Kishore Kumar and Another vs Mohd. Hussain and Others

Sanjay Yadav, J.—Heard on admission.

Defendant Nos. 1 (b) and 1 (c), in a suit for eviction, being unsuccessful in disco very of documents under Order 11 Rule 12. Code of Civil Procedure, 1908 (hereafter shall be referred to as C.P.C. for short) have preferred this petition under Article 227 of the Constitution of India seeking quashment of order dated 7.1.2011 passed by IV Additional district Judge (Fast Track Court), Khandwa in Civil Suit No. 94 A / 2009; whereby, the application seeking discovery of document has been rejected.

Suit at the instance of respondent No. 1/plaintiff is for eviction on the grounds u/s 12(1)(a) and (f) of the Madhya Pradesh Accommodation Control Act. 1961 (hereinafter shall be referred to as Act of 1961 for short). The matter when reached the stage of recording evidence of plaintiff, an application under Order 11 Rule 12 CPC read with Section 151 CPC was filed by petitioners seeking discovery of the documents; rent agreement in respect of other shops situated in the market known as Akbar Ali Market. The discovery was opposed by the plaintiff on the ground that the discovery of the document which has been sought have no relevancy in the matter as the suit for eviction is on the grounds enumerated u/s 12(1)(a) and (e) of the Act of 1961.

The Trial Court after considering the application filed by the petitioners rejected the same for the reasons that the petitioners are at liberty to lead evidence to substantiate the defence as is put in the written statement.

Challenging the order, it is contended that the trial court committed a jurisdictional error in declining to direct discovery of documents, inasmuch as though the same is vested in it; by not exercising the said jurisdiction. It is contended that it was not within the jurisdiction of the trial court to have rejected the application on the ground that the petitioners would be at liberty to lead evidence in support of the contentions regarding availability of alternative accommodation to the plaintiff. It is contended that the trial court fell into patent error by not appreciating the fact that the documents, the discovery whereof was sought, were very much relevant in the matter and were in possession of the plaintiff. It is urged that the discovery, if ordered, would have led to curtailment of the trial. It is also urged that the rejection of application under Order 11 Rule 12 CPC has resulted in miscarriage of justice as the order is contrary to law as laid down in the case of Shri M.L. Sethi Vs. Shri R.P. Kapur, Besides, the petitioners also place reliance on the judgments in AIR 1934 181 (Nagpur) , AIR 1952 135 (Nagpur) , Raj Narain Vs. Indira Nehru Gandhi and Another, , Chimandas v. Moorajmal AIR 1975 MPLJ 35, Ramnath v. Rakesh Kumar 1982 MPWN SN 129, Mishrimal v. State of M.P. 1989 MPWN SN 190, Satyapal v. Indore Development Authority 1995 (2) MPWN SN 67, Hindustan Mills v. Mannoolal 1964 JLJ Note 157, Bholaram v. Union of India 1982 MPLJ Note 41, Hari Devi (Smt.) Vs. Smt. Drishna Devi and others, 1, Narendra Gole Vs. Ram Krishna Sharma, and Narendra S/o Chhotelal Gole Vs. Ram Krishna Sharma 2011 (1) MPLJ 127.

These judgments relied on by the petitioners aims at and reiterates the scope of Order 11 Rule 12 CPC, i.e., to extract admission from opposite party, which may preclude a lengthy trial and lead to a quick disposal of the suit.

In M.L. Sethi v. R.P. Kapoor (supra) it was observed that "the documents sought to be discovered need not be admissible in evidence in the enquiry or proceedings. It is sufficient if the documents would be relevant for the purpose of throwing light on the matter in controversy. Every document which will throw any light on the case is a document relating to a matter in dispute in the proceedings, though it might not be admissible in evidence. In other words, a document might be inadmissible in evidence yet it may contain information which may either directly or indirectly enable the party seeking discovery either to advance his case or damage the adversary''s case or which may lead to a trial of enquiry which may have either of these two consequences. The word ''document'' in this context includes anything that is written or printed, no matter what the material may be upon which the writing or printing is inserted or imprinted." It is this proposition as has been exponented by the Supreme Court which flows from the judgments which are being placed reliance upon by learned counsel for the petitioner, in support of his contention that the trial court has committed an error in rejecting the application seeking discovery of document.

Order 11 Rule 12 CPC stipulates 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. 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."

Thus, any party to a suit may without filing an affidavit can apply to the Court for an order directing any other party to any suit to make discovery on oath of document which are or have been in possession or power relating to any matter in question therein.

In the case at hand the suit is for eviction on the grounds enumerated u/s 12(1)(a) &(f) of Act of 1961. Various clauses u/s 1 of Section 12 enumerates the grounds on the basis where of a tenant can be evicted from accommodation. Clause (a) provides for that the tenant can be evicted from accommodation if has not paid any arrears of rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the prescribed manner; and clause (f) of sub section (1) of Section 12 provides for that a tenant can be evicted if the accommodation let for non-residential purposes is required bona fide by the landlord for the purpose of starting his business or for continuing his business or for any of major son(s) or daughter(s), if he is the owner thereof or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably non-residential of his own in his occupation in the city or town concerned.

The petitioners herein while denying vide written statement the existence of grounds on the basis whereof eviction is being sought, subsequently filed an application under order 11 Rule 12 CPC seeking discovery of documents pertaining to the lease agreement executed by the plaintiff landlord with various tenants who have entered into premises or have vacated the premises as also the copy of notices issued by the plaintiff landlord to his respective tenants seeking their eviction as also the reply thereto and the receipt book wherein the rent is accepted by him. The precise discover which the petitioners sought were

Alleging that aforesaid discovery was relevant in the matter, it is contended that the rejection of application is bad.

Question is whether the discovery as has been sought for by the petitioner defendant is of documents having relevancy. In the context, true it may be that, the petitioners defendants have a right to dislodge the case of the petitioner regarding bona fide need; however, a discovery as is being sought for would be and necessary in the matter in question.

Admittedly, the plaintiff has lodged the civil suit for eviction on two grounds; one being arrears of rent and other for bona fide need. The onus is, therefore, on the plaintiff to prove the bona fide requirement. The defendant has failed to establish that an irretrievable defence which may crop up in his favour if the documents sought for vide application under Order 11 Rule 12 is not produced is prejudiced. Since primary onus lies on the plaintiff to prove the bona fide need for an eviction, in our considered opinion the trial court was well within its jurisdiction as is conferred under Order 11 Rule 12 to have rejected the application.

Next submission by the learned counsel for the petitioner, though with an undertone but have an element of complaint that the judgments which are being cited are not addressed at by the Court, we attach no significance to this submission as it is not unusual for the parties, and counsel to cite innumerable judgments without confining to the ratio attracted and applicable in the matter where it is being cited. No party or counsel is, therefore, entitled to make a grievance that the judgments which are being cited are not relied upon or adverted; as unless the judgments which are being cited has any relevance and if the ratio laid down therein is attracted in the case, we are of the considered opinion that non-reproduction of all the judgments cited are not warranted.

Be that as it may. Since, the scope of interference in writ jurisdiction of the constitution is confined to the extent that the subordinate courts remains within their bounds of authority (please see Waryam Singh and Another Vs. Amarnath and Another, & Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil,

In the case at hand, the Trial Court was within its right in rejecting the application preferred by petitioners/defendants seeking discovery of documents.

In the result petition fails and is hereby dismissed.