Shri A.S. Chadha, learned counsel for the plaintiff-petitioners argued that the Civil Judge has committed material irregularity by declining the request of the plaintiff-petitioners for production of the documents merely on the ground that the production of documents would not be necessary at the initial stage and the proper stage for production of these documents would be the stage when the plaintiffs are to adduce their evidence. Learned counsel has further argued that even for the purpose of interim relief, it cannot be said that the documents and the original file would not be necessary as has been held by the Civil Judge. For this proposition, the learned counsel has placed reliance on a judgment of the Supreme Court in the case of Karamshi Jethabhai Somayya v. State of Bombay, A.I.R. 1964 Supreme Court 1714 and argued that it is incumbent upon the State and its agencies to show transparency in their working because any secrecy of documents would breed suspicion and would lead to unnecessary confusion. He has further placed reliance on a judgment of Rajasthan High Court in the case of Ravindra Bai Niketan Smaiti, Sikar and Ors. v. Smt. Sushila Shrivastava and Anr., A.I.R. 1988 Rajasthan 177 and argued that even for deciding the application for interim relief it would be advisable to look into the original files. He has also placed reliance on the explanation added to section 141 of the Code by Amendment in 1976. According to the learned Counsel, Section 141 provides that the same procedure is to be followed in all proceedings in any court of civil jurisdiction and the expression "proceedings" have been defined to mean the proceedings under Order 9 also. Therefore, it has been argued that the Civil Judge has committed material irregularity and grave illegality by observing that no documents are required to be looked into for deciding the injunction application of the plaintiff-petitioners.
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Punjab-Haryana High Court
Shri K.S. Raina And Anr. vs Haryana Financial Corporation ... on 26 April, 2002
Bench: M Kumar
1. This is a revision petition filed by the plaintiff-petitioners assailing the order dated 17.11.1999 passed by Civil Judge (Junior Division), Gurgaon dismissing their application filed under Order 11 Rule 14 of the Code of Civil Procedure (for brevity to be referred as Code) seeking production of document.
2. Brief facts of the case necessary for deciding the issue raised in the revision petition are that the plaintiff-petitioners have filed civil suit No. 528 of 1996 for declaration to the effect that defendant-respondent No. 1 had illegally wrongfully and arbitrarily auctioned the immovable property of the plaintiff-petitioners situated at 84, HIDC Complex, Gurgaon without first recalling the loan and/or giving an opportunity of hearing to them to discharge the loan. A further prayer was made that besides the immovable property, defendant-respondent No. 1 has also deprived the plaintiff-petitioners the movable property which was in the shape of finished/semi-finished goods raw materials, stock-in-trade and plant and machinery. The value of the movable property claimed in the suit is approximately Rs. 27 lacs. So it is further claimed that the said machinery and goods had nothing to do with the loan taken by the plaintiff-petitioners from defendant-respondent No. 1 i.e. Haryana Financial Corporation. As a consequential relief permanent injunction has also been praged by the plaintiff-petitioners. The plaintiff-petitioners have also asserted that the immovable property referred above were hypothecated with the Syndicate Bank, Gorgaon as the plaintiff-petitioners had business dealings with them. The movable property has become free in January, 1997 from any incumberance as the outstandings of the Syndicate Bank were liquidated in a settlement entered between the parties in January, 1997 out of the court. It is claimed that all that has been done without following the procedure laid down under Sections 29, 30 and 31 of the State Financial Corporation Act, 1951. The plaintiff-petitioners have further averred that they were never informed by defendant-respondent No. 1 about the minimum price kept for selling the immovable-movable property. The auction was conducted by defendant-respondent No. 1 in the year 1991-92 and it is claimed that the plaintiff-petitioners came to know about the aforementioned auction at the time of filing the suit on 16.10.1996 when defendant-respondent No. 1 started threatening to recover from the plaintiff-petitioners an amount of Rs. 8,21,969/- as arrears of land revenue under the Haryana Public Moneys (Recovery of Dues) Act, 1979. Various other pleas have also been raised by the plaintiff-petitioners in the suit. Along with the suit the plaintiff-petitioners also filed an application for grant of interim injunction that recovery of money under 1979 Act by defendant-respondent No. 1 was liable to be stayed. The Civil Judge allowed the relief by passing the order that no coercive process be adopted for the recovery of the arrears. It was in these circumstances that the plaintiff-petitioners on 25.7.1997 filed an application under Order 11 Rule 14 of the Code seeking a direction to defendant-respondent No. 1 for production of the documents which were in their power, possession and custody as the production of those documents was necessary for effective determination of the issues raised between the parties at the stage of disposal of the application for interim relief.
3. The aforementioned application was contested by defendant-respondent No. 1 by filing reply. On 17.11.1999 the Civil Judge (Junior Division), Gurgaon dismissed the application by recording the following order:
"Vide this order I will dispose of an application filed by applicant/plaintiff under Section 11 rule 14 CPC for production of documents, as the plaintiff has taken exparte injunction in his favour and plaintiff has filed the present suit for declaration & permanent injunction and it has been submitted that the defendants have purposely withheld certain facts in the written statement and submitted that Syndicate Bank has attached all property i.e. machinery, building stocks and all accounts were taken by defendants. Now plaintiff has requested that the defendants be directed to produce the following documents i.e. mortgage deed, loan agreement, revised loan agreement, sanctioned letter etc., as mentioned para No. 6 of application.
3. In reply to this application, the defendant No. 1 has taken preliminary objections that said application is totally mala fide, baseless and false and said application has been filed plaintiff to just gain time and submitted that the said application is vague and does not describe which document is in possession of which defendant. It has been denied that all files records books were taken over by the defendants and prayed for dismissal of present application.
As the present case is at initial stage and these documents are necessary at the time of evidence of plaintiff and those documents can be summoned at later stage and plaintiff has taken ad-interim injunction and plaintiff himself has to prove his prima facie case. At this stage, the plaintiff cannot be allowed to prolong litigation of this present application. Moreover, these documents are not in the custody of defendants, therefore, the present application is dismissed."
4. 1 have heard Shri A.S. Chadha, learned counsel for the plaintiff-petitioners and Shri Kamal Sehgal, learned counsel for defendant-respondents and have with their assistance perused the record.
5. Shri A.S. Chadha, learned counsel for the plaintiff-petitioners argued that the Civil Judge has committed material irregularity by declining the request of the plaintiff-petitioners for production of the documents merely on the ground that the production of documents would not be necessary at the initial stage and the proper stage for production of these documents would be the stage when the plaintiffs are to adduce their evidence. Learned counsel has further argued that even for the purpose of interim relief, it cannot be said that the documents and the original file would not be necessary as has been held by the Civil Judge. For this proposition, the learned counsel has placed reliance on a judgment of the Supreme Court in the case of Karamshi Jethabhai Somayya v. State of Bombay, A.I.R. 1964 Supreme Court 1714 and argued that it is incumbent upon the State and its agencies to show transparency in their working because any secrecy of documents would breed suspicion and would lead to unnecessary confusion. He has further placed reliance on a judgment of Rajasthan High Court in the case of Ravindra Bai Niketan Smaiti, Sikar and Ors. v. Smt. Sushila Shrivastava and Anr., A.I.R. 1988 Rajasthan 177 and argued that even for deciding the application for interim relief it would be advisable to look into the original files. He has also placed reliance on the explanation added to section 141 of the Code by Amendment in 1976. According to the learned Counsel, Section 141 provides that the same procedure is to be followed in all proceedings in any court of civil jurisdiction and the expression "proceedings" have been defined to mean the proceedings under Order 9 also. Therefore, it has been argued that the Civil Judge has committed material irregularity and grave illegality by observing that no documents are required to be looked into for deciding the injunction application of the plaintiff-petitieonrs,
6. Shri Kama! Sehgal, Advocate on the other hand submitted that it is the duty of the plaintiff-petitioner to stand on his two legs and prove his case. He has drawn my attention to paragraph 6 of the application filed by the plaintiff-petitioners wherein a list of documents required to be produced by defendant-respondents have been referred and some of the documents could not be in their custody as they are apparently in the custody of the Syndicate Bank. He has further argued that the intentions of the plaintiff-petitioners are not bona fide as they are resorting to dilatory tactics to continue with the interim order.
7. Having heard the learned counsel for the parties at a considerable length, I am of the considered opinion that this revision petition deserves to be allowed because transparency by the agencies of the State should be demonstrated in advancing the administration of justice rather than concealing and thriving on concealments. There are very limited area where concealment could be justified which would include the situation contemplated by Section 123 of the Indian Evidence Act 1872 because disclosure of certain documents may injure public interest and national interest. In the State of Uttar Pradesh v. Raj Narain and Ors. A.I.R. 1975 Supreme Court 865 a Constitution Bench of the Supreme Court considered the question as to whether blue book containing rules and instructions for protection of Prime Minister when on tour and in trouble could be excluded from production before the court and it held that the same cannot be. The observations of their Lordships indicate that in a democratic set up there can be few secrets and the same read as under:
"In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of the country have a right to know every public act, everything that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate have no repercussion on public security, see New York Times Co. v. United States, (1971) 29 Law Ed. 822 = 403 U.S. 713. To cover with veil of secrecy, the common routine business, is not in the interest of the public. Such secrecy can seldom be legitimately desired. It is generally desired for the purpose of parties and politics or personal self interest or bureaucratic routine. The responsibility of officials to explain and to justify their acts is the chief safeguard against oppression and corruption."
8. Reliance of the learned counsel on Karamshi Jethabhai Somayya's case (supra) and the judgment in the case of Ravindra Bal Niketan Samtti (supra) is also well founded. In the earlier judgment the Supreme Court in para No. 6 has observed as under:
"(6) when the suit was pending decision of the Civil Court, the appellant filed an application therein for directing the Government to produce, among others, the applications made to the Government from time to time by Karale in respect of supply of water to his farm in the year 1935 and subsequent thereto and the office copies of the replies sent to the said applications, the Government documents and papers, water-bills and the records in respect of the supply of water to the land belonging to Karale from the year 1935, and the correspondence that passed between Karale and the Government between 1935 and 1939 in respect of consolidation of his lands, obviously these papers were required by the appellant for establishing the case that there was a concluded agreement between Karale and the Government of Canal-Officer. But unfortunately, the said documents were no produced. It is not clear from the record whether and under what circumstances the Government withheld the documents from the court, but in appeal the High Court in its judgment remarked "In the trial Court no attempt was made to have this endorsement produced in Court which could have been done if the plaintiffs counsel had so desired by a proper application to the Court". But the High Court felt that it was absolutely necessary in the interests of justice to call upon the learned Government Pleader to produce the file with reference to that particular endorsement, namely, Endorsement No. 8033/86-1 dated 28th April, 1932, and directed him to do so. It disposed of the appeal after receiving the said relevant document. Though the court threw the blame for this lapse on the appellant, we do not think there was any justification for it. Apart from the fact that the appellant asked for the production of all the relevant documents, the Government, being the defendant in this case, should have produced the documents relevant to the question raised. While it is the duty of a private party to a litigation to place all the relevant matters before the Court, a higher responsibility rests upon the Government not to withheld such documents from the court. Be that as it may, the documents were finally produced before the court and the High Court considered the same in the arriving at its conclusion. Though Mr. Nambiar suggested that the said documents related to some other party, as we will indicate in the course of the judgment, the said file dealt also with the agreement alleged to have been entered into between Karale and the Government."
9. The principles laid down by the Supreme Court when applied to the facts' of the present case, no doubt is left that the documents which are within the power, possession and custody of defendant-respondent No. I must be produced before the Court and opportunity to inspect those documents should be given to the plaintiff-petitioners so as to enable them to make their submissions for proper adjudication of the application filed under Order 39 Rules 1 and 2 of the Code. It is rightly said that sun light is the best antiseptic and the cover plunges the doer in darkness.
10. For the reasons recorded above, this revision petition succeeds and defendant-re spondents No. 1 and 2 are directed to produce all the documents which are within their power, custody and possession. The application filed by the plaintiff-petitioners under Order 11 Rule 14 of the Code stands allowed.
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