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Lajpat Rai Vs. Tej Bhan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 112D of 1955
Judge
Reported inAIR1957P& H14
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 11, Rules 12 to 20
AppellantLajpat Rai
RespondentTej Bhan and ors.
Appellant Advocate A.N. Grover, Adv.
Respondent Advocate P.S. Chawla, Adv.
DispositionPetition accepted
Cases ReferredWhte v. Ahrens
Excerpt:
.....or in other countries it is well established that this right should be granted as a matter of routine, but considering the conditions prevailing in this country it appears to me to be dangerous to hold that such a right should be considered to have been established in this country. it is well known that litigants here are as much interested in securing a decision of the suitp in their favour as in harassing their opponents and in compelling them to incur heavy expenses. clearly, the court did not judicially exercise the discretion vested in it under order 11. b. 1. he argued that a party has a right to get documents produced by his adversary, for they are relevant to the case at any stage and that court should not deny this light except, as i have already mentioned, for strong..........plaintiff applied under order 11, rules 12 and 14, civil p. c., for discovery and inspection of account-books of the partnership. the defendants contested this application but on 30-12-1954 the court passed a short order reading:'the defendant to discover the documents on oath on 13-1-54 (?) (13-1-55).'on this date the defendants discovered the documents and made an application under order 11, rule 20, civil p. c., requesting the court that the inspection may be deferred till the decision on issue no. 1 which will decide the plaintiff's right to ask for rendition of partnership accounts. the plaintiff replied on 4-2-1955 and on that day the trial court passed the order reading:'the discovery and production of the account-books relating to the partnership is material for the proof of.....
Judgment:
ORDER

Bishan Narain, J.

1. This revision petition under Section 115, Civil P. C., has been filed fay the defendants in a suit which is pending in the Court of Sub Judge, 1st Class, Delhi. The plaintiff and the five defendants entered into a partnership on certain terras on 17-10-1950. The business of partnership was to be that of builders and contractors.

The partnership took three contracts for execution from the Government before 31-8-1952 On this date, namely, 31-8-1952 the plaintiff Tej Bhan executed an agreement retiring from the partnership and according to this document he went through the accounts and received about Rs. 700/- in final settlement of the same.

The plaintiff filed the present suit on 28-1-1954 seeking a declaration that the document of 31-8-1952 is void as brought about by the defendants by undue influence, pressure and coercion and sought its cancellation; He also sought relief of declaration that the credit and debit items and payment of Rs. 783/9/- mentioned in the document were neither owned nor received by him as no accounts had been gone into between the parties on that day. This suit is contested by the defendants. On 25-11-1954 the trial Court framed the following issues:

'(1) Whether the agreement of retirement dated 31-8-52 was executed by the plaintiff under coercion and undue influence as alleged in the plaint? O.P.P.

(2) Whether no accounts were gone into by the parties at the time of the writing of the agreement Ex. P-l? O.P.P.

(3) Whether a sum of Rs. 23,0007- was not found due from the plaintiff and adjusted in the account as stated in Ex. P-l? O.P.P.

(4) Whether a sum of Rs. 783/9/- was not paid in cash to the plaintiff as stated in Ex. P-l? O.P.P.

(5) Whether the plaintiff is estopped from filing this suit by his acts and conduct? O.P.P.

(6) Whether the defendants are entitled to special costs? If so to what amount? O.P.D.

(7) Relief.'

Before any evidence was led in the case the plaintiff applied under Order 11, Rules 12 and 14, Civil P. C., for discovery and inspection of account-books of the partnership. The defendants contested this application but on 30-12-1954 the Court passed a short order reading:

'The defendant to discover the documents on oath on 13-1-54 (?) (13-1-55).'

On this date the defendants discovered the documents and made an application under Order 11, Rule 20, Civil P. C., requesting the Court that the inspection may be deferred till the decision on issue No. 1 which will decide the plaintiff's right to ask for rendition of partnership accounts. The plaintiff replied on 4-2-1955 and on that day the trial Court passed the order reading:

'The discovery and production of the account-books relating to the partnership is material for the proof of issues Nos. 1 and 2. Therefore the application of the defendants is dismissed because the question of discovery and production of the account-books of the firm cannot be deferred till issue No. 1 is decided. But the plaintiff shall give detailed particulars of the books of accounts and the documents sought to be produced by the defendants.'

and it is against this order that the present revision petition has been filed.

2. Now, it cannot be, doubted that in certain circumstances it may be necessary to afford facilities to a party to the suit to prove his case or to demolish his opponent's case by allowing him to have access to the documents in the possession or in the power of the opponent and the provisions of Order 11, Rr. 12 to 20, have been enacted to give the necessary power to Courts.

A party is entitled to claim inspection of documents mentioned in the opponent's pleadings (vide Order 11, Rule 15), but if the opponent refuses to comply With this notice then the Court may fix time and place for inspection of the same provided it is of the opinion that the order is necessary for fair disposal of the suit for saving costs of litigation (vide Order 11, Rule 18 (2)).

As for the documents that are not mentioned in the pleadings a party may apply under Order 11, Rule 12 or Order 11, Rule 18(2), Civil P. C., but the application cannot be granted unless the Court is of the opinion that the discovery or inspection is necessary for fair disposal of the suit or for saving costs. The Court may defer an order under Order 11, Rule 12, Civil P. C., if it is satisfied that such discovery is not necessary at that stage of the suit.

If a party from whom discovery or inspection, is sought objects to the same, the determination of any issue or question in dispute or for any other reason it is desirable to do so till that issue or question is decided (vide Order ll, Rule 20).

3. Therefore, it is clear that the intention of the legislature in enacting these provisions of law is to empower Courts to require a party's adversary to give discovery or inspection of certain documents if such an order is considered necessary in the interests of fair disposal of the suit or to reduce litigation expenses. The primary object of these provisions is to save costs and to assist Courts in the administration of justice. It necessarily follows that the Court concerned must judicially exercise its discretion keeping the object of these provisions of law in view.

An order granting discovery and inspection may in some cases result-in serious prejudice and injury to the party that has to comply with it and, therefore, it is necessary that the Court should apply its mind carefully before making the order. It is not the intention of the legislature that such an order should be made as a matter of routine and as one of no serious consequence.

The Courts, when moved under these provisions of law, must first decide whether the documents of which discovery or inspection is sought relate to any question in the suit and then decide if it is necessary to grant the application at that stage of the suit in the interests of its fair disposal or to save litigation expenses.

The discretion vested in Courts must be exercised judicially to further the primary object of these provisions and care must be taken that they are not used with an ulterior motive. Obviously, the decision rests on the circumstances of each case and it is not possible to lay any hard and fast rule in this matter.

4. I am unable to accept the contention of Mr. Chawla that a party has a right to obtain an order of discovery and inspection and that in any case it must be granted by Courts unless cogent reasons are shown against it. This contention is not In accord with the language used by the legislature in enactins these provisions of law.

It may be that in England or in other countries it is well established that this right should be granted as a matter of routine, but considering the conditions prevailing in this country it appears to me to be dangerous to hold that such a right should be considered to have been established in this country.

It is well known that litigants here are as much interested in securing a decision of the suitp in their favour as in harassing their opponents and in compelling them to incur heavy expenses. Such a right can easily become a handy weapon which may be used by unscrupulous litigants merely to harass or annoy their opponents. I am in respectful agreement with the following observations of Wallace J. in K.V. Ramachari v. K.V. Krishnama-chari, ILR 47 Mad 934 at p. 941, para 10; (AIR 1924 Mad 846 at p. 848) (A):

'I must impress 0.11 the lower Court that such a privilege as inspection by a party of his adversary's documents is not a matter of routine, but is to be permitted or refused only after a judicial decision not only as to the right to inspection itself, but with reference also to the stage of the case at which such right is to be permitted, and that it is to be exercised so as to result in as little harm as possible to parties who are entitled to have the protection of the Court in carrying on their lawful pursuits.'

5. Now, in the present case the plaintiff desires discovery and inspection of the partnership account before any evidence is led in the case. It is nobody's case that the defendants referred to these documents in their written statement. The order on the plaintiff's application under Order 11, Rules 12 and 14, Civil P. C. is dated 30-12-1954 and' has been reproduced above.

In this order there is no reference to the defendants' objections dated 28-12-1954 and in any case it does not give any reason for exercising the discretion vested in the Court in favour of the plaintiff. The order appears to have been made as a matter of routine. The defendants, however, had complied with this order and had given discovery of the documents on 13-1-1954 as ordered.

The defendants then applied on the same day under Order 11. Rule 20, Civil P. C., objecting to the in-pection of the account-books by the plaintiff before issue No. 1 was decided and before the plaintiff established his right as a partner to inspect accounts.

The trial Court dismissed this application on 4-2-1955 and observed that the account-books are material evidence for the decision of issues Nos. l and 2 and that there is no reason for deferring the decision of the application till issue No. 1 is decided.

It will be noticed that this is not a correct approach to the case. There is no reference in the order as to whether the Inspection of these books at that stage was necessary or not. No reason is given for refusing to reserve the order till issue No. l had been decided. It is, therefore, clear that the trial Court making this order did not judicially examine the defendants' objection to it nor did It decide whether issue No. 1 should or should not be decided before the inspection of the account-books was allowed to the plaintiif.

In these circumstances it appears to me thatthis Court has ample power to interfere with theorder under revision and accordingly I reject theplaintiff-respondent's objection that this Court hasno power under Section 115, Civil P. C., to interfere withthe order.

Clearly, the Court did not judicially exercise the discretion vested in it under Order 11. B. 20 and, therefore, it acted illegally or with material irregularity in the exercise of its jurisdiction. In this connection the judgments reported in ILR 47 Mad 934: (AIR 1924 Mad 846) (A) and Gobinda Mohun v. Magneram Bangur & CO., AIR 1940 Cat 331 (B), may be seen. In these cases the learned Judges interfered with such an order under Section 115, Civil P.C.

6. As for the merits the learned counsel for the plaintiff-respondent in his able arguments has urged that the inspection of these books is necessary at this stage because after inspection the plaintiff may discover some material which' is relevant or may be relevant for the proof of issue No. 1. He argued that a party has a right to get documents produced by his adversary, for they are relevant to the case at any stage and that Court should not deny this light except, as I have already mentioned, for strong reasons.

In support of his argument he has placed his reliance on the judgment in Sutherland v. Singhee Churan Dutt, ILR 10 Cal 808 (C), wherein It is observed regarding the documents sought to be discovered and inspected:

'..... .whether the contract, if made, is voidable on the ground of misrepresentation, they are or they probably are, or they may be, material to the defendant's case. So far as I can judge from the correspondence, I should think it probable that they are material. I do not like saying more than that; it is not the time to construe the letter of October 6th. But it is enough if they may reasonably be thought material to an issue which must be raised at the hearing.'

Mr. Chawla has also relied on the observations of Brett J. in Compagnie Pinanciere du Pacifique v. Peruvian Guano Co., (1882) 11 QB D 55 (D) which is cited with approval by Edgley J. In AIR 1940 Cal 331 (B). The observation reads:

'It seems to me that every document relates to the matters in question in the action which not only would be evidence upon any issue, but also which it is reasonable to suppose contains information which may, not which must, either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary.'

Thus according to Mr. Chawla the inspection of the account books should be allowed inasmuch as It is possible on inspection to discover that the entries in the account-books do not tally with the recitals in the impugned document. According to him, if such an evidence becomes available to the plaintiff then it would be relevant for the purposes of showing that the document was brought about by coercion etc, and for this purpose, according to him, It is necessary to examine the account-books from the inception of the partnership till the contracts undertaken by the partnership before 31-8^1952 were completed.

It is however, t? be noted that in the plaint the fraud and coercion, which are alleged by the plaintiff, have nothing to do with the affairs of the partnership and the allegations are independent of it. In para 5 of the plaint it is alleged that the defendants brought to bear undue pressure on the plaintiff if he did not sever his connection with the partnership in view of the fact that the M.E.S. Western Command Department had appointed a Court of Enquiry to investigate into the complaints against the plaintiff regarding transactions which had nothing to do with the partnership In suit.

Thus, as I have stated, the. coercion alleged is Independent of the partnership now in suit. In these circumstances it cannot be said that it can be reasonably thought that the entries in the account-books are material to issue No. 1 framed in the present suit. I suggest in the course of arguments that the plaintiff may inspect the account-books from 1-4-1952 to 31-8-1952 but this suggestion of mine was not accepted by Mr. Chawla. This rejection makes me suspicious of the bona fides of the plaintiff.

Mr. Chawla relied on certain cases in which inspection was allowed before the trial began and placed particular reliance on Whte v. Ahrens, (18B4) 26 Ch D 717 (E). In that case, however, the plaintiff, a resident of London, had alleged fraud on the ground that his agent in Japan sent false accounts and defrauded him and therefore, the settled accounts between the parties should be reopened. Obviously, in such a case the entries In the agent's books are very material for' the decision of the case. Even in that case Fry L. J. took a view different from the view taken by Bacon V. C., and Cotton L. J.

7. In the present case the plaintiff wishes to inspect the books with a view to fish out, if possible, some possible entries in the account-books in support of his case and I for one would not encourage such a fishing enquiry.

I am, therefore, of the opinion that this is nota case in which the Court should have allowed insspection of the partnership books before the trialhad begun and before the plaintiff had made out acase that the inspection was necessary for the' pin-poses of fair disposal of the case and for savinglitigation expenses. I accordingly accept this petition and set aside the Court's order dated 4-2-1955dismissing the defendants' application under O 11Rule 20, Civil P. C. There will be no Order as tocosts. The parties have been directed to appearbefore the trial Court on 8-10-56.


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