 of CPC, calling upon him
The learned Counsel submitted that under Order
Rule 14 C.P.C.
during
production
party
the
of
pendency
the
of
the
suit
to
documents in possession
order
of
the
relating in the matter in respect of the suit.
Accordingly,
time
it is lawful for the Court at any
petitioner
the respondent has issued notice to the
to
produce the documents.
11
8.
produce the documents enumerated therein.
to
However,
the
petitioner has refused to produce the documents which
the
filing of the Application
respondent. He further submitted one of the
necessitated
by
the
issues
in the suit relates to the title of the petitioner to
suit
building and the impugned order
the
rightly
passed.
has
been
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.
Counsel
In
support
of his contentions,
the
learned
for the respondent relied upon the following
cases viz.- (1) Maharaja Srish Chandra Nandi V.
Kala
Chand Roy, reported in AIR (29) 1942 Calcutta 445 (2)
Roy
Devi
Surya
Rai
V/s Ram Chander
Rai,
reported
in
Ram Singh and others, reported in (1979) 3
118.
10.
I
parties
have
heard
SCC
Siya
(2003) SCC 675 (3) Chandrasekhar Singh and others V/s
the learned
Counsel
for
the
and perused the material on record including
whether
point
the
petitioner
which arises for consideration
The
Trial Court was right in directing
to produce the documents as mentioned
11.
the impugned order.
the notice, dated 12th February, 2008.
this issue it would be necessary at the
refer to Rule 14,15
To
is
the
in
examine
to
the provisions of Section 30 and Order 11
outset
and 16 of the CPC, which are
reproduced
hereinbelow :-
S.
30 : Power to order discovery and the
like.-
Subject
to
such conditions
and
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
as
other material objects producible
evidence;
(c) order
affidavit.
(b) issue summonses to persons whose
attendance is required either to give
evidence or to produce documents or
such other objects as aforesaid;
any fact to be
proved
by
"O.11 R.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."
"O.11 R.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 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."
to
to
in
as
12.
12th
It
cannot
February,
be disputed that the notice
2008
under
documents
"O.11 R.16 : Notice to produce.- Notice
O.11
any party to produce any documents referred
in his pleadings or affidavits shall be
Form No.7 Appendix C, with such variations
circumstances may require."
was issued for
Order
dated
production
11 Rule 16 inasmuch
as
of
the
In pursuance of the provisions of Order
Rule
"
notice specifically states as follows :-
16
I
have
to call
upon
your
11
client
with
through you to produce the following documents
regard
to
the averments
made
in
the
plaint....."
13.
Thus,
February,
reveals
a bare reading of the notice dated 12th
2008
that
and Rule 16 of Order 11 of
the
the documents which are sought
to
CPC
be
produced for inspection are those documents which are
referred to
specifically
the
in
mentions
averments
pertinently,
the
made
pleadings.
The
said
notice
the words "with reference
in
the
plaint".
the documents enumerated in the
to
However,
notice
do not form part of the pleadings.
under
documents
ordered
of
be
of
pleadings
inspection
or
as
of
disclosed
other
of
‘other
party,
in the
those or
Affidavit of
including
in
may
the
and
under
documents’ in
Rule
18(2)
possession
or
respondent having failed in his endeavour
have the documents produced by the petitioner
giving
made
CPC
to
The
of Order 11
affidavits,
power of other party.
15.
15
documents which are referred to
particulars
documents
Rule
is further to be noted that inspection
It
14.
by
notice under O.11 R.16 of the CPC, thereafter
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."
Though under order 11 Rule 14 of CPC it is the
of
documents from
present
in
the
Court
any
to
party,
order
production
unfortunately
in
the
case, this discretion has not been exercised
a judicious manner by the Trial Court.
Court
of
discretion
16.
The Trial
ought to have appreciated that the notice
issued
under
Order
11
Rule 16 of
the
CPC
was
which
attempts
and the respondent having failed in their
to
simplicitor
have
the
documents
ig
petitioner
relates to production of documents relied upon by the
made
this
Application
produced, has
by the
adding
words in the prayer clause "to direct the
plaintiff under Order 11 Rule 14 to produce all
following
documents....".
the
The Trial Court, as it appears, has
applied its mind and allowed the Application of
the respondent as
not
by stating in the impugned order
follows :-
"....
If
the
plaintiff
produces
those
documents, it will help to decide the issue of
ownership"
17.
rent
It
is not understood as to how the
accounts,
books, counter foils, list of tenants, list
of
premises (as mentioned in the notice) would be of any
in
property, as is observed in the impugned order.
on
the ownership
the
suit
In
going through the cross-examination of
respondent,
the
respondent has specifically
therein as follows :-
It
is
true
that apart
from
the
stated
Exhibit
21
"
of
fact
deciding
relevance
letters
of administration, I have no document
to show that I am the co-owner and landlord of
18.
I
100
am informed that the suit building is about
years old.
served
In my view, no useful purpose
in
directing the petitioner
be
the suit property".
"all"
the
tenants, rent
list of premises etc.
uncalled
litigation
irrelevant
reference
books,
for
and
ledger
and
it
would
would
accounts,
list
the
of
This fishing inquiry
only
invite
cross-examination.
In
lengthen
unnecessary
this
the
and
regard
may be made to the decision in the case of
BASANAGOUDA VS.
in
produce
counterfoils of the rent receipts of
tenants,
is
to
would
DR.
S.B.AMARKHED AND ORS.
reported
(1992) 2 SCC 612 , wherein the Honourable Supreme
Court,
while
dealing
with Order 11
Rule
14,
the
documents is
"Therefore
observed as follows :-
has
power to order production
coupled
with
discretion
of
to
examine the expediency justness and relevancy
of documents to the matter in
These
are
question.
relevant consideration
the
which
the
court shall have to advert to and weigh before
to
summoning
ig
deciding
possession
of
the
party
the
documents
to
the
in
election
petition....."
It was therefore
Court in the present
19.
expediency,
before
incumbent upon
case to
have
the
Trial
examined
justness and relevancy of the
the
documents
giving such directions for production of
the
documents, more particularly, when the said documents
are not even relied upon by the petitioner.
20.
It
examine
may be useful at this juncture to
Order 11 of CPC and Rules thereunder.
further
Order
11 deals with discovery and inspection.
Rules 1
to
11 deal with discovery of facts, whereas Rules 12 to
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deal with discovery, production and inspection of
documents
- in other words, discovery of
documents.
20
21 lays down the consequences of non-compliance
with the order of discovery.
Rule
Rule 22 allows answers
in interrogatories to be used in evidence by parties.
Rule 23 deals with application of this Order to minor
and
disability.
the
Thus,
narrow
persons
under
of
discovery
of
avoid
In the
there
as
the
and
controversy,
case,
down
facts
is
expenses and shorten litigation.
unnecessary
respondent
and
what is required to be noted
discovery
documents
instant
defendants
ig
that
the
plaintiffs
to
is
no
explanation
why the exercise of
by
delivery
the
of
interrogatories in writing was not carried out by him
before the issues were framed and in any event before
the
as
for
suit became part heard.
There is no explanation
to why inspection of the documents was not sought
by
CPC.
sought
the respondent under Order 11 Rule 18(2)
The
documents,
which are
during the midst of cross-examination of the
petitioner,
landlords
during
are
and
it
the production of
of
ordinarily
available
cannot be said that it
with all
was only
the course of cross-examination, that it
discovered
was
that the documents were in the possession
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of the petitioners.
cross-examination
ample
power
relating
any
to
to
unfettered, and the Court
order production
of
any
has
document
the matter in question by any party
stage
and
ultimately
it
is
decide
admissibility
of
for
as
the
the
to
learned
the
to
under
However the
conferred
production of documents which are not relied upon by
and keeping in view the provisions of
14
Rule
itself
of
of the CPC and after
production
test
the production
for fairly
case
having
for
it
question
of
the documents
sought
for.
of the documents would be
can hardly be said that the
are
justness
for the Court to consider is
disposing of the suit.
In
Order
satisfied
about the expediency, relevancy and
ultimate
Judge
parties, is to be exercised judiciously and with
caution
11
learned
discretion
the
the
at
and
provided
136 of the Indian Evidence Act.
upon
Judge
relevancy
documents as
ig
Section
is
It is no doubt true that normally the power of
21.
The
whether
necessary
the
instant
documents,
necessary for fairly disposing of
in
the
suit.
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22.
It
may
further
be
useful
to
note
the
provisions of Section 114 of the Indian Evidence Act,
"
Court
may
presume
which reads thus :-
existence
of
certain
facts.- The Court may presume the existence of
fact
which
happened,
it
regard
thinks
being
had
likely
to
to
the
have
common
any
of
natural events, human conduct
and
public and private business,in their relation
ig
course
to the facts of the particular case".
Illustration
Act
(g)
provides
under Section 114 of the
that
the Court may presume
Evidence
that
the
evidence which could be and is not produced would, if
produced, be unfavourable to the person who withholds
it.
In
the instant case, looking to the facts
and
circumstances of the present case, at the highest the
Trial
Court could have drawn an adverse inference in
the matter, if the Court comes to the conclusion that
vital documents were being withheld.
23.
Coming to the decisions cited on behalf of the
Petitioner,
it
is to be noted that in the
case
of
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OVERSEAS BANK VS.
INDIAN
SHREEKRISHNA WOOLEN
MILLS
that
Under
discretion
stage
to
O.11
R.14
the
Court
has
the
Court
PVT.LTD (Supra) it was held by a Single Judge of this
order production of documents at
any
directing the documents relating to any matter
in question in such suit to be produced and it is not
for
the
documents whenever
Court to
direct
asked for.
production
In paragraph
mandatory
15
R.14 production can be granted of documents only
they relate to any matter in question in such suit".
Application
obliged
case,
merely
O.11
because
if
an
is made would not mean that the Court was
to
grant
without
documents
present
the
ig
decision,
in
Under
of
this
Thus,
it is observed that "..
of
the
prayer
for
production
of
considering the relevancy of the
of VS.
documents.
24.
The
HEMANTLAL
VS.
cases
BANK
OF
INDIA
RANCHHODBHAI VEGAD (Supra) and VINOD KUMAR
DEVI AND ORS (Supra) are however of no
to the petitioner in the instant case in
SHANTI
assistance
asmuchas
UNION
in
those cases the Court was dealing
with
the provisions under Order 11 Rule 12 of the CPC and
not Order
11
Rule
14
or 16.
The
case
of
the
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Municipal Corporation for Gr.Bombay vs.
Cor oration
(Supra)
would also not be applicable in
the
In that case the Division
facts of the present case.
Bench
Sangam
Cinema
M/s.
of this Court was dealing with a matter
where
the witness was being examined in cross and was asked
to produce documents in the cross-examination without
giving any notice in that regard.
that
the practice of calling upon
witness
observed
The Division bench
while under cross-examination to produce this or that
in
is at variance with the procedure laid down
ig
document
law as the steps provided under the provisions of
of giving notice and making an application were
not followed. this
CPC
In the present case,
however,
procedure has been followed, though belatedly.
25.
the
noted
VS.
In
so far as the decision cited on behalf
Respondent
that
KALA
Calcutta
utta
proposition
is concerned, it is required
to
in case of MAHARAJA SRISH CHANDRA
CHAND
High
ROY (Supra) the
Court
was
Single
dealing
with
of
be
NANDI
Judge
of
general
of law in relation to Section 13 of
the
Indian Evidence Act which speaks about facts relevant
when right
that case
or custom is in question.
The Court
was not at all dealing with the
in
specific
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issue of production of documents under O.11 R.
hand.
This decision therefore is of no help
the respondent.
26.
for
VS.
CHANDER RAI (Supra) and CHANDRASHEKHAR SINGH VS.
RAM
the
SINGH(Supra) cited by the learned
High
Counsel
respondent are with regard to the scope
interference
Court,
conferred
In
of the
the above cases it was held that
power
of
and the power of superintendence by the
constitution.
this
in case of SURYA DEVI RAI
SIYA
decisions
ig
RAM
The
to
in
with which we are concerned in the case
16 of C.P.C.
14 or
under
by
Article
Article 227 is
to
227
be
exercised
sparingly and only in appropriate cases, in order to
keep subordinate
the
their
and
authority
that
bounds
and not for correcting mere
of
errors
the power cannot be invoked to correct an
of fact which only a superior court can do
error
courts within the
in
exercise of
appeal. The
its
statutory power as
the
court
High Court cannot, in exercise of
of
its
jurisdiction under Article 227, convert itself into a
court of Appeal.
There can be no dispute to this law
laid down by the Honourable Apex Court which follows
from a catena of judgments over the years.
However,
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Court
present
is
in
provisions
of
application
case, impugned order of
my
view not in
law
and
is
the
accordance
passed
with
without
the
proper
of mind and its conclusions are perverse
and unless extraordinary jurisdiction under
227 is
exercised,
it would result
in
Article
failure
of
and may burden the court with immaterial and
irrelevant
voluminous
unnecessarily
result
In
that suit
the case in hand, it is pertinent
is
would
in prolonging the life of
27.
which
ig
litigation.
documents
justice
Trial
the
in
already part
heard
cross-examination is already over.
and
to
the
note
substantial
In my opinion for
the reasons stated above, the Trial Court has gravely
erred
in
directing
the petitioner to
documents sought for by the respondent.
order,
therefore,
supervisory
warrants interference
produce
the
The impugned
under
the
jurisdiction of this Court under Article
227 of the Constitution.
28.
In
the result the petition is allowed and the
impugned order is set aside and rule is made absolute
with no order as to costs.
is clarified that by passing of this
Trial Court would not be precluded from
order
the
It
calling
29.
for production of any document hereafter in the trial
under
Order 11 Rule 14;
however,it would do so only
in accordance with law and after satisfying itself to
the
expediency,
relevancy
and
justness
of
the
that
production of the document and also satisfying itself
the document is necessary for the just and fair
.....
[A.A.SAYED, J.]
disposal of the suit.
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