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PRESIDENT SHRI CHATURBHUJ SHARMA SIKSHAN SANSTHAN & ORS. versus AWADH BIHARI TIWARI @ RAM BABU AND OTHERS

High Court of Judicature at Allahabad

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President Shri Chaturbhuj Sharma Sikshan Sansthan & Ors. v. Awadh Bihari Tiwari @ Ram Babu And Others - WRIT - C No. 13389 of 2006 [2006] RD-AH 5282 (6 March 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

A.F.R.

Court No. 23

Civil Misc. Writ Petition No. 13389 of 2006

President Shri Chaturbhuj Sharma Sikshan Sansthan

Mahavidyalay Samit Orai, District Jalaun & another             ..........Petitioners

Vs.

Awadh Bihari Tiwari @ Ram Babu & others                       ........Respondents

Hon'ble Umeshwar Pandey, J.

Heard learned counsel for the parties.

This petition challenges the order dated 6.5.2005 passed by the trial court and order dated 19.12.2005 passed by the revisional court. The respondent No. 1 filed a suit for declaration against the petitioners- defendants in which the plaintiff presented an application under Order XI, Rule 12 C.P.C. for discovery of certain documents. Initially the said application was dismissed vide order dated 4.4.2005 (Annexure-6) stating that the application was not supported with affidavit and the defendants petitioners had denied possession of those documents sought to be discovered. Thereafter, a second application stated to be under Section 151 C.P.C. was moved with the same prayer, which has been allowed by the impugned order. This application was supported with affidavit. The revisional court has dismissed the revision of the petitioners stating that the revisional court would not go into the factual matters and thus, the revision was not found having merits.

Learned counsel appearing for the petitioners has tried to emphasise that the earlier order rejecting the application of the respondent-plaintiff will operate as res judi cata  and has also cited the case law of Ali Khan Vs. Ram Prasad & another, 1981 AWC 17. The second argument of the learned counsel is that the present application, which has been allowed by the impugned order, is stated to be an application under Section 151 C.P.C. whereas it should be an application under Order XI, Rule 12 C.P.C. as specific provision for granting such prayer is provided under the Code. Therefore, if the application has been given the title of being a petition under Section 151 C.P.C. the same is not to be entertained in view of case law of N.I.M.H. & Neuro Sciences Vs. C. Parameshwara, 2005 (2) AWC 1865 (SC).

As regards the first point of argument raised in the present case, the reply, which has been given from the side of the respondents, is that the order, which was passed earlier in Annexure-6, was not an order passed on merits and the application was summarily rejected for want of supporting affidavit. The merits of the matter whether the documents sought to be discovered are possessed by the petitioners-defendants are not gone into by the trial court in the earlier order, therefore, the said order would not operate as res judicata.

I find force in the reply argument given from the side of respondents. Any order whether interlocutory or not, if has not been passed on merit, it will definitely not operate as res judicata. The aforesaid case law of Division Bench of this court in the present facts and circumstances would not be applicable. The application was summarily rejected for want of supporting affidavit though, the affidavit in support of such application is not required under the procedure. So-far-as the availability of those documents with the respondents defendants is concerned, the mere observation in the earlier order is that the defendants had denied possession of the same. This point is also not discussed on merit. The second order passed by the court below is a full-fledged order passed after discussing the entire aspects of the matter and in the present context any bar of res judicata would not be applicable for the purposes to challenge this order.

As regards the second point of argument that such application should not be allowed with a heading of Section 151 C.P.C., it also does not appear to be very sound. The mere mention of provision on the heading of the application will not render the application liable for rejection. On the contrary the prayer made in the application if found to be sound and covered under some other provision of the Code, it will not be treated as one made under Section 151 C.P.C. Such application should usually be considered in the light of its otherwise merits by the court. In the present case, the application with the prayer, appears to be pure and simple under the provision of Order XI, Rule 12 C.P.C. for discovery of document. It is definitely an order passed under that provision only and the application is not liable to be rejected summarily because it wrongly mentions Section 151 C.P.C. in its heading. The aforesaid case law of N.I.M.H. & Neuro Sciences (supra) is not applicable with the facts of this case. The trial court has given its serious thoughts to the prayer made in the application of the respondents plaintiffs and has found that the documents, which were sought to be discovered, would definitely be in possession of the petitioners, who are President and Secretary of the society and who alone represent the society. Therefore, if a direction has been given to them for presenting those documents, the said order cannot be said to be erroneous. The possession of the documents may be with the Treasurer but since the President and Secretary of the society represent the society itself, the direction of the court will be issued only to the President and Secretary and not to the Treasurer.

In the aforesaid view of the matter, I do not find any error whatsoever in the order of the court below and as such the petition having no force is hereby dismissed.

06.03.2006

gp/


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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