- Bookmark
- Share
- CaseIQ
Ravindra Bal Niketan Samiti, Siker v. Smt. Sushila Shrivastava
Factual and Procedural Background
The plaintiff instituted a suit against the present petitioners, defendants, seeking a declaration that her service was wrongly terminated and that she remains an employee of the institution. The petitioner No. 1 filed an application under Order 39 Rule 1 and 2, as well as applications under Order 11 Rule 12 and Order 11 Rule 14. The court below granted the application directing the petitioner to produce certain documents.
Legal Issues Presented
- Whether applications under Order 11 Rule 12 and Rule 14 can be filed in a miscellaneous application related to a suit for temporary injunction.
- Whether the provisions of Order 11 Rule 12 apply only to original matters or also to proceedings arising in connection with a suit, especially after the 1976 amendment to Section 141 of the Civil Procedure Code.
- Whether an affidavit is mandatory to accompany an application under Order 11 Rule 14 for production of documents.
- The scope of the court's power to direct production of documents under Order 11 Rules 12 and 14, including whether the absence of an affidavit affects jurisdiction or the validity of the direction.
Arguments of the Parties
Petitioner Defendant's Arguments
- Applications under Order 11 Rule 12 and 14 cannot be submitted in miscellaneous applications filed in suits for temporary injunction.
- Order 11 Rule 12 applies only to original proceedings and not to proceedings arising from suits or connected matters, relying on the case of Rathindra Bose v. Jyoti Bikash Ghosh and others.
- The 1976 amendment to Section 141 CPC, which includes proceedings under Order 9, limits the applicability of the cited cases.
- An affidavit is mandatory for applications under Order 11 Rule 14, as supported by Appendix-C Form 6 and case law such as National Rice and Dal Mills Rajpur v. Suraj Singh.
Court's Observations on Arguments
- The court noted that Order 11 Rule 12 and 14 are independent provisions and Rule 14 applications may be entertained without prior Rule 12 application.
- The affidavit requirement under Rule 14 is directory, not mandatory; absence of an affidavit does not vitiate the direction if no objection was raised in the lower court.
- The court has jurisdiction to direct production of documents under these rules and the directions issued were proper.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Rathindra Bose v. Jyoti Bikash Ghosh | Applicability of Order 11 Rule 12 to original proceedings versus proceedings arising from suits. | The court discussed the precedent but found its importance diminished after the 1976 amendment to Section 141 CPC. |
| Salil Kumar v. S.N Ghose, AIR 1960 Cal. 203 | Nature of proceedings under Order 9 Rule 9 as original proceedings and applicability of procedural rules. | Referenced in the context of original proceedings and their distinction from proceedings arising out of suits. |
| Sarat Krishana Bose v. Bisweswar Mitra, AIR 1927 Cal. 534 | Distinction between original matters and proceedings arising in connection with suits. | Supported the view that certain proceedings are original and others arise in connection with suits. |
| M.L Sethi v. Shri R.P Kapur | Requirements and consequences of discovery orders under Order 11 Rules 12 and 14. | Clarified that failure to produce documents after an order attracts penalties; affidavit of documents must disclose all relevant documents. |
| National Rice and Dal Mills Rajpur v. Suraj Singh | Necessity of affidavit accompanying application under Order 11 Rule 14. | The court agreed that ordinarily an affidavit is necessary but noted that the absence of an affidavit, without objection, does not invalidate the order. |
Court's Reasoning and Analysis
The court analyzed the applicability of Order 11 Rules 12 and 14 in the context of a miscellaneous application filed in a suit for temporary injunction. It considered the argument that these provisions apply only to original proceedings and not to those arising from suits. The court found that the 1976 amendment to Section 141 CPC expanded the scope to include such proceedings, thereby justifying the application of Order 11 Rule 12 in the present case.
Regarding the production of documents under Rule 14, the court observed that Rule 12 and Rule 14 are independent, and an application under Rule 14 need not always be preceded by an application under Rule 12. The court acknowledged the requirement of an affidavit as per Appendix-C Form 6 but held that this requirement is directory rather than mandatory. Since no objection was raised below about the absence of an affidavit, the directions for document production were valid and within the court's jurisdiction.
The court emphasized that the party against whom the order is made must produce the documents on oath, which can be done through statements on oath regarding possession or absence of documents. Thus, the court upheld the order directing production of documents and rejected the petitioner's contention that the absence of an affidavit vitiated the order.
Holding and Implications
The revision petition is disposed of accordingly.
The court directed the parties to appear before the court below on a specified date, effectively upholding the lower court's order directing production of documents under Order 11 Rules 12 and 14. The decision confirms the applicability of these provisions to proceedings connected with suits post the 1976 amendment to Section 141 CPC and clarifies that while affidavits are ordinarily required, their absence without objection does not invalidate the court's directions. No new precedent was established beyond affirming the existing legal framework and procedural discretion of the court.
D.L Mehta, J.:— Heard learned counsel for the parties. Perused the order dated 5.9.85 passed by the court below.
2. Plaintiff instituted a suit against the present petitioners defendant for the declaration that her service have wrongly been terminated and she is still the employee of the institution.
3. Application under Order 39 Rule 1 and 2 was filed by the present petitioner No. 1. The petitioner also moved an application under Order 11 Rule 12 as well as under Order 11 Rule 14. The application was granted and the present petitioner has been directed to produce the documents in the court.
4. Mr. Chadha appearing on behalf of the present petitioner defendants submitted that application under Order 11 Rule 12 and 14 cannot be submitted in miscellaneous application filed in a suit for the grant of temporary injunction. Order 11 Rule 12 provides that any party may apply to the court for directing any other party to a suit to make discovery on oath of the documents which are or have been in his possession or power relating to any matter in question therein. After hearing the parties, the court if satisfied may pass an order and direct the opposite party to submit the affidavit under Rule 13. Mr. Chadha has cited before me the case of Rathindra Bose v. Jyoti Bikash Ghosh (1). Their lordships have held as under;—
“It was contended that the proceedings under Order 9 Rule 9 was in the nature of an original proceeding as was held in the case of Salil Kumar v. S.N Ghose, 63 Cal. W.N 883 : (AIR 1960 Cal. 203) and the procedure of the Code is applicable to it as provided in section 141, so that the order of the trial court would be one under Order 39 though in a proceeding and not in suit and thus applicable. It would however, appear that “proceedings in any court of Civil Jurisdiction has been held to be original matters like pro-bates guardianships and so far as observed in Thakur Parshad Fakirullah (1985) 22 Ind App 44 (PC) or divorce, insolvency. This provision includes original matters which originate in themselves and not these which spring up from a suit or from other proceeding or arise in connection there with. This was the view taken in the Bench decision of this court in Sarat Krishana Bose v. Bisweswar Mitra, AIR 1927 Cal. 534, the contention of Mr. Mitra is thus not tenable.”
Mr. Chadha's contention is that the provisions of Order 11 Rule 12 only applies in the matters which originate in themselves and not those which spring up from a suit or other proceedings or arise in connection there with. It will not be out of place here to mention that to avoid the controversy which may arise in such matters the explanation under sec. 141 has been added vide Amending Act, 1976. Explanation provides that in this section the expression “proceedings” includes the proceedings under Order 9. Thus, the citation which has been cited by Mr. Chadha loses its importance after the amendment of the C.P.C The explanation is only explanatory and starts with the word “includes,” Thus the word ‘includes’ enlarges the scope of Section 141 C.P.C and in proceedings of a miscellaneous nature which arise in a suit falls within the difficulties of section 141 CPC to avoid the difficulties of the litigants and multiplicity of proceedings. If an application is filed in the original suit and the temporary injunction application is disposed off without the assistance of the original file then there will be chaos. The assistance of the original file is always taken while deciding the application under Order 39 Rule 1 and 2. Application under Order 39 Rule 1 and 2 is a part and parcel of the suit and it cannot be excluded. After the adding of the explanantion there remains nothing to be argued and the court was justified in applying the provisions of Order 11 Rule 12. The application of the present non-petitioners plaintiff relating to Order 11 Rule 12 should be accepted and the present petitioner defendant is directed to file an affidavit under Order 1 Rule 13.
5. Mr. Chadha has also cited before me the case of M.L Sethi v. Shri R.P Kapur (2). Their Lordships have held as under:—
“When the court makes an order for discovery under the rule, the opposite party is bound to make an affidavit of documents and if he fails to do so, he will be subject to the penalties specified in Rule 21 of Order 11. An affidavit of documents shall set forth all the documents which are, or have been in his possession or power relating to the matter in question in the proceedings. And as to the documents which are not, but have been in his possession or power, he must state what has become of them and in whose possession they are, in order that the opposite party may be enabled to get production from the persons who have possession of them (see form No. 5 in Appendix-C of the Civil Procedure Code). After he has disclosed the documents by the affidavit, he may be required to produce for inspection such of the documents as he is in possession of and as are relevant.”
6. I have gone through the citation cited by Mr. Chadha. It does not lay down the guidelines to this extent that the court has no power to direct the production of the documents which are in the possession and power of the other party. It only provides that if an order under Rule 12 has been made the other party may make an application under Rule 14 and the court may direct for the production of the documents. Rule 12 and 14 of Order 11 are independent of each other and it is not necessary in every case that first of all the application under Rule 12 should be made and after the decision of the application so made under Rule 12 and after filing of the affidavit under Rule 13 by the opposite party the application under rule 14 should be moved. Some times the court may entertain an application under rule 14 directly without an application under rule 12. Rule 14 provides that it shall be lawful for the court at any time during the pendency of any suit, to order the production by any party there to upon oath of such document in his possession or power, relating to any matter in question in such suit as the court shall think right. Mr. Chadha submits that the application under Rule 14 should be accompanied with an affidavit for the satisfaction of the court. Under Rule 14, though it has not been specifically mentioned that the application should be accompanied with an affidavit but Appendix-C relating to discovery, inspection and admission, there is a form-VI form 6 reads as under:—
7. Upon hearing……and upon reading the affidavit of……filed the…… day of……19 it is ordered that the………do, at all reasonable times, on reasonable notice, produced at …situate at……the following documents, namely …and that the……be at liberty to inspect and persue the documents so produced, and to make notes of their contents. In the meantime, it is ordered that all further proceedings be stayed and that the costs of this application be”.
8. Thus, Mr. Chadha submits that the affidavit is a must as it has been referred to in Appendix-C Form-6. Mr. Chadha has cited before me the case of Notional Rice and Dal Mills Rajpur v. Suraj Singh (3), in which it has been held as under:—
“It is also evident from form No. 6 in Appendix ‘C’ to the Code that an affidavit is contemplated when an application is made under Order 11, Rule 14. In the present case, it does not appear that any attempt was made to file an affidavit. In the circumstances, the learned Senior Subordinate Judge, was entitled to reject the application, and his order doing so does not call for interference. It is, however, open to the defendant to file a fresh application under Order 11 R. 14 supported by an affidavit. The trial court will then consider the application.”
9. I agree with the view taken by the Himachal Pradesh High Court that ordinarily the application should be accompanied with an affidavit. In the case of National Rice & Dal Mills, Rajpur (supra) the application under Order 11 Rule 14 was dismissed by the court of the Subordinate Judge on the ground that no affidavit has been filed with the application. The learned Subordinate Judge had the jurisdiction to reject the application on the ground that no affidavit has been filed inspite of repeated opportunities. In the instant case, such opportunity was not given to the present non-petitioner. On the contrary, no such objection was also raised in the court below. Appendix-C is a directory in nature and not mandatory. The direction should be fulfilled as far as practicable and particularly when objection is raised by the opposite party. In the absence of an objection in the lower court the court considered it proper to issue direction for the production of the documents referred in the application. Directions so issued are not vitiated only on account of non-filing of the affidavit which was not objected to even by the present petitioner in the court below. In such circumstances, no question of jurisdiction is involved in it. The court had the jurisdiction to issue necessary orders and the court has rightly issued the directions for the production of the documents.
10. I do not find any force in the submission made by Mr. Chadha. It was observed by Mr. Chadha that it is necessary to file affidevit to show that the documents are in his possession or power. Afidavit is an evidence on oath for some purpose. Order 11 Rule 14 further provides that the party against whom the order has been made shall produce the documents on oath. In such circumstances, he can make a statement on oath that these documents are available with him or these documents are not available with him and they are not in his possession or power.
11. In the facts and circumstances of the case, the revision petition is disposed of accordingly. The parties are directed to appear before the court below on 17th August, 1987.
Alert