Apollo Machinery Mart vs On the Death of Firoj Shah Mustt. Rausana Begum and Others

A.K. Patnaik, J.—This is a revision u/s 115, CPC, read with Article 227 of the Constitution of India. The facts of the case are that the opposite party filed TS No. 112/84 against the petitioner claiming that the petitioner was a tenant under the opposite party in respect of the suit house and defaulted in payment of rent and praying for eviction of the petitioner from the suit house and for recovery of arrear rent. By judgment dated 8-10-1993, the learned Assistant District Judge No. 1 Kamrup, Guwahati, decreed the suit for eviction and recovery of arrear rent. Against the said judgment, the petitioner filed TA No. 11/93 in the Court of the Additional District Judge Kamrup, Guwahati. In the said appeal, the petitioner filed a petition praying that the records of MS No. 20/88 and MS No. 19/91 pending in the Court of the Assistant District Judge No. 1, Kamrup, Guwahati be called for. The opposite party filed an objection to the said position. After hearing the parties, by order dated 5-1-1995, the learned Additional District Judge, Kamrup, Guwahati rejected the said petition on the ground that the formalities laid down under Order 13, Rule 10, C.P.C. had not been observed by the petitioner inasmuch as no affidavit had been filed in support of the said petition nor any reason shown as to why the aforesaid records were relevant to the suit. It is this order dated 5-1-1995 of the Additional District Judge, Kamrup which has been challenged in this Civil Revision.

At the hearing of the Civil Revision, Mr. A.S. Choudhury, learned counsel for the petitioner submitted that the aforesaid records of MS No. 20/88 and MS 19/92 pending in the Court of the Assistant District Judge No. 1 Kamrup Gauhati were relevant for the purpose of disposal of the appeal and hence the Additional District Judge ought to have passed orders calling for the said records and this is a fit case in which this Court ought to interfere with this Civil Revision. In reply, Mr. B.C. Sarma, learned counsel for the opposite party, submitted that the provisions of Order 13, Rule 10, CPC, required that any application for calling for records from any other Court has to be supported by affidavit showing how the records were material to the suit in which the application was made. Since the application of the petitioner for calling for records did not comply with the said requirement of Order 13, Rule 10, C.P.C. the Additional District Judge had rightly rejected the application of the petitioner and therefore, there is no scope for this Court to interfere with the said order in a Civil Revision.

The aforesaid argument by the learned counsel for the parties were advanced on 4-4-1995 and 5-4-1995 and the case was listed for further hearing on 10-1995, but on 10-4-1995, while the counsel for the opposite party appeared none appeared on behalf of the petitioner and in the circumstances this Court directed that the case would be listed on 10-4-1995 for delivery of judgment/order. On 10-4-1995, however, the order/judgment could not be delivered as the Court was closed.

Order 13, Rule 10, C.P.C. is quoted hereinbelow:

"Court may send for papers from its own records of from other Courts. -- (1) The Court may of its own motion, and may in its discretion upon the application of any of the parties to a suit, send for, either from its own records or from any other Court, the record of any other suit or proceeding, and inspect the same.

(2) Every application made under this rule shall (unless the court otherwise directs) be supported by an affidavit showing how/the record is material to the suit in which the application is made, and that the applicant cannot without unreasonable delay or expense obtain a duly authenticated copy of the record or of such portion thereof as the applicant requires or that the production of the original is necessary for the purpose of the justice.

(3) Nothing contained in this rule shall be deemed to enable the court to use in evidence any document which under the law of evidence would be inadmissible in the suit."

Sub-rule (2) of Rule 10 of Order 13 quoted above indicates that every application for calling for the records of any other suit or proceeding from any other Court has to be supported by an affidavit showing: (1) how the records were material to the suit in which the application was made, (ii) that the applicant cannot without unreasonable delay or expense obtain a duly authenticated copy of the records for such portion thereof as the applicant requires or that the production of original records were necessary for the purpose of justice.

On a perusal of the petition dated 29-11-1994 filed by the petitioner in TA No. 11/93 before the. Additional District Judge Kamrup available in the LCR I find that the said petition has not been supported by affidavit and it has not been shown in the said petition as to how the records of MS No. 20/88 and MS 19/92 pending in the court of the learned Assistant District Judge No. 1 Kamrup Guwahati were relevant for the purpose of disposal of TA No. 11/93, The impugned order dated 5-1-1995 of the Additional District Judge rejecting the prayer for calling for the records on the ground that the provisions of Order 13, Rule 10 , C.P.C. have not been complied with by the petitioner, therefore, cannot be held to be vitiated by any illegality or material irregularity. It is also not the case where it can be held that the Additional District Judge has exercised a jurisdiction not vested in him or has failed to exercise a jurisdiction vested in him. Therefore, there is no scope for this Court to interfere with the impugned order dated 5-1-1995 of the Additional District Judge Kamrup in TA No. 11/93 in a revision u/s 115, C.P.C. and accordingly this Civil Revision is dismissed. The parties shall bear their own costs.