Gopal Bux Rai vs Syed Mahamood

Rowland, J.—This application presented by defendant 1 in a title suit arises out of a petition in a pending case which by an interlocutory order the Court below has refused. The defendant petitioner who has not yet filed his written statement in the suit prayed the Court to direct the plaintiff to make discovery on oath of documents under four items without which, it was suggested, this defendant was unable to plead to the allegations in the plaint. It is not clear whether this I application was meant to be under Order 11, Rule 15 or under Order 11, Rule 12. In the application in this Court, however, it is referred to as an application under Order 11, Rule 15. In fact when the four items of documents are described, we shall see that the application may be said to fall partly under one and partly under the other of these rules. Item 1 relates to any documents in the possession or power of the plaintiff regarding the alleged agreement dated 26th August 1925 between Babu Gopal Bux Rai and Syed Jamal Hussain and Maulvi Muhammad Hameed. This is a document referred to specifically in para. 7 of the plaint.

The next is, documents regarding the payment or satisfaction of the dues of Syed Jamal Hussain and Moulvi Muhammad Hameed and cancellation of the above agreement. As to that, the plaint is not quite clear whether such an acknowledgment was in the form of a separate document; but so far as these two items are concerned, it can be said without unduly straining language that they come within Order 11, Rule 15. Under this rule every party to a suit is entitled at any time to give notice to any other party in whose pleadings or affidavits reference is made to any document to produce such document for the inspection of the party giving such notice. The opposite party if he does not comply with such a notice may by order of the Court be precluded from using such document in evidence in the suit. So far as these two items are concerned, the plaintiff has answered that he has no such documents in his possession or under his control except, as regards item 2, what appears in the lease in the plaintiff''s favour executed by the defendant. So far as these two documents were concerned, nothing substantial could be urged in this revision except that the plaintiff ought to have supported his denial by an affidavit. That argument itself seems to be based on some confusion, as if the discovery of these documents had been sought under Order 11, Rule 12. I do not think it necessary to say any more about this part of the case except that nothing is shown calling for our interference.

Then the defendant calls for discovery on oath of documents regarding payment of Rs. 25,000 or of Rs. 10,000 or of any sum of money to Babu Gopal Bux Rai on or about 8th September 1926. The words ''discovery on oath'' suggest that the petitioner was thinking of Order 11, Rule 12; but as I have already said, the application to this Court refers to Order 11, Rule 15. Item 4 is, any documents in the plaintiff''s possession regarding the spending of Rs. 50,000 alleged to have been spent in prosecuting the title suit by which the estate was recovered for the plaintiff and defendant 1.

Now the rights of parties are not the same under Rule 15 as under Rule 12 of Order 11. Under Rule 15, notice may be given at any time for production of documents for inspection; but that rule only refers to a document to which reference has boon made in the pleadings or affidavits of the party to whom notice is given. To bring his application within this rule, it is necessary for the petitioner to show that the plaint has referred to any such document. Now the payments of Rs. 28,000, of Rs. 10,000 and of Rs. 50,000 are indeed referred to in para. 12 of the plaint, but this paragraph contains no reference to any documents of the kind described. Therefore it is not a case for notice under Order 11, Rule 15 at all. Then the question arises--assuming the documents to be documents relating to a matter in question in the suit--was the defendant entitled as of right (for this is a civil revision and not an appeal) to an order in his favour under Order 11, Rule 12 before filing his written statement? I am for the present leaving aside the question whether those documents are documents relating to any matter in question in the suit. The ground on which the Court below proceeded was twofold; on the one hand it was said that this was a matter of evidence and the defendant was not entitled to production of the documents before filing his written statement; and also that if inspection of the documents had really, been necessary before filing the written statement, the defendant ought to have applied earlier. The plaint had been presented on 27th March 1942. The petition for discovery was put in on 14th August 1942 after previously taking certain adjournments for filing the written statement and it came up for disposal on 25th November 1942. The defendant has, pending the hearing of this application, obtained a stay of proceedings in the suit, so that he has not filed his written statement yet.

The principles on which the Courts in England act in dealing with applications for discovery have been summed up in Quilter v. Heatly (1883) 23 Ch. D. 42 . In the particular case, discovery had been refused by the Court below, but on appeal it was allowed. It was found by Jessel, M.R. that the case came within the rule corresponding to Rule 15 of Order 11 of our own CPC and that the application to inspect the documents could be made at any time and should not have, been refused because it was made before the filing of the written statement. Lindley, L.J. made the matter clear by saying:

There is a broad distinction between a general application for discovery of documents relating to the matters in question in the action and an application for production of documents referred to in the pleadings.

Bowen L.J. also emphasised the same distinction pointing out that as a general rule discovery is not given before the issues are defined by the delivery of a statement of defence.

A similar principle has been followed in India in such cases--Khetsidas v. Narotumdos (1908) 32 Bom. 152 a decision under the CPC of 1882. Here the defendants had called on the plaintiffs for inspection of "contracts referred to in para. 3 of the plaint." The defendants had not filed their written statement, but claimed inspection before filing it to which the plaintiffs objected. The defendants relied on the rule which entitles the party to call on the other side to produce for inspection any documents referred to in the pleadings and Davar J. treated the matter as turning on the question: "Are the documents of which inspection is sought referred to in the plaint?" This question came up before him and he answered in the negative although at the same time he pointed out that the action of the plaintiffs in resisting inspection of the contracts mentioned was open to grave adverse comment.

That decision was quite consistent with an earlier decision of the same High Court in Ram Dayal Saligram v. Nurhurry Balkrishna (1994) 18 Bom. 368 which established the right of the defendant to inspect documents which the plaintiff had referred to in the plaint and mentioned therein as documents to be relied on at the hearing. Such documents the defendant can inspect even before filing his written statement; but it is clear to us that the documents referred to in the present application are not documents of that kind.

The rule in W.R. 331 Quilter v. Heatly (1883) 23 Ch. D. 42 was similarly applied in a later Bombay case in L. and I. Rapaport Vs. Kallianji Hirachand, with the final observation: "The present application is obviously made for the purpose of delaying the plantiffs'' suit" which is pertinent to the case Before us. I would dismiss this application with costs: hearing fee three gold mohurs. Let the records be sent down to the lower Court at once.

Reuben J.

I agree.