Ashreddy vs Venkatreddy and three others

Syed Qamar Hasan, J.—In O. S. 12/1 of 1954-55 on the of the Subordinate Judge, Gulberga, appellant herein was the plaintiff and had prayed for a decree for possession of plaint-scheduled land and for certain de(sic)tions against four defendants. The 3rd and defendants filed a written statement admi(sic) the claim. On 19-7-1954, the second defendant in appearance and asked for an opportunity file his written statement.

The case dragged on till 31-8-1954 on which (sic)te the 2nd defendant filed an application stat(sic) that the plaintiff had filed certain documents (sic)ag with the plaint but he had not filed the list the documents as required by O. 7, R. 14, C. P. (sic)de in the result of which he (defendant No. 2) (sic)s unable to file his written statement; therefore, (sic) plaintiff be directed under 0. 11, R. 12, C. P. C. make discovery of the documents which he in(sic)ded to rely upon in the suit. No order was (sic)ssed on this application and the applicant was (sic)ected to file his written statement:

The attention of the Court was invited to the (sic)lication for discovery of documents on 21-10-(sic)4 and the Court directed the advocate for the plaintiff "to clarify the same". On 13-11-1954 the plaintiff was again directed "to clarify as required (sic) as ordered in the previous order sheet". A (sic)her opportunity was given to the plaintiff on. (sic)1-1954, to clarify as ordered before. At long (sic) the plaintiff filed his counter on 5-1-1955 stat(sic) that the documents which he intended to rely(sic) already been filed with the plaint and that other documents were in his possession for pro(sic)ion for purposes of the suit.

The Court without applying its mind as to desirability or otherwise of the discovery of documents in view of the counter filed by the plaintiff ordered and gave time for filing an affl(sic)t in support of the counter. On 15th January the Subordinate Judge passed the following (sic)r:

...The plaintiff neither made discovery (sic)e documents nor paid the day costs. He is complying with the orders of the Court. The (sic)dant will have to file an application for dis(sic)ng the suit for non-compliance of the order required by O. XI, R. 21. Call on 18th January (sic).

(sic) suggested application having been filed on (sic) January 1955, the Subordinate Judge pur(sic)ng to act under O. 11, R. 21, dismissed the (sic) with costs. It is against this order the plaintiff has preferred the present miscellaneous (sic)l under rule 1 (f) of O. 43, C. P. Code.

At the threshold of the argument, the (sic)d advocate for the 1st and 2nd respondents (sic) the preliminary objection that the appeal the said rule was not maintainable inas(sic) as the order appealed against must be (sic)d to have been passed under the provisions (sic)2 of O. 17, C. P. Code. The objection raised (sic)hout substance. The provisions of O. 17. would have been attracted if there were a (sic). The Court below expressly purported to under O. 11, R. 21 and therefore an appeal (sic) O. 43 R. 1 (f) was competent.

(sic) Coming to the merits of the appeal, we observe that the Subordinate Judge has dis(sic) deplorable lack of legal acumen in the dis(sic) of the matter under appeal. From the facts (sic) above, it is obvious that the Court never (sic) an order under O. 11, R. 12. What it did (sic)10-1954 and subsequent dates was to call (sic)he advocate for the appellant to clarify, (sic)arification came in the form of the coun(sic).

(sic)tead of applying his mind to the provi(sic)f R. 12 of O. 11 whether in view of the (sic) filed there was any case for discovery (sic)ments, he ordered the appellant to file (sic)davit not for discovery but to support his (sic). The appellant under the law was not bound to file such an affidavit. The law only required that when an application for discovery is made the discovery should be made on oath. Mere seeking of clarification was not the same thing as an order of discovery of documents.

Apart from that, a perusal of O. 11, R. 12 would show that mere filing of an application thereunder does not automatically east an obligation on any party to make the discovery. It is for the Court to see whether it would 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. The very use of the word ''discretion'' in the rule implies a duty on the part of the Court to apply its mind and to pass an order on sound judicial principles and not arbitrarily and capriciously.

Even if the order of the Subordinate Judge for clarification be regarded as one under R. 12 of O. 11, that order would seem to suffer from the defect that he has given no reasons for exercising his discretion in favour of the applicant after discussing the reasons given by him for calling upon the appellant to discover documents. It was highly objectionable on the part of the Subordinate Judge to have suggested to the applicant to file an application under O. 11, R. 21 to have the suit dismissed. Such an application is a matter of choice with the applicant and the lower Court ought not to have taken the role of an adviser.

We, therefore, allow the appeal and remit the case to the trial Court to be dealt with according to law. The suit was instituted in May, 1954 and we are now in the second month of 1958. No unnecessary adjournments will be granted to any party and the case must be disposed of as expeditiously as possible.

As the present situation has arisen by reason of the slovenliness of the then Subordinate Judge, we make no order as to costs of this appeal. The Officer is to see that the papers are sent back with as much dispatch as possible.