Madan Prasad Gupta @ Madan Prasad vs Ram Narain Ram @ Ram Narain Prasad

Aftab Alam, J.—The opposite party in this case (plaintiff in the court below) appears to be one of those head strong persons who would not yield an inch of the ground only in order to lose one mile in another direction. The controversy that has been brought to this Court in this revision application and has come to this Division Bench on reference, if viewed from a practical point of view, appears to be almost trivial. However, the opposite party plaintiff insists for a decision on merits. Hence, I proceed to render my judgment on the question whether before filing his written statement in the suit, the petitioner (defendant in the court below) was legally entitled to have an inspection of a document which came under reference in the plaint. The facts of this case are very brief and may be stated as follows. The opposite party-plaintiff instituted a suit for eviction of the petitioner from the suit premises. The eviction was sought on grounds of personal necessity and expiry of tenancy by efflux of time. It was stated in the plaint that the relationship of landlord and tenant between the plaintiff and the defendant was established on the basis of a Kirayanama which was said to be executed by the defendant tenant on 1.11.1988. To say that a reference to this Kirayanama was made in some detail in the plaint would be stating the obvious.

Personal necessity and expiry of the period of tenancy being the two grounds on which eviction was sought, the suit was governed by the special procedure sa envisaged u/s 14 of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982 (''the Act'', for short). It may be noted at this stage that one of the important features of the scheme u/s 14 of the Act is an expeditious disposal of the suit keeping in view the urgent need of the landlord.

On having filed an affidavit in that regard, the petitioner defendant got permission of the court to contest the suit in terms of sub-section (5) of section 14 of the Act. In the petitioner''s affidavit seeking leave to contest the suit it was stated that at the time of the commencement of the shop (in the suit premises), the plaintiff had got the defendant''s signature on a blank stamped paper for a Kirayanama. It was further stated that the contents of the Kirayanama were take and fraudulent and by getting the scribe in his collusion the plaintiff had got incorrect statement and conditions entered into this Kirayanama.

Having got the permission of the court to contest the suit, the petitioner was required to file a written statement. But before filing any written statement, the petitioner filed a petition in the court below on 5.5.1990 asking for an inspection of the Kirayanama dated 1.4.1988, a reference to which was made in para 3 of the plaint and which was in deposit with the trial court in a sealed envelope. It was stated that it was not possible to file a written statement without having examined the said Kirayanama.

The plaintiff opposite party resisted this petition by filing a rejoinder. The plaintiff objected that the defendant''s request was not bonafide; it was also said that the defendant had full knowledge of this Kirayanama and, in fact, a reference to it was made in the earlier affidavit filed by him. It was further stated that the idea behind the request for inspection was to delay the suit.

It is curious to see that having said that the defendant''s request for the inspection of the Kirayanama was only intended to delay the suit, the plaintiff walked right into the trap. He resisted the request successfully before the trial court. And when the petitioner came in revision to this Court, the plaintiff opposite party followed him here and opposed the prayer for inspection when this application was taken up for hearing before a learned single Judge and finally contested the matter before this division Bench where the application came on a reference. Thus, more than two years have already lapsed on this wrangle which to my mind was of no practical significance for the suit. But I find myself once again straying into the realm of practicality.

Coming back to the merits of the case, the provision relating to inspection of documents is contained in Order IX, rule 15 of the CPC (''the Code'', for short); it is as follows :

15, Inspection of documents referred to in pleadings or affidavits.--Every party to a suit shall be entitled at any time to give notice to any other party, in whose pleadings or affidavits reference is made to any document (or who has entered any document in any list annexed to the pleadings,) or produce such documents for the inspection of the party giving such notice, or of his pleader, and to permit him or take copies thereof; and any party not complying with such notice shall not afterwards be at liberty to put any such document in evidence on his behalf in such suit unless he shall satisfy the Court that such document relates only to his own title, he being a defendant to the suit, or that he had some other cause or excuse which the Court shall deem sufficient for not complying with notice, in which case the Court may allow the same to be put in evidence on such terms as to costs and otherwise as the Court shall think fit.

From a plaint reading of the above quoted provision it is clear that all that is required for a request for inspection is that the document may come under reference in the pleading or affidavits or it should be included in any list annexed to the pleadings.

Learned Counsel for the opposite party, however, contended that the provision of Order XI, rule 15 was controlled by the provision of Order VII, rule 14(1) and (2) Rule 14 of Order VII is under the heading ''documents relied on in plaint''; Sub-rule (1) of rule 14 is as follows :

Where a plaintiff sues upon a document in his possession or power, he shall produce it in Court when the plaint is presented, and shall at the same time deliver the document or a copy thereof to be filed with the plaint.

Sub-rule (2) is in the following terms :

List of other documents.--Where he relies on any other documents (whether in his possession or power or not as evidence in support of his claim he shall enter such documents in a list to be added or annexed to the plaint.

It is contended that where a document forms the foundation of the suit or in other words where the suit is based upon a document, it is to be produced in the court when the plaint is presented and the document itself or a copy thereof has also to be delivered alongwith the plaint. According to the plaintiff opposite party an inspection cannot be made of such a document at least before the filing of the written statement and such a document is excluded from the provision of Order XI rule 15 of the Code. In support of the contention reliance is placed upon a single Judge decision in the case of Birendra Kumar Gupta Vs. Sm. Chinta Devi, . In this case the plaintiff had filed a suit for specific performance of a contract for sale. A prayer was made on behalf of the defendant, before filing the written statement, for having an inspection of the agreement for sale allegedly executed by him. It was held by the learned Single Judge that Order XI rule 15 did not refer to a document which formed the very foundation of the suit. The learned Judge observed that provision of Order XI rule 15 of the Code "obviously refers to the documents which are not the basis of the suit and have to be produced at a later stage simply as evidence. The omission of the class of documents referred to in Order VII rule 14 in rule 15 of Order XI is advisdeably done as the defendant is supposed to be aware of such a document and he should file his written statement before any inspection setting up his defence as he chooses. The documents mentioned in Order VII rule 14 cannot be said to be document referred to in the pleading or affidavits within the meaning of Order XI rule 15 of the Code. The privilege of inspection by a party of the documents of his adversary is not a matter of routine but can be allowed only on judicial consideration. Granting of inspection prior to the filing of the written statement in such cases may result in fishing out false and frivolous pleas of defence by a defendant.

With utmost respect to the learned single Judge, I an unable to follow the logic. If the document is so important as to form the foundation of the suit or in the other words where a plaintiff sues upon a particular document the law requires that the document or a copy thereof must be delivered to be filed with the plaint. The intent to my mind is plainly that the defendant who has to resist the suit must get an opportunity to examine that document before responding to the plaintiff''s claim. The difference in the two categories of documents as mentioned in sub-rule (1) and (2) of rule 14 of Order VII in my opinion is that in regard to the documents of the first category (which form the very foundation of the suit the defendant must be afforded an opportunity to see thorn even without his specially asking for it before be is required to file a written statement. As regards the documents of the other category (where the documents are relied on as evidence in support of the parties claim) it is upto the defendant to have an inspection of them by making a specific prayer for the same.

However, I need not go into this aspect of the matter any further. Questions such as (i) the object of classification of the documents in sub-rules (1) and (2) of rule 14 of Order VII, (ii) the purpose behind the legal requirement that one class of documents (or a copy thereof) must be delivered to be filed with the plaint while the other should be entered in a list annexed with the plaint or (iii) whether the documents falling under sub-rule (1) of rule 14, Order VII are to be sent to the defendant as part of the plaint along with the summons under Order V rule 2 do not arise in this case. It is for this simple reason that I refrain from making any considered pronouncement on these questions.

The question that falls for consideration in this case is whether the plain language of Order XI rule 15 is controlled and circumscribed by Order VII rule 14 (1) and (2). In this regard I am of the firm opinion that Order XI rule 15 is quite independent and is in no way controlled or circumscribed by the provision of Older VII rule 14. I would only like to add that I am not pronouncing anything new in this regard as the matter has already been considered and conclusively determined by a bench decision of this Court in the case of Kamakshya Narain Singh v. Satya Narain Singh, 1955 B.L.J.R. 265. Unfortunately this division Bench decision was not brought to the notice of the learned single Judge in Birendra Kumar Gupta Vs. Sm. Chinta Devi, . This omission apparently led the learned single Judge to take a view contrary to the one approved by the division Bench.

In the case of Kamakshya Narain Singh the question whether Order VII rule 14 controlled the provision of Order XI rule 15 was specifically raised and was rejected after a detailed consideration. The division Bench laid down the law as follows:

Order XI rule 15 speaks of documents which have been referred to in the pleadings or the affidavits and does not make any distinction whether they are the foundation of the suit or whether they are merely of an evidentiary character. The scope of Order XI rule 15 is very wide and any restriction put on the language of this rule will not, in my opinion, be proper

The decision thereafter pointed out that the right of inspection under Order XI rule 15 was rejected by the proviso to rule 18 (1) of Order XI, that is to say, the Court may refuse the requisition for inspection if it was of the opinion that it was not necessary either for disposing fairly of the suit or for saving costs.

It was further observed in that decision as follows:

This rule does not prohibit the defendant from asking the inspection of documents before the filing of the written statement. The only point that has to be examined in this connection is whether in the pleading or affidavit reference is made of such documents. If reference has been made of such documents in the plaint, no matter whether they create any right in favour of the plaintiff or they are mere pieces of evidence, the defendant can legitimately ask the court for their production for inspection before filing the written statement and this prayer the court in the ordinary course, allow unless it is of the opinion that these are not necessary for fairly disposing of the suit or for saving cost as provided in Order XI rule 18. Under Sub-rule (1) the burden rests on the party resisting an order for inspection to show that it should not be made in the special circumstances of the case. As pointed out in the Madras decision it would not be a proper exercise of discretion to refuse inspection on the general ground that it was sought before the written statement was filed. The court, certainly, has a discretion, but that is limited to the terms of the proviso to sub-rule (1).

I find myself in respectful agreement with the view taken by the earlier division Bench in 1955 B.L.J.R. 265 and consequently I am constrained to hold that the single Judge decision reported in Birendra Kumar Gupta Vs. Sm. Chinta Devi, does not lay down the law correctly and has to be overruled. To conclude I find that this case is fully covered by an earlier division Bench decision of this Court. As a result, this application has to be allowed; the impugned order dated 1.6.1990 is set aside and it is directed that the petitioner shall be entitled to have an inspection of the Kirayanama dated 1.12.1988 before filing his written statement in the suit.

S.N. Jha, J

I agree.