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Nutan Corporation Thro. President & 1 Petitioner(S) v. Sunil Thakorbhai Mehta & 6 (S)
Factual and Procedural Background
This is an oral judgment in a special civil application under Article 227 of the Constitution of India. The petitioners-original plaintiffs seek to quash and set aside the trial court's order dated 22 September 2008 (below Exh.123) by the 3rd Additional Senior Civil Judge, Surat, which rejected the plaintiffs' application (Exh.123) requesting that the defendants disclose documents they may rely upon in their defence.
The petition arises out of Civil Suit No. 326 of 1989 instituted by the petitioners-original plaintiffs in the Court of the 3rd Additional Senior Civil Judge, Surat, seeking specific performance of registered agreements to sell relating to the suit land. Respondent Nos.1, 2, 4 and 7 (original defendants) filed a written statement at Exh.28. Issues were framed on 1 March 2008 (Exh.113). The plaintiffs contend that registered agreements to sell were executed by the defendants, that partial sale consideration was paid by cheques which were encashed, and that possession was delivered in part performance (via "Kabja Rasid") and construction (the "Swagat Complex") was carried out. The defendants denied execution of the agreements, denial of receipt of cheques, and denied that possession or construction occurred as claimed by the plaintiffs; they also alleged signatures were taken without explanation.
On 31 July 2008 the plaintiffs filed application Exh.123 seeking, inter alia, a direction for the defendants to disclose documents (referencing Form No. 5 of Appendix "C" and provisions of the Code of Civil Procedure) and relied specifically on Order XI Rule 12 and Order VIII Rule 1(A) of the CPC. The trial court rejected Exh.123 by observing that plaintiffs could not, at their instance, compel defendants to produce documents for the purpose of proving the plaintiffs' case where the defendants had not themselves produced such documents in support of their defence. Aggrieved, the plaintiffs filed the present special civil application under Article 227. No one appeared on behalf of the respondents at the hearing of the Article 227 petition.
Legal Issues Presented
- Whether the trial court erred in rejecting the plaintiffs' application (Exh.123) that sought a direction to the defendants to produce documents which the defendants may rely upon in their defence.
- Whether Order XI Rule 12 of the Civil Procedure Code (discovery of documents) is applicable to a prayer seeking production by defendants of documents they may rely upon at the time of trial.
- Whether Order VIII Rule 1(A) of the Civil Procedure Code (duty of defendant to produce documents upon which relief is claimed or relied upon by him) permits a plaintiff to seek a pre-trial direction compelling the defendant to produce documents that the defendant may rely upon in evidence.
Arguments of the Parties
Petitioners' (Original Plaintiffs') Arguments
- The learned trial court materially erred in not properly appreciating and applying Order XI Rule 12 read with Order VIII Rule 1(A) of the CPC.
- If defendants are called upon to produce documents they may rely upon in their defence, no prejudice will be caused to defendants; production will facilitate smooth conduct of the trial and allow plaintiffs to meet those documents while leading their evidence.
- The defendants keep books of accounts, are income-tax payers, and therefore possess income-tax returns and bank account details; these documents are within defendants' possession and should be disclosed.
- The application Exh.123 was innocuous and, on principles of fairness, should have been granted by the trial court by directing production of documents the defendants might rely upon.
Respondents' (Original Defendants') Arguments
- No one appeared on behalf of the respondents at the hearing of the Article 227 petition; the opinion records that respondents were served but did not appear. The record does not contain any detailed arguments advanced by the respondents in this Article 227 proceeding.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The court considered the application Exh.123 and the impugned order rejecting it. The analysis proceeded in the following steps, following the language and reasoning in the opinion:
- The court first noted the essential nature of the plaintiffs' request: plaintiffs sought an order compelling the defendants to produce documents which the defendants "may be relied upon by them in their defence." The court observed that Exh.123 did not specify particular documents.
- On Order XI Rule 12 (discovery of documents), the court stated the rule provides that any party may apply to the court for an order directing another party to make discovery on oath of documents in his possession or power relating to the matter in question. The court concluded it could not appreciate how Order XI Rule 12 would be applicable to a prayer that the defendants produce documents that they may rely upon in their defence; accordingly, Order XI Rule 12 was held not applicable to Exh.123.
- The court then examined Order VIII Rule 1(A), which casts a duty on a defendant to enter in a list and produce documents when the written statement is presented if the defendant bases his defence upon a document or relies upon any document in his possession or power in support of his defence. The court found that Order VIII Rule 1(A) likewise did not support the plaintiffs' prayer because:
- It was not the plaintiffs' case that particular documents relied upon by the defendants in their defence were in defendants' possession and were not produced.
- Order VIII Rule 1(A) does not empower plaintiffs to pray for a direction compelling defendants to produce documents they might rely upon in evidence at a later stage; the rule prescribes the defendant's duties at the time the written statement is presented.
- If defendants had relied upon specific documents and were not producing them despite being in possession, plaintiffs could then seek appropriate relief and adverse consequences (such as adverse inference) could follow; but that is a different factual situation than what Exh.123 presented.
- Documents can, in appropriate circumstances, be produced subsequently with the leave of the court; the stage at which Exh.123 was made did not warrant compelling the production sought.
- Given that Exh.123 did not identify specific documents said to be relied upon by defendants and given the statutory scheme of Order XI Rule 12 and Order VIII Rule 1(A), the court concluded that neither provision authorized the relief sought in Exh.123.
- On this basis, the court held that the trial court did not commit an error in dismissing Exh.123.
Holding and Implications
HOLDING: The petition is dismissed. The court concluded that Order XI Rule 12 and Order VIII Rule 1(A) of the Code of Civil Procedure do not entitle the plaintiffs to a direction compelling defendants to produce documents which the defendants may rely upon in their defence where (as here) no specific documents have been identified as relied upon by the defendants and withheld. The impugned order below Exh.123 stands affirmed.
Direct Consequences: The special civil petition under Article 227 was dismissed; notice was discharged; the ad-interim relief granted earlier was vacated forthwith.
Broader Implications: The opinion does not discuss or announce any broader legal precedent beyond the application of the cited CPC provisions to the facts of this case. The direct effect is limited to the dismissal of this petition and the confirmation of the trial court's refusal to grant Exh.123; no new binding precedent is articulated in the judgment.
ORAL JUDGMENT
1. Though served, nobody appears on behalf of the respondents. Looking to the facts and circumstances of the case, this petition is taken up for final hearing today.
2. By way of this petition, under Article 227 of the Constitution of India, petitioners-original plaintiffs have prayed for an appropriate writ, direction and order to quash and set aside the impugned order dated 22nd September, 2008 passed by the 3rd Additional Senior Civil Judge, Surat below Exh.123 in Special Civil Suit No. 326 of 1989 by which the application submitted by the petitioners-plaintiffs purported to be under Order VIII Rule (1)(A) read with Order XI Rule 12 of the Civil Procedure Code requiring the respondents-defendants to disclose the documentary evidence upon which they would like to place reliance in support of their case, came to be rejected.
3. Petitioners herein-original plaintiffs have instituted Civil Suit against respondents-defendants being Civil Suit No. 326 of 1989 in the Court of 3 Additional Senior Civil Judge, Surat, inter-alia seeking a specific performance of the registered agreements to sell executed by the respondents-defendants in their favour in respect of the parcel of suit land. That in the said suit, respondent Nos. 1, 2, 4 and 7-original defendants No. 1, 2, 4 and 7 have submitted written statement at Exh.28 The issues came to be framed on 1st March, 2008 vide Exh.113 It is the case on behalf of the petitioners-plaintiffs that the said suit of the petitioners-plaintiffs was to become ripe for recording of the evidence.
4. It is the case on behalf of the petitioners-plaintiffs that though the agreements for sell with respect to the suit land were duly registered in the office of the Sub-Registrar, Surat and executed by the respondents in respect of their respective portion of the land and the amount of part of the sale consideration was paid to each of the executant by cheques which were encahsed by the respective executants thereof, the respondents vide written statement at Exh.28 denied to have executed the said registered agreements to sell. They also denied the fact that the said cheques were not received by them towards the sale consideration but for the facts stated in the written statement. As per the petitioners, though the possession of the suit land was given in part performance of registered agreements to sell by executing “Kabja Rasid” on stamp paper and apartment known as “Swagat Complex” was constructed thereon as per approved plan by Surat Municipal Corporation and the possession thereof was also given to the respective premises holders, still however, the respondents denied to have parted the possession in part performance of agreements to sell. That as per the petitioners, the respondents also denied the fact that the construction that was carried out was not done by the petitioners. On the contrary, the respondents made out a case that the signatures of the respondents on the writings were obtained without giving explanation to them. Under the circumstances and looking to the contentions raised by the respondents in the written statement, the petitioners submitted an application dated 31 July, 2008 at Exh.123 inter-alia seeking a direction upon the respondents, as defendants of the said suit, for submitting an affidavit as to documents contemplated by Form No. 5 of Appendix “C” of the code of Civil Procedure, 1908, under Order XI, Rule 13 thereof.
5. That it was contended by the petitioners in the said application at Exh.123 that the respondents are keeping books of accounts and they are income-tax payers and therefore are having their Income-tax Returns along with the details about their concerned bank accounts and, therefore, the respondents should disclose, as contemplated by the provisions embodied in Order XI, Rule 12 of the Code of Civil Procedure, 1908, the documents concerning the said suit of the petitioners, which are in possession of the respondents and upon which the respondents would like to place reliance in support of their case pleaded in their written statement, so that it may become possible on the part of the petitioners to deal with the same while leading their evidence.
6. That the said application came to be rejected by the learned trial Court by impugned order by observing and holding that if the defendants are not producing the documents in support of their defence, the said documents cannot be directed to be produced at the instance of the plaintiffs to prove their case i.e plaintiff's case. Being aggrieved and dissatisfied with the impugned order dated 22 September, 2008, passed by the Court of 3 Addl. Senior Civil Judge, Surat, below Exh.123 in Special Civil suit No. 326 of 1989, petitioners-plaintiffs have preferred this special civil application under Article 227 of the Constitution of India.
7. Shri D.C Dave, learned advocate appearing on behalf of the petitioners-original plaintiffs have vehemently submitted that the learned trial Court has materially erred in not properly appreciating the provision of Order XI Rule 12 read with Order VIII, Rule 1(a) of the Civil Procedure Code (CPC). It is submitted that if the defendants are called upon to produce the documents that may be relied upon by them in their defence in support of their averments in the written statement, no prejudice will be caused to the defendants. It is submitted that on the contrary for smooth conducting of the trial and the plaintiffs can meet with those documents at the time of trial, production of such documents by the defendants is required. Therefore, it is submitted that learned trial court has committed an error in not allowing the application at Exh.123 by directing the defendants to produce the documents that might be relied upon by them in their defence, so that the plaintiffs can deal with the same while leading their evidence. It is submitted that as such, application submitted by the plaintiffs was absolutely innocuous as looking to the stand taken by the defendants in the written statement. Therefore, even on the principles of fairness, learned trial Court ought to have granted Exh. 123. Therefore, it is requested to allow the present special civil application by quashing and setting aside the impugned order passed by the learned trial Court below Exh.123 by directing the respondents-defendants to produce those documents which may be relied upon by them in their defence.
8. Having heard Shir D.C Dave learned advocate appearing on behalf of the petitioners-original plaintiffs and considering the application at Exh.123 and the impugned order passed by the learned trial Court rejecting the same, it appears that the plaintiffs want the defendants to produce the documents which may be relied upon by them in their defence. It is required to be noted at this stage that in the application Exh.123, no specific documents have been mentioned by the plaintiffs calling upon the defendants to produce the same. It is not the case of the plaintiffs that the documents which are sought to be produced are relied upon by the defendants in their defence which are in their possession and the defendants are not producing the same. The plaintiffs have heavily relied upon the Order XI Rule 12 and Order VIII Rule 1(A) of the CPC in support of their prayer to allow the application at Exh. 123 by directing the defendant to produce the documents that may be relied upon by them in their defence.
9. Order VIII Rule 1(A) and Order XI Rule 12 are as under.
Order VIII Rule 1(A):
“Duty of defendant to produce documents upon which relief is claimed or relied upon by him:- (1) Where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim in set-off or counter-claim, he shall enter such document in a list, and shall produce it in Court when the written statement is presented by him and shall, at the same time, deliver the document and a copy thereof, to be filed with the written statement.
(2) Where any such document is not in the possession or power of the defendant, he shall, wherever, possible, state in whose possession or power it is.
(3) A document which ought to be produced in Court by the defendant under this rule, is not so produced shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.
(4) Nothing in this rule shall apply to documents-
(a) produced for the cross-examination of the plaintiff's witnesses, or
(b) handed over to a witness merely to refresh his memory.”
Order XI Rule 12
“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 oath 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.”
10. On considering the Order XI Rule 12, the same shall not be applicable at all. Order XI Rule 12 of the CPC provides discovery of documents and it provides that 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 oath of the documents which are or have been in his possession or power, relating to any matter in question therein. This Court fails to appreciate how Order XI Rule 12 would be applicable for a prayer directing the defendants to produce the documents that may be relied upon by them in their defence. Therefore, Order XI Rule 12 of the CPC will not be applicable to the application at Exh.123
11. Now so far as the reliance placed upon Order VIII (1)(A) is concerned, it provides that where defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim for set-off or counter-claim, he shall enter such document in a list, and shall produce it in Court when the written statement is presented by him and shall, at the same time, deliver the documents and a copy thereof, to be filed with the written statement. Considering the nature of prayer sought in application at Exh.123 even Order VIII Rule (1)(A) of the CPC also would not be applicable. At this stage, it is not the case of the petitioners-plaintiffs that certain documents which have been relied upon by the defendants in their defence, they are not produced. Order VII Rule (1)(A) cast the duty on the defendant to produce the documents upon which the relief is claimed or relied upon by him. However, relying upon Order VIII Rule (1)(A) of the CPC, the plaintiffs cannot pray for a direction directing the defendants to produce the documents that may be relied upon by them in their evidence. As such in a case where the defendants have not produced a list of documents at the time of written statement and in that case, necessary consequences might follow. Even such documents/documents can be produced subsequently with the leave of the Court. In a case where the defendants though relied upon certain documents are not producing the same in-spite of the fact that they are in their possession and the plaintiffs are of the opinion that these documents are very much necessary for the purpose of trial in that case the plaintiffs may submit an appropriate application calling upon the defendants to produce such documents and if such documents though in possession of the defendants are not produced, then in that case, necessary consequences adverse inference etc. can be drawn. However, at this stage, the defendants cannot be called upon to produce the documents that may be relied upon by them in their defence. Order VIII Rule (1)(A) does not contemplate such an eventuality. It is also required to be noted that the plaintiffs want to produce the documents to prove their case which are at present not relied upon by the defendants, which is not permissible. Under the circumstances, it cannot be said that the learned trial Court have committed an error in dismissing the application at Exh.123
12. In view of the above and for the reasons stated, there is no substance in the present petition which deserves to be dismissed and is accordingly dismissed. Notice discharged. Ad-interim relief granted earlier stands vacated forthwith.
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