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IN THE COURT OF SH. SHAILENDER MALIK
LD.SCJ/RC,NW/DELHI
Suit No.08/13/08
Viredner Aggarwal Vs. Sagheer Ahmed & Ors.
ORDER
1. By this order I will dispose of application of plaintiff moved under Order 11 rule 2 & 14 of CPC with the prayer for production of documents i.e inspection report dated 03.10.2005 and letter dated 11.08.2005 as per the pleadings of defendant no.5 in WS.
2. It is stated in the application that in the present suit, defendant no.5 i.e Delhi Pollution Control Committee had filed its WS on 27.04.2006 and in para 5 of the WS on merits, it is pleaded that "after inspecting M/s Star Scissors, on 03.10.2005, department of industries has been requested by answering defendant (defendant no.5) to take necessary action against the industrial unit on 08.11.2005.
3. It is stated in the application that in the WS of defendant no.5 there is reference regarding two reports of inspection however, copy of the reports were not placed on record alongwith the WS of defendant no.5. It is thus prayed that defendant no.5 may be given directions to produce aforesaid two reports. It is however stated that plaintiff has obtained the inspection report dated 03.10.2005 under RTI Act 2005 and copy of the same has been placed on judicial record as Mark A. By the present application plaintiff also seeks reply to the interrogatory as : "please verify the inspection report dated 03.10.2005 which is already on the record with their original record and reply in yes or no".
4. It is further stated in the application that Hon'ble Supreme Court in Margadia Sequeria Fernandes & Ors. Vs Erasno Jack Sequeria, 2012 III AD (Supreme Court) 541 has held that interrogatory should be filed frequently to 2 detect the truth from the party. Therefore, present application has been moved.
5. Before deciding the above said application it would be appropriate to precisely mention the background of the matter. It was in year 2006 present suit was filed by plaintiff seeking decree of permanent and mandatory injunction against defendants Sagheer Ahmed, Zahir Ahmed (defendant no.1 and 2), MCD is defendant no.3, DDA is defendant no.4 and Delhi Pollution Control Committee is defendant no.5. It is stated that plaintiff being owner of house no.364, Hansa Puri Road, Tri Nagar, Delhi and defendant is tenant in respect of one shop measuring 7 x 9 feet in the portion of the above said property and defendant no.1 and 2 store liquid and non liquid chemical in the said tenanted premises without having any license under DMC Act moreover, it is alleged that defendant no.1 and 2 are running workshop of sharping scissors through stone grinder in the said tenanted shop for many years whereas, as per the policy and zonal plan of DDA, Tri Nagar, Delhi area is a residential colony and no industrial is permitted in this area. While alleging various other facts it is prayed that defendant no.1 and 2 be restrained from running any factory / workshop in the above said shop except by obtaining a license under DMC Act and it is prayed by mandatory injunction to direct defendant no.3 to close the said factory and also to direct to defendant no.5 to take appropriate action against defendants no.1 and 2 under the provisions of Air and Water (Prevention and Control of Pollution Act and under the Environment Act).
6. It appears from the record that defendants have filed the WS and on the basis of pleadings, interim injunction of the plaintiff was dismissed and issues were settled vide order dated 30.10.2009. Thereafter, matter remained pending for recording PE up till 19.08.2013. Thereafter, matter was fixed for recording DE and on behalf of defendant no.1 and 2, one witness D1D1 was examined, on behalf of DDA no evidence was led. In the course of trial counsel for MCD and Delhi Pollution Control Committee have stopped appearing.
37. It is at this stage, present application has been moved. Copy of the application was supplied to defendant no.1 and 2 and defendant no.4 and application has been opposed being moved belatedly only to prolonge the matter.
8. On the other hand Ld. Counsel for the plaintiff submits that in view of the judgment in Maria Margadia's Case (Supra) plaintiff can at any stage, move application for interrogatory by invoking the provision of Section 30 and Order 11 CPC. Ld. Counsel has also relied upon judgments of Hon'ble High Court of Delhi in A.K. Aggarwal vs Shanti Devi 1996 RLR 60, Jagson International vs Raghunandan Saran 2002 RLR (Note) 49.
9. Having heard the submissions at bar and having given thoughtful consideration to the prayer made in the present application, it is clear that plaintiff is seeking interrogatory and discovery of documents. Order 11 of Code of Civil Procedure allows interrogatories to be administered in writing by either party to suit with permission of court to opposite party. "Discovery" means to compel the opposite party to disclose what he has in his possession or power.
Reading the Order 11 CPC will make it clear that when after settlement of issues, a party to a suit may require information from his adversary as to facts or as to documents in possession or power of such party, relevant to the issue in the suit. Where information as to facts is required, the party is allowed to put a series of questions to his adversary. These questions are called interrogatories. The judge will go through the proposed questions and, if he considers them proper, will compel the other side to answer them on oath before trial. On the other hand, if information as to documents is required, a party may apply for an order compelling the other party to submit a list of relevant documents in his possession or power, and, in certain circumstances, for permission to inspect and take copies of those documents, which is called "discovery of documents".
Rule 2 of Order 11 of Code of Civil Procedure provides that on an 4 application for leave to deliver interrogatories, the particular interrogatories proposed to be delivered shall be submitted to the court. And that Court shall decide within seven days from the day of filing of the said application. In deciding upon such application, the court shall take into account any offer, which may be made by the party sought to be interrogated to deliver particulars, or to make admissions, or to produce documents relating to the mattes in question, or any of them, and leave shall be given as to such only of the interrogatories.
Interrogatories cannot be allowed to be delivered in case they are in the nature of making fishing inquiries from the adversary. Interrogatories must be confined to facts which are relevant to the matters in question in the suit. (Tarun Kumar And Ors. v. Ajay Kumar 61 (1996) DLT 174) Rules 12 to 14 of Order XI of the Code of Civil Procedure deal with the discovery of documents. All documents relating to the matters in issue in the possession or power of any adversary can be inspected by means of discovery of documents. Rule 12 of Order 11 deals with discovery of documents. It provides that 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 at that stage of the suit, or make such order, either generally or limited to certain classes documents, as may, in its discretion be thought fit. However discovery shall not be ordered when and court is of opinion that it is not necessary either for disposing fairly of the suit or for saving costs.
Provisions of Rule 12 is to be read with Rule 14 which provides that 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 nay 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. So under Order 11 Rule 14 CPC it is lawful for the Court to order the production of such of the documents in the possession 5 or power of a party as relate to any matter in question in the suit.
So it is evident that under Order XI Rule 12 of the Code, a Court is competent to direct the parties to litigation to make discovery, on oath, of the documents which are or which have been in its possession or power relating to any matter in question therein. In order to exercise discretionary power under order XI Rule 12 of the Code and before passing any order therein, it is incumbent upon the Court to consider the relevancy of the document in the light of the dispute or controversy between the parties. Not only that, the Court should also seriously apply its mind, at that stage, and satisfy as to whether the documents asked for or sought for or ordered to be discovered, are required for the purpose of discovery for the effective disposal of the issues in the suit.
10. Being guided by the above said legal proposition if we assess the facts of the present case, as noted above, matter is already pending since year 2006 and the present suit has been already identify as old case. It is also not disputed that present case remained pending for many dates, for recording plaintiff's evidence. It was possible for the plaintiff to summons officials from Delhi Pollution Control Committee for proving the report dated 03.10.2005 and letter dated 08.11.2005. It is even more important to note that plaintiff has stated in the present application that plaintiff has already obtained the said inspection report dated 03.10.2005 under RTI Act 2005. if plaintiff had already obtained the copy of said report then it was even more necessary for plaintiff to examine the witness from DPCC to prove that report. At this belated stage, present application has been moved. Ld. Counsel for the plaintiff has heavily relied upon the judgment in Maria Margadia's Case. No doubt the ratio laid down in the said landmark judgment is that court must keep on putting serious endeavors to find out the truth and for that purpose Section 30 CPC can be of held for ascertaining the truth. Therefore, it was observed in the said judgment that above said provision should be put in service frequently to find out the truth. Without disputing the ratio and the guidelines laid down in said judgment of Hon'ble Supreme Court I find that said judgment is not applicable in peculiar 6 facts and circumstances of the case because there is already documents available on the record by the admission of the plaintiff in the present application. In such situation it is not a case where any discovery of any document is required. Rather, document is very much available in judicial record and it was plaintiff's duty to prove it in accordance with law.
11. In this regard it is important to mention here that different provisions of CPC are for meant for enabling the court and litigants to decide the suit early. There is no provisions in CPC which can be interpreted in such manner so that such provision delays the process or trial of any matter. Court can not be expected to generate evidence for or against either party to the suit. Onus is always on parties to prove their respective version. Therefore, in the present case when report in question is always available with plaintiff then no question of discovery arises. Similarly when report has been obtained from concerned department under RTI Act then also there is no necessity for any interrogatory for confirming that report. Rather, report on the record was required to be proved as per the provisions of Indian Evidence Act.
12. Ld. counsel for the plaintiff has also relied upon two other judgment of Hon'ble High Court as mentioned above. However, those judgment are also on different factual and legal context. Therefore, for the reasons stated above application of the plaintiff stands dismissed.
13. Having so held it is needless to mention that plaintiff can lead evidence in rebuttal including to prove the report in question, if required subject to prior permission from this court.
Announced in opened court on
th
29 November 2013 (SHAILENDER MALIK)
SCJ/RC,NW/DELHI/29.11.13
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