Madhya Pradesh High Court
Pradeep Kumar Jain vs Nasir Hussain on 8 November, 2021
Author: Vivek Agarwal
Bench: Vivek Agarwal
1 MP-3664-2021
The High Court Of Madhya Pradesh
MP No. 3664 of 2021
(PRADEEP KUMAR JAIN Vs NASIR HUSSAIN)
Jabalpur, Dated : 08-11-2021
Smt.Shobha Menon, learned Senior Counsel assisted by Ms.Sonali
Shrivastava, learned counsel for the petitioner.
Shri Sachin Singh Yadav, learned counsel for the respondent.
Petitioner/defendant has filed this petition challenging order dated 27.8.2021 Annexure P/14 passed in R.C.S No.674A/2017 by learned 3rd Civil Judge (Senior Division) Bhopal rejecting an application moved on behalf of defendant (petitioner herein) under Order XI Rule 14 read with Section 151 so also interrogatories under Order XI Rule 4 of the Code of Civil Procedure, 1908 (for brevity "C.P.C").
Defendant had filed an application seeking direction to the plaintiff to file original documents in the suit. Defendant alleged that the shop in question in relation to which a suit for eviction has been filed by the plaintiff was obtained on rent from one Shri Sarfaraz Hussain. Defendant alleged that he had paid a sum of Rs.4,50,000/- by way of premium (Pagdi) and that must be reflected in the accounts of Shri Sarfaraz Hussain. On the basis of such pleadings, defendant sought a direction to the plaintiff to produce all the original documents relating to the case especially the details of accounts maintained by the plaintiff in relation to the amount of premium (Pagdi), which was paid by the defendant to the plaintiff's father, namely, Shri Sarfaraz Hussain so also that of building permission.
Learned counsel for the petitioner submits that Trial Court has arbitrarily rejected said application without taking into consideration the law laid down by the Supreme Court in the case of Union of India versus Ibrahim Uddin & Another reported in (2012) 8 SCC 148 wherein in Paragraph No.21, it is held that Order XI CPC contains certain provisions with the object to save expense by obtaining information as to material facts Signature Not Verified SAN and to obtain admission to submit interrogatories relating to the same matter Digitally signed by AMIT JAIN Date: 2021.11.15 17:27:47 IST 2 MP-3664-2021 in issue. The expression "matter" means a question or issue in dispute in the action and not the thing about which such dispute arises. The object of introducing such provision is to secure all material documents and to put an end to protracted enquiry with respect to document/material in possession of the other party. In such a fact situation, no adverse inference can be drawn against a party for non-production of a document unless notice is served and procedure is followed.
Reliance is also placed on a judgment of the Supreme Court in the case o f Maria Margarida Sequeira Fernandes & Others versus Erasmo Jack De Sequeira (Dead) Through LRs reported in (2012) 5 SCC 370 wherein placing reliance on Paragraph Nos.32 to 42, it is submitted that the Court's serious endeavour should be to find out where infact the truth lies. The truth should be the guiding star in the entire judicial process. Reliance is also placed on Section 30 of CPC and it is held that it is truth alone which stands invincible and it is truth alone which triumphs; not falsehood.
Similarly, reliance is also placed on a judgment of the Supreme Court in the case of Ramrameshwari Devi & Others versus Nirmala Devi & Others reported in (2011) 8 SCC 249. Placing reliance on Paragraph No.52 of the said judgment, it is submitted that the existing system can be drastically changed or improved if the steps as enumerated in Clause A to Clause J therein are followed by the Trial Courts while dealing with civil trials.Thus, placing reliance on the said judgment, it is submitted that with a view to help the parties to discover the truth, application under Order XI Rule 14 read with Section 151 of CPC should have been allowed.
Learned counsel for the respondent, on the other hand, submits that admittedly a registered rent agreement was executed between the plaintiff and defendant as is contained in Annexure P/3. This rent agreement was executed on 30.7.2012. Suit for eviction has been filed on the basis of the said rent agreement. Thus, the recitals mentioned in the said agreement are binding on Signature Not Verified SAN the parties. It is further submitted that this fact that the rent agreement was Digitally signed by AMIT JAIN Date: 2021.11.15 17:27:47 IST 3 MP-3664-2021 executed in July 2012 is also admitted by the defendant and has been mentioned in the application under Order XI Rule 14 read with Section 151 of CPC. It is submitted that once the rent agreement is the backbone of transaction between the plaintiff and defendant then digging the past having no foundation, is nothing but an attempt to delay the litigation, which is usually the tactics adopted by tenants and precisely with a view to succeed in this tactics, an application under Order XI rule 14 read with Section 151 of CPC was filed. It is also submitted that the plaintiff never accepted any fact of his father accepting premium (Pagdi) of Rs.4,50,000/- and infact denied possession of any accounts & ever denied its maintenance once it has come on record that the amount of premium (Pagdi) was Rs.2,50,000/- then that cannot be disputed by filing an application under Order XI Rule 14 read with Section 151 of CPC. It is further submitted that the application has been rightly dismissed by the learned Trial Court. There is no duty on the amount of deposit (Pagdi) which is refundable. Stamp duty is calculated only on the basis of the annual letting value of the property.
After hearing learned counsel for the parties and going through the record, two issues are involved in the miscellaneous petition, namely, whether the learned Trial Judge was justified in rejecting an application under Order XI Rule 14 read with Section 151 of CPC asking the plaintiff to furnish documents relating to allegation of petitioner/defendant to have paid a sum of Rs.4,50,000/- as premium (Pagdi) to the father of the plaintiff. The second issue is whether the Court below was justified in rejecting an application under Order XI Rule 1&2 read with Section 151 of CPC for placing certain interrogatories to be answered by the plaintiff.
As far as the first issue is concerned, an agreement of the year 1988 is available on record. This agreement was executed between the present petitioner and Sarfaraz Hussain. In this agreement, which was executed on 23.12.1988 and which was to come into effect from 5.1.1989, there is no stipulation in regard to payment of any premium (Pagdi). Petitioner has not Signature Not Verified SAN Digitally signed by AMIT JAIN Date: 2021.11.15 17:27:47 IST 4 MP-3664-2021 disclosed any date, source or mode of payment to the father of the plaintiff. Thirdly the submission made by learned Senior Counsel for the petitioner that only a sum of Rs.2,50,000/- was mentioned as deposit in place of Rs.4,50,000/- at the instance of plaintiff with a view to save registration charges and stamp duty is also contrary to the provisions of the Indian Stamp Act, 1899 and the Registration Act, 1908.
It is also an admitted fact that the agreement, which was executed between the parties on 30.7.2012 and has been registered with the competent authority does not have any stipulation in regard to payment of any other amount of premium (Pagdi) except what is mentioned in the agreement and this issue has never been raised by the petitioner/defendant through any communication or other documentary evidence on record, therefore, the purpose of Order XI Rule 14 of CPC being discovery of fact, it is necessary that for applicability of the rule, the party seeking an order for production has to satisfy that alleged document is in possession or power of the person from whom production of document is being sought, it is relating to any matter in question in such suit and thirdly that the Court should think it right to order for production of such document.
As far as first exigency is concerned, the petitioner/defendant has failed to discharge his burden. Petitioner/defendant has neither furnished any detail like date, time, place, source and mode of payment nor has said that any other document was executed between him and the father of the plaintiff then under the said facts and circumstances of the case, the learned Trial Court has rightly held that the documents in question are not the documents relating to the matters in dispute.The law laid down in the cases of Union of India versus Ibrahim Uddin & Another (supra), Maria Margarida Sequeira Fernandes & Others versus Erasmo Jack De Sequeira (Dead) Through LRs (supra), Ramrameshwari Devi & Others versus Nirmala Devi & Others (supra) turns on its own facts.
As far as interrogatories are concerned, the Trial Court has rightly Signature Not Verified SAN Digitally signed by AMIT JAIN Date: 2021.11.15 17:27:47 IST 5 MP-3664-2021 observed that firstly there is non-compliance of provisions of Order XI Rule 4 of CPC as application is not in Form No.2 in Appendix-C. Secondly, it has rightly observed that the interrogatories, which do not relate to any matter in question in the suit shall be deemed to be irrelevant notwithstanding that they might be admissible in oral cross examination of a witness.
Once it has come on record that the plaintiff denied any transaction between him and his father in relation to Rs.4,50,000/- so also keeping any accounts and has admitted that the amount of premium (Pagdi) was only Rs.2,50,000/- as has been mentioned in the agreement dated 30.7.2012 then the questions put only to test the creditability of party interrogated but not having reasonable close connection with "any matters in question" are not to be allowed as has been held by the Supreme Court in the case of Raj Narain verus Smt.Indira Nehru Gandhi & Another AIR 1972 SC 1302.
Thus, when tested on the touchstone of the aforesaid legal position then the impugned order cannot be faulted with especially when the law laid down by the Supreme Court in the case of Union of India versus Ibrahim Uddin & Another (supra) provides that expression "matter" means a question or issue in dispute in the action and not the thing about which such dispute arises.
Similarly, the law laid down in the case of Maria Margarida Sequeira Fernandes & Others versus Erasmo Jack De Sequeira (Dead) Through LRs (supra) is also not applicable to the facts of the present case because it is not the truth discovery of which is being sought but the petitioner/defendant without disclosing any of the relevant factors like date, time, place and in presence of whom is not permitted to raise issues to which the plaintiff was a party and there exists an agreement with the father of the plaintiff, which does not contain any stipulation in regard to payment of premium (Pagdi). Similarly, reliance placed on the judgment of Ramrameshwari Devi & Others versus Nirmala Devi & Others (supra) is also of no help to the petitioner and it is evident that the Trial Court has not Signature Not Verified SAN Digitally signed by AMIT JAIN Date: 2021.11.15 17:27:47 IST 6 MP-3664-2021 committed any illegality in deciding the application on is own merits.
Accordingly, this miscellaneous petition fails and is dismissed.
(VIVEK AGARWAL) JUDGE amit Signature Not Verified SAN Digitally signed by AMIT JAIN Date: 2021.11.15 17:27:47 IST