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Manojkumar Arvindbhai Patel v. Arvindbhai Jashbhai Patel, (Gujarat) : Law Finder Doc
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GUJARAT HIGH COURT
Before:- Sandeep N. Bhatt, J.
Special Civil Application No. 16841 of 2021 With Civil Application (For Direction) No. 2 of
2022 In Special Civil Application No. 16841 of 2021. D/d. 23.03.2023.
Manojkumar Arvindbhai Patel - Petitioner
Versus
Arvindbhai Jashbhai Patel - Respondent
Mr. Yogesh G. Kanade(3114) for the Petitioner Nos. 1, 2, 3 for the Respondent No. 1
Mr. Aditya J. Pandya(6991) for the Respondent No. 2
IMPORTANT
Application under Order XI Rules 12 and 14 of the Code of Civil Procedure, 1908, for
discovery and production of documents can be allowed if it is shown that the documents
sought are relevant and necessary for the proper adjudication of the case.
A. Code of Civil Procedure, 1908 Order XI Rules 12 and 14 Application for discovery and
production of documents - Held, discovery cannot be refused on the ground that the
documents are not directly exchanged between the parties to the suit - Documents must
satisfy the requirements of being in possession or power of a party to the suit and relate
to any matter in question in the suit - Discovery can be sought at any stage of the suit if
genuine grounds are made out.
[Paras 6.2, 6.3, 6.4, 6.5]
B. Code of Civil Procedure, 1908 Order XI Rules 12 and 14 Production of documents -
Court has discretion to order production of documents during suit proceedings - Such an
order can be made if it is necessary for fair disposal of the suit or for saving costs -
Prejudice to the other party is a relevant consideration.
[Paras 6.4, 6.5]
C. Constitution of India Article 227 Exercise of supervisory jurisdiction - High Court can
interfere with orders of subordinate courts if the decision is erroneous and causes
injustice - Quashing of impugned order and direction to allow production of documents
deemed necessary for deciding the suit.
[Paras 6.6]
E/MM/11/3/2025
Cases Referred :-
Harshadkumar Kantilal Bhalodwala v. Ishwarbhai Chandubhai Patel, 2010 (2) GLR 1041
Kewal Krishan v. Rajesh Kumar, AIR 2022 SC 564
M/s Kamalia Brothers and Co. v. State of Gujarat, AIR 1992 GUJ 138
ORAL ORDER
Sandeep N. Bhatt, J. - Heard learned advocate Mr. Yogesh G. Kanade for the petitioners
and learned advocate Mr. Aditya J. Pandya for the respondent No.2 and respondent No.1
is expired during the pendency of the suit proceedings.
2. The present petition is preferred by the petitioners challenging the impugned order
dated 04.09.2021 passed below Exh.58 in Special Civil Suit No.172 of 2011 by the
Additional Senior Civil Judge, Vadodara, whereby, the trial Court has dismissed the
application filed under Order XI Rule 12 & 14 of the Code of Civil Procedure, 1908, by
which, the petitioners prayed for production of documents from original defendant
No.2.
3.1 Brief facts of the case are as such that the present petitioners are the original
plaintiffs, who has filed Special Civil Suit No.172 of 2011 for declaration of cancellation
of registered sale deed dated 01.11.2010 being illegal and void, which is executed before
the Sub-Registrar Officer, Vadodara Vibhag-2 at Sr. No.10794. It is the case of the
petitioners that the suit property is ancestral property, and therefore, in the revenue
records, the names of the petitioners have been mutated by way of Mutation Entry
No.2286 on 03.07.1981. The plaintiffs are the owner of the land Mauje Sama, Vadodara
Survey Nos. 314, 308, 619, 420 and 309 and total 6 acre and 29 Gunthas land have been
procured.
3.2 It is further the case of the petitioners that the petitioners have also filed Exh.5
application for interim injunction, which is vide order dated 09.01.2018 is allowed by the
learned Additional Senior Civil Judge & A.C.J. Magistrate, Vadodara. It is further the case
of the petitioners that till long span of time, the defendants had not filed reply, and
therefore, the right to submit written submission have been closed by the trial Court,
and therefore, they have preferred Special Civil Application No.6082 of 2018 before this
Court, which is erroneously allowed vide order dated 10.02.2020 with a condition to pay
cost of litigation of Rs.5000/- and is directed to file the written statement within
stipulated time period of time, and thereafter, the respondents have filed their written
statement under Order VIII, Rule 6 of Code of Civil Procedure and also have filed the
counter claim on 28.08.2020, and thereafter, the petitioners have preferred the
application at Exh.58 by seeking the production of certain documents at para 7 of the
application, such as, documentary evidence pertains to transaction between defendant
Nos.1 and 2 regarding the sale deed like; details of cheque and bank statement through
which defendant No.2 has paid the amount of sale consideration to defendant No.1.
3.3 It is further sought the balance sheet and income tax return of the defendant No.2 of
the financial year 2008-09, 2009-2010, 2010-2011 and also sought information about
whether any agreement to sale is executed prior to the execution of sale deed in favour
of defendant No.2 and also the same is opposed by the respondents by filing objection by
stating that the sale deed, which is executed by defendant No.1 in favour of defendant
No.2, is never challenged by defendant No.1 during his lifetime, neither any grievance is
made about the non-payment of the sale consideration. It is also urged in that objection
that notice is also served under Section 135(d) Bombay Land Revenue Code to the
plaintiffs in the year 2010, and therefore, they are aware about the sale transaction and
therefore, the application, which is filed at belated stage after almost 10 years from filing
of the suit under the provision of Order XI Rule 12 and 14 of the CPC, is apparently not
maintainable and is required to be dismissed as it is filed with some ulterior motives.
3.4 Thereafter, the learned trial Court has heard the parties and has dismissed the
application by observing that the plaintiff himself has averred something in his plaint,
which clearly establish that the plaintiff is aware about the sale transaction and not only
that total sale consideration of Rs.44/- lakhs is also paid by cheque and in cash by
registered sale deed dated 01.11.2010, which is registered with the Sub-Registrar Office,
and thereafter, the notice under Section 135(d) of the Bombay Land Revenue Code is also
served upon the plaintiffs, and therefore, the plaintiffs cannot now ask about the sale
consideration.
3.5 Learned advocate appearing for the parties have relied on many judgments.
Thereafter, the learned trial Court has considered the said application by rejecting the say
of the petitioners. There is need to produce the documents under the provision of Order
XI Rule 12 and 14 of the CPC. Further, defendant No.1 during his lifetime has never
raised any cloud regarding none receipt of sale consideration, and therefore, mainly on
that ground, the application filed by the plaintiff is rejected.
4.1 Learned advocate Mr. Yogesh G. Kanade for the petitioners has submitted that the
prayer made in the plaint itself shows that the petitioners are challenging the sale deed
executed in favour of the defendant No.2 by defendant No.1, who happens to be father
of defendant No.2. He has further submitted that interim injunction is also granted in
favour of plaintiffs in the year 2018 as defendant No.2 has not contested the suit till that
day when right of the defendant No.2 is closed to file written statement. Thereafter, the
defendant No.2 has also approached this Court by filing Special Civil Application, by
which the right is open on condition to pay the cost of Rs.5,000/- in the order dated
10.02.2020 passed in Special Civil Application No.6082 of 2018. He has further submitted
that the documents, which are sought to be produced by the plaintiffs, are very
necessary to decide the suit proceedings which will not cause any prejudice to the rights
of the defendants. On the contrary, such documents is available on the record, the Court
can certainly examine the rival claims of the parties in proper manner.
4.2 He has relied upon the judgment in the case of Kewal Krishan v. Rajesh Kumar And
Others reported in AIR 2022 SC 564 and has submitted that if it is executed without any
comment or sale consideration, it should be considered void. He has also relied on the
judgment of this Court in the case of Harshadkumar Kantilal Bhalodwala & Anr v.
Ishwarbhai Chandubhai Patel & Ors. reported in 2010 (2) GLR 1041, wherein the Court
has considered the aspect to establish the case by the parties by producing the source of
money like passbook, income tax return, etc., and therefore, he has submitted this
judgment is also helpful to the case of present petitioners. He has lastly relied on the
judgment in the case of M/s Kamalia Brothers and Co. v. State of Gujarat reported in AIR
1992 GUJ 138, which pertains to the provisions of Order XI Rule 12 of the CPC and he has
pointed out that such discovery of documents/letters cannot be limited to letters
exchanged between the parties to the suit. The only requirement is that the document
should relate to any matter in question and should be in possession of the party of the
suit, and therefore, he prays that in the facts and circumstances of the present case, the
present petition deserves to be allowed.
5.1 Per contra, learned advocate Mr. Aditya J. Pandya for the respondent No.2 has
strongly opposed the prayers made in the present petition and has supported the
judgment and order passed by the learned trial Court by contending that during the
lifetime, defendant No.1 has never raised any objection about non-receipt of sale
consideration and when the document executed between the parties i.e. registered sale
deed, which is in favour of respondent No.2, who has paid the substantial amount for
sale consideration, and therefore, that documents cannot be doubted by the present
petitioner. He has relied on the provisions of section 91 of the Indian Evidence Act, 1872,
which reads as under:-
"section 91 of the Indian Evidence Act:-
When the terms of a contract, or of a grant, or of any other disposition of property,
have been reduced to the form of a document, and in all cases in which any matter
is required by law to be reduced to the form of a document, no evidence shall be
given in proof of the terms of such contract, grant or other disposition of property,
or of such matter, except the document itself, or secondary evidence of its contents
in cases in which secondary evidence is admissible under the provisions
hereinbefore contained.
Exception 1.-- When a public officer is required by law to be appointed in writing,
and when it is shown that any particular person has acted as such officer, the
writing by which he is appointed need not be proved.
Exception 2. Wills admitted to probate in India may be proved by the probate."
5.2 He has submitted that when the plaintiffs have no reason to interfere or enquire the
genuineness of the validity of the sale transaction between defendant Nos.1 and 2, the
petitioners has no direct relation in the land, which is sold to the defendant No.2 by
defendant No.1. More particularly, defendant No.1 has never raised any doubt or
objection regarding the validity and genuineness of the sale transaction, and therefore,
he prays to dismiss the present petition with appropriate observation.
6.1 I have considered the rival contentions raised at the Bar. I have also considered the
material available on the record. While going through the pleadings of the parties, it
transpires that the suit, which is filed by the plaintiff by claiming the property in
question, is the ancestral property and defendant No.1, who happens to be father of the
plaintiffs, has sold the land in question to defendant No.2 by way of registered sale deed.
6.2 It is true that validity of the registered sale deed, which is registered before the Sub-
Registrar Officer, cannot be challenged in casual manner and more particularly, by the
third party, who has no direct interest with any of the parties, and in the present case, it
is not so that defendant No.1 is father of the plaintiffs. It is specific case of plaintiffs in
the suit that the suit property in question is an ancestral property and the said property
is sold by his father without obtaining consent of the plaintiffs. Moreover, judgments,
which are cited at the Bar, are also helpful and more particularly, the judgment of Co-
ordinate Bench of this Court in the case of M/s Kamalia Brothers (supra), which pertains
to the provisions of Order XI Rule 12 of the CPC and para 7 of that judgment is relevant
to the aforesaid said provisions, which reads as under:-
"7. The trial Court has also rejected the plaintiff 's application on the ground that the
documents in question are not between the plaintiff and the defendant, but they
are documents between the officials of the defendant. I have no doubt that this
observation of the trial Court is merely an obfuscation inasmuch as the
correspondence between the officers of the defendant can certainly be relied upon
by the plaintiff if according to the plaintiff the same may prove or support the
plaintiff 's case. It is obvious that the Order 11, Rule 12 does not in any way limit the
discovery of documents, in the case of letters to the letters exchanged only by the
parties to the suit. The requirements of this provision are limited only to the fact
that the documents should be or should have been in the possession or power of a
party to the suit, and that the same should relate to any matter in question in the
suit. Clearly the letters in question satisfy these requirements and, therefore, the
order for discovery thereof cannot be refused on the ground that the letters are not
directly between the parties to the suit."
6.3 Para 7 of the aforesaid decision is squarely applicable to the facts and circumstances
of the present case. It is held that the letters in question satisfy these requirements, and
therefore, the order for discovery thereof cannot be refused on the ground that the
letters are not directly between the parties to the suit.
6.4 Moreover, the provisions of Order XI Rule 12 and 14 of the Code of Civil Procedure
reads as under:
"Order XI :-
Rule 12. Application for discovery of documents:- 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.
Rule 14:- Production of documents. - It shall be lawful for the Court, at any time
during the pendency of any suit, to order the production by any party thereto,
upon oath, of such of the documents in his possession or power, relating to any
matter in question in such suit, as the Court shall think right; and the Court may
deal with such documents, when produced, in such manner as shall appear just."
6.5 The above reproduced Rules of Code of Civil Procedure, 1908 are also not refusing
such discovery and on the contrary such discovery can be asked at any stage of suit, if
genuine ground is made out by the parties. The plaintiffs are directly affected party and
if the production of such document is permitted, no prejudice will cause to the rights of
the respondents and on the contrary, this will help the case of the respondent No.2 to
establish that the property is purchased by him by valid and proper transaction after sale
consideration.
6.6 Therefore, I found that the present petition deserves to be allowed, which warrants
interference by this Court by exercising the powers under Article 227 of the Constitution
of India. The impugned order dated 04.09.2021 passed below Exh.58 in Special Civil Suit
No.172 of 2011 by the Additional Senior Civil Judge, Vadodara is hereby quashed and set
aside. Consequently, the application below Exh.58 in Special Civil Suit No.172 of 2012 is
hereby allowed.
7. It is expected that Special Civil Suit No.172 of 2011 shall be expedited and decided, as
expeditiously as possible, preferably on or before 22.03.2024, after giving sufficient
opportunity to the parties.
8. It is expected that the parties shall co-operate in the suit proceedings.
9. It is needless to say that the observations made in this order is to decide this
application and the aforesaid pending suit shall be decided on its own merits.
10. In view of disposal of main matter, Civil Application would not survive and the same
stands disposed of accordingly.
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