H.O.CHANDRASHEKAR v. M/S KADIDAL S RAMAPPA GOWDA & CO

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O.S.NO.33/2014 PRODUCED AT ANNEXURE-F AND

THEREBY DIRECT THE RESPONDENT TO CAUSE

PRODUCTION OF THE DOCUMENTS SOUGHT FOR IN THE

NTOICE DTD 5.10.2016 FILED BY THE PETITIONER UNDER

ORDER XI RULE 16 OF CPC PRODUCED AS ANNEXURE-D

TO THIS PETITION.

THIS WRIT PETITION COMING ON FOR HEARING

THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER

The captioned writ petition is filed by the petitioner-defendant, who is questioning the order dated 08.12.2016 passed by the learned II Additional Senior Civil Judge, Shivamogga in O.S.No.33/2014 as per Annexure-F refusing the prayer of the petitioner - defendant to cause production of the documents as sought by the petitioner - defendant.

2. Facts leading to the case are as under; The respondent - plaintiff has instituted a suit in O.S.No.33/2014 for recovery of sum of Rs.10,22,000/-. The respondent - plaintiff specifically

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claimed that the present petitioner - defendant approached one of the partner of the firm by name K.R.Gopal seeking financial assistance by way of advance for supplying of Areca nut grown by the petitioner. The respondent - plaintiff has further contended that he has agreed to advance and the present petitioner accordingly borrowed a sum of Rs.7,67,000/- on 06.09.2012 by way of cheque bearing No.9855 drawn on Karnataka Bank, APMC Yard Shivamogga on an interest at the rate of 23% per annum. The respondent - plaintiff claimed that the advance made by the respondent - plaintiff is duly recorded in the records maintained by the respondent - plaintiff in the course of its regular business.

3. The respondent - plaintiff grievance is that the petitioner - defendant having availed advance amount failed to supply Areca nut and also failed to

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repay the borrowed amount and therefore, the present suit.

4. The petitioner - defendant on receipt of summons tendered appearance and stoutly denied the entire averments made in the plaint by filing written statement. The present petitioner - defendant at para No.7 of the written statement specifically contended that he has settled accounts on 21.12.2000 and therefore, there are no transaction or any liability as pleaded by the respondent - plaintiff and as such, prayed for dismissal of the suit.

5. The respondent - plaintiff to substantiate its claim have lead in oral evidence and also produced documentary evidence. When the matter was posted for cross-examination of the plaintiff, the petitioner - defendant has come with the notice by invoking provisions under Order 11 Rule 16 of CPC., calling

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upon the respondent - plaintiff to furnish the accounts of the plaintiff - defendant maintained from 01.04.2000 till 31.03.2014. The said application was strongly opposed by the respondent - plaintiff by filing objection. The learned Judge having examined the rival contentions has proceeded to reject the application. It is against this rejection, the petitioner - defendant is before this Court.

6. Heard learned counsel appearing for the petitioner - defendant and leaned counsel appearing for the respondent - plaintiff. Perused the order under challenge.

7. I have also given my anxious consideration to the pleadings of the plaintiff as well as the defendant.

8. The suit is one for recovery of money. The plaintiff has specifically claimed that he has advanced

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a sum of Rs.7,67,000/- by way of cheque bearing No.9855 drawn on Karnataka Bank, APMC Yard Shivamogga on 06.09.2012. The petitioner - defendant claimed that he has settled all the accounts and he has no transactions. The respondent - plaintiff has commenced by leading oral evidence and also produced documentary evidence. When the matter was set down for cross-examination of P.W.1, the present notice came to be filed calling upon the respondent - plaintiff to furnish the documents by invoking provisions under Order 11 Rule 16 of CPC., To invoke the provisions of Order 11 Rule 16 of CPC., the parties insisting for production of documents have to be specifically pleaded in the pleadings.

9. In the present case on hand, on meticulously examination of the averments made in the written statement, this Court would find that the documents, which are sought to be produced before the Court

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under the provisions under Order 11 Rule 16 of CPC., is not referred in the written statement. The provisions under Order 11 Rule 16 has to be conjointly read with Order 11 Rule 15 of CPC., The order

11 Rule 15 of CPC., clearly contemplates that the parties are entitled to issue a notice calling upon the production of documents, which are referred in the plaint or in the written statement.

10. On meticulous examination of the averments of the plaint, this Court would find that the plaintiff has not referred to the documents, which the petitioner - defendant intends to inspect. The present suit is one for recovery of money and the burden is on the plaintiff to establish that the petitioner - defendant is liable to pay a sum of Rs.10,22,000/-. Before a party intends to invoke the provisions under Order 11 Rule 15 and 16 of CPC., he has to demonstrate that there is a reference to the documents in respect of

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which inspection is sought and has to demonstrate that the inspection of document which is sought, is also material to the suit. Therefore, on plain reading of the provisions under Order 11 Rule 15 and 16 of CPC., this Court would find that inspection can be called under Order 11 Rule 16, if the documents are referred to in the pleadings or if the documents are included in the list of documents annexed to the pleadings.

11. Having regard to the rival contentions and the controversy between the parties, this Court is of the view that the petitioner - defendant is not entitled to inspect the documents. The application does not satisfy the ingredients under Order 11 Rule 15 and 16 of CPC., The contention of the petitioner - defendant that the claim of the respondent - plaintiff is barred by limitation and therefore, the inspection of documents referred as claimed by the petitioner - defendant

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cannot be entertained and acceded to. As rightly pointed out by the learned counsel appearing for the respondent - plaintiff, the documents in respect of which the petitioner - defendant insists for inspection are not referred in the pleadings in the plaint.

12. Be that as it may, it is the respondent - plaintiff, who has approached the Court and is seeking recovery of money, therefore burden is on the plaintiff. The learned Judge while rejecting the application, has rightly referred the documents, which are already produced by the plaintiff and therefore, the petitioner - defendant has a liberty to counter the documents by producing the rebuttal evidence either in the form of oral and documentary evidence, if he intends. Therefore, on meticulous examination of the order under challenge, I do not find any infirmities or illegalities and therefore, the order under challenge

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cannot be disturbed under Article 227 of the Constitution of India.

Accordingly, the writ petition is dismissed. All contentions are kept open.

Any observations made by this Court while rejecting the application would not take away the defence set up by the petitioner - defendant.

Sd/-

JUDGE

NBM