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Food Corporation of India Vs. Birendra Nath Dhar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberC.R. No. 1220 of 1977
Judge
Reported inAIR1978Cal264,82CWN611
ActsCode of Civil Procedure (CPC) , 1908 - Section 115, 115(1) and 115(2)
AppellantFood Corporation of India
RespondentBirendra Nath Dhar
Appellant AdvocateSaktinath Mukherjee and ;D.P. Mukherjee, Advs.
Respondent AdvocateKanak Ghose, Adv.
DispositionRevision dismissed
Cases ReferredBaldevdas Shivlal v. Filmis
Excerpt:
- .....make the payment, the opposite party filed the suit3. the plaint was amended by the order of the learned subordinate judge on sept. 2, 1974 and certain statements in para. 2 (a) were inserted. para. 2 (a) is as follows:'regarding the belated claim of the defendant in respect of the sinking of the boat with load as alleged the plaintiff claims that it was an act of god which could not be prevented in spite of the due care and diligence on the part of the plaintiff. as a matter of fact the defendant was satisfied that the said accident was due to an act of god as will be found inter alia from the letter of the defendant addressed to the district manager (south) with copy sent to the plaintiff being no. g/9 (4)/69/rc/1202 d/-22-5-70. in the circumstances the defendant is not entitled to.....
Judgment:

M.M. Dutt, J.

1. This Rule is directed against order No. 57 dated Jan. 13, 1977 of the Subordinate Judge, 1st. Court, Alipore, directing the defendant-petitioner, the Food Corporation of India, to produce certain documents for the inspection of the plaintiff-opposite party.

2. The suit out of which this Rule arises has been instituted by the opposite party, praying for a decree for Rs. 96,880.34 with interest at 12% per annum. The case of the opposite party is that he was appointed by the petitioner as a transport contractor to carry foodstuffs by boat to different places within the district of 24-Par-ganas and the neighbouring districts of West Bengal, from the railway sidings to food depots. According to the movement orders given by the authorities of the Food Corporation of India, goods were being carried by the opposite party from one place to another and bills were being handed over to the representatives concerned. They were accepted for payment after verification. It is alleged that after final adjustment of the running account as on July 12, 1971, the petitioner is liable to pay a balance sum of Rs. 96,880.34. As the petitioner had failed to make the payment, the opposite party filed the suit

3. The plaint was amended by the order of the learned Subordinate Judge on Sept. 2, 1974 and certain statements in para. 2 (a) were inserted. Para. 2 (a) is as follows:

'Regarding the belated claim of the defendant in respect of the sinking of the boat with load as alleged the plaintiff claims that it was an act of God which could not be prevented in spite of the due care and diligence on the part of the plaintiff. As a matter of fact the defendant was satisfied that the said accident was due to an act of God as will be found inter alia from the letter of the defendant addressed to the District Manager (South) with copy sent to the plaintiff being No. G/9 (4)/69/RC/1202 D/-22-5-70. In the circumstances the defendant is not entitled to deduct any sum from the amount of the bills already submitted to the plaintiff on any account whatsoever.'

4. The defence of the petitioner Is inter alia that on Aug. 8, 1969, the District Manager, Calcutta (South) entrusted to the opposite party a consignment of rice for carrying the same to Baxirhat. The goods were being carried by the opposite party on five boats. On August 26, 1969 one of the boats was totally damaged and sank into the Tolly's Nullah, due to the negligence of the opposite party, in conseouence whereof Bihar Boiled Rice weighing 29192 Kgs, was damaged, As per Clause (11) of the agreement a penal rate was imposed for the purpose of recovering the damages and demand notices were duly served on the opposite party for Rs. 1,03,491.35, but the opposite party did not pay the amount as demanded, and to defeat that claim the opposite party has filed the suit without referring to the sinking of the boat and the damage caused to the petitioner. It is contended that the opposite party is not entitled to any amount whatsoever and the suit is a misconceived one.

5. On August 24, 1975 the opposite party filed an application under Order 11, Rule 18 (2) of the Civil P. C. praying for a direction on the petitioner to produce before the Court the following documents:

'(1) Letter No. G/9 (4)-2/69/RC. 852 dated 11th April, 1970 from the Deputy Regional Manager (Movement), Food Corporation of India to the District Manager, Food Corporation of India, Calcutta (South).

(2) Report of the Investigation Officer, Sri B. K. Ganguly submitted under his letter No. 2868/A/12/G915 dated 7th Oct., 1969 to the District Manager, Food Corporation of India, Calcutta (South).

(3) Letter No. 3452/F-25(13)/8/69 D/-7-10-1969 from the District Manager, Food Corporation of India, Calcutta (South) to the Deputy Regional Manager (Movement), Food Corporation of India.'

The learned Subordinate Judge by his order No. 39 dated Nov. 17, 1975 allowed the said application and directed the petitioner to produce the said documents. It appears that thereafter the petitioner prayed for time to produce the said documents on more than one occasion, but ultimately it did not produce the same as directed by the Court. On the failure of the petitioner to file the documents the opposite party filed an application under Order 11, Rule 21 of the Code of Civil Procedure praying for the striking out of the defence of the petitioner. The petitioner also filed an application in which it was stated that the petitioner will not rely upon or use in evidence the said documents. The learned Subordinate Judge by his order No. 47 dated June 21, 1976 disposed of the said application as follows:

'Parties file Hazira. The record is put up today for hearing the petition Under Order 11, Rule 21, C. P. Code. Heard. Subsequently the defendant files a petition stating the facts that the defendant will not produce or depend upon the letters mentioned by the petitioner in his petition Under Order 11, R. 18 (2), C. P. C. for the reasons stated therein. Heard both sides. It is stated in the petition of the defendant that in the written statement the defendant has set up the counter case against the plaintiff and further that the matter referred to in the aforesaid letters and report as called for have not been referred to in the plaint. It is also alleged that the defendant will not produce or depend on or prove those letters and report in support of the case as made out in the defence. In the circumstances stated in the petition of the defendant I do not consider it necessary to strike out the defence as prayed for by the plaintiff. The petition stands disposed of.'

6. Thereafter by order No. 52 dated July 31, 1976 the petitioner was allowed to amend its written statement by incorporating in paragraph 6 thereof certain statements whereby it has been claimed that the opposite party is liable to indemnify the petitioner for the sum of Rs. 1,03,491.35 on account of the loss suffered by it for the negligence of the opposite party.

7. By the impugned order No. 57 dated January 13, 1977, the learned Subordinate Judge reviewed the said order No. 47 dated June 21, 1970 at the instance of the opposite party on his application under Section 151 of the Code and directed the petitioner to produce the said documents for the inspection of the opposite party. Hence this Rule,

8. Mr. Kanan Ghose, learned Advocate appearing on behalf of the opposite party has taken a preliminary objection to the maintainability of this Rule. It is contended by him that an application under Section 115 of the Civil P. C. as amended by the Civil P. C. (Amendment) Act, 1976 is not maintainable inasmuch as by the impugned order no case was decided. In support of this contention he has placed reliance on a decision of the Supreme Court in Baldevdas Shivlal v. Filmis-tan Distributors (India) Pvt. Ltd., : [1970]1SCR435 . In that case, the Supreme Court has laid down that a case may be said to be decided if the Court adjudicates for the purposes of the suit some right or obligation of the parties in controversy. In cur view, the contention made on behalf of the opposite party is no longer available in view of the amendment of Sec. 115 of the Code. Under the explanation to the amended Section 115 of the Code, the expression 'any case which has been decided' includes any order made, or any order deciding an issue, in the course of the suit or other proceeding. The explanation, therefore, clearly lays down that any order that may be passed by a Court, subordinate to the High Court in course of a suit or other proceeding is a case decided within the meaning of Section 115. Though by an order a case may be said to be defined, vet it vonM not be revisable under Section 115, unless there is a question of jurisdiction within the meaning of Clauses (a), (b) or (c) of Subsection (I) of Section 115 and further, unless It is an order as contemplated by Clause. (a) or Clause (b) of the proviso added to Section 115. The proviso is as follows:

'Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where--

(a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or

(b) the order, if allowed to stand, would occasion a failure of justice or causa irreparable injury to the party against whom it was made.'

There is a further restriction which is contained in Sub-section (2) of Section 115 which provides that the High Court shall not, under this section vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.

9. It is, however, contended on behalf of the opposite party that the impugned order is not an order as contemplated either by Clause (a) or by Clause (b) of the proviso. Mr. Saktinath Mukherjee, learned Advocate appearing on behalf of the petitioner concedes that Clause (a) of the proviso is not applicable, but he submits that the impugned order satisfies the provision of Clause (fa) of the proviso. It is contended by him that if the order is allowed to stand, there is a chance of his written statement being struck out under the provision of Rule 21 of Order 11 of the Code causing irreparable injury to the petitioner. On the other hand, it is contended by Mr. Ghose that as the written statement was liable to be struck out only in the event of the petitioner not complying with the order of the court below to produce for inspection the above documents, there could be no question of any failure of justice to the petitioner. He submits that the word 'or' in C1ause (b) of the proviso should be read as 'and', and if so read, the irreparable injury to the petitioner without any failure of justice to him would not be sufficient for the purpose of Clause (b). We are unable to accept this contention. An order may occasion a failure of justice to a party without causing any irreparable injury to him. Tn that case, he can move this Court under Section 115 if the other conditions of that section are satisfied. So also where by an order an irreparable injury would be caused to a party, such party may also move this Court against that order. In our view, there is no reason why the word 'or' should be read as 'and', as contended on behalf of the opposite party. As stated already, if the impugned order is allowed to stand it would cause an irreparable injury to the petitioner and, a? such, it satisfies the provision of Clause (b) of the proviso, the order is therefore revisable under Section 115. The preliminary objection taken on behalf of the opposite party petitioner is accordingly overruled.

10. Coming now to the merits of the case, it appears that the learned Subordinate Judge was under some confusion. He allowed the application of the opposite party for production and inspection of the documents by his order dated Nov. 17, 1975. Although the petitioner did not comply with the said order for production and inspection of the documents, the learned Subordinate Judge by his order No. 47 dated June 21, 1976 refused to strike out the defence of the petitioner on the ground that the petitioner expressed its intention not to rely on the said documents in support of the counter-case made by it in its written statement. In the counter-case that has been made in the written statement, the petitioner did not refer to or rely on the said documents, lor it could not, as the said documents are alleged to support the case of the opposite party. It seems that the learned Subordinate Judge had in his mind Rule 15 of Order 11 which has no application to the facts and circumstances of the case. In a case where R. 15 applies the plaintiff or the defendant, as the case may be, may give an undertaking to Court that he will not rely on the documents referred to in his pleading or affidavit and in that case, there might not be any necessity for passing an order for inspection. The application that was made by the opposite party was one under Order 11, Rule 18 (2) which deals with inspection of documents except such, as are referred to in the pleadings, particulars or affidavits of the party against whom the application is made or disclosed in his affidavit of documents. Thus it appears that the said order No. 47 dated June 21, 1976 was passed by the learned Subordinate Judge on misconception of facts, or in other words, there was an error apparent on the face of the records. The mistake that was committed by the learned Subordinate Judge was rectified by him by the impugned order. It is not disputed that the documents which have been called for from the petitioner at the instance of the opposite party are in the possession of the petitioner. The learned Subordinate Judge seems to be of the opinion that those documents will be necessary for disposing the suit fairly. It is true that in directing the petitioner to produce the said documents for inspection by the opposite party on his application under Section 151 of the Civil P. C., the learned Subordinate Judge, in our view, has to some extent, acted irregularly, for the only matter that could be considered by him on the said application for review under Section 151 was, whether the defence of the petitioner should be struck out under Rule 21 of Order 11. Instead, the learned Subordinate Judge made a fresh order for the production of the said documents for the inspection of the opposite party. In our opinion, the irregularity is not such as would vitiate the order, particularly in view of the fact that it has not caused any prejudice to the petitioner. The investigation report of one B. K. Ganguly, which is one of the documents directed to be produced, is alleged to be in favour of the case of the opposite party. The opposite party was informed of such report by the Deputy Regional Manager (Movement) by his memo dated May 22, 1970 which has been referred to in para. 2 (a) of the plaint. In our view, therefore, the claim for inspection of the said report and two connected letters as made by the opposite party is not unreasonable. The investigation report would not, however, conclude the issue, for it is contended on behalf of the petitioner that subsequent to the said investigation there was a further inquiry into the matter, the result of which falsifies the said investigation report. Be that as it may, it appears to us that the impugned order of the learned Subordinate Judge would not stand in the way of the petitioner to show the alleged falsity of the investigation report which has been directed to be produced. Needless to say, that the report is to be proved in accordance with law. In these circumstances, we are not inclined to interfere with the impugned order. It may, however, be made clear that the petitioner will only offer the said documents for the inspection of the learned Advocate of the opposite party on such date and at such time and place as the learned Subordinate Judge will fix in that regard. The petitioner will not be required to file the said documents in Court and immediately after such inspection, the petitioner will be entitled to take back the documents.

11. The Rule is disposed of as above, but there will be no order for costs. Let the records be sent down to the court below as early as possi-i ble.

D.C. Chakravorti, J.

12. I agree.


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