LALIT BELWAL Vs. JAGJEET SINGH ARORA

JUDGEMENT

(1.) Petitioner instituted civil suit No. 85 of 2006 for declaring a part of sale deed dated 10.09.2003 as null and void and further not to raise any construction on open space, sahan etc. on which rights have been given to the petitioner by previous owners. Respondents filed their written statement against which petitioner filed reapplication. At the stage of evidence, the petitioner submitted his affidavit. Thereafter, the respondents started cross-examination, which continued for several days. The case was posted on 14.03.2012 for further cross-examination of the petitioner. On that day the respondents moved an application being paper No. 81C under Order 11 Rule 12 of Code of Civil Procedure, 1908 hereinafter referred to as "the CPC") for issuing a direction to the petitioner to produce map of his house and also for producing permission letter of the sanctioned map. The petitioner filed objection against the same. The Additional Civil Judge (Junior Division) Haldwani vide order dated 28.03.2012 allowed the application of the respondents and directed the petitioner to produce map of his house as well as sanction order of the same. Against the said order present writ petition has been filed. Shri Sandeep Tiwari, Advocate appeared for the respondent and made statement before me that he does not want to file counter affidavit on behalf of the respondents and prayed that petition be heard without counter affidavit at the earliest. Shri Arvind Vashistha also submitted that he has no objection in case petition is heard. Therefore, the petition was heard in absence of counter affidavit. Since, the respondent has preferred not to file any counter affidavit, the factual submissions made in the writ petition are treated admitted to the respondent. Shri Arvind Vashistha, learned counsel for the petitioner submitted that suit was instituted by the petitioner for declaring a part of the sale deed dated 10.09.2003 as null and void and further for a prohibitory injunction against the respondent for not to raise any construction on open space, sahan etc. on which rights have been given by the previous owner. He submitted that in view of these facts map of petitioner's house and its sanction has no relevance. He also submitted that at this stage cross-examination is going on, which continued more than five days and each time after putting some question to the petitioner, adjournment is sought by the respondents and court granted adjournment fixing another date for further cross-examination. Such adjournment is sought only to harass the petitioner. He submitted that sanction of map is not at all relevant at this point of time. He also submitted that the respondents knew where the map is and they could have obtained the desired map from the office of concerned authority and application moved by them is not maintainable. The same has been moved only to delay the proceedings of the suit. He submitted that judgment passed by Court below is against the spirit of the Rule 12 of Order 11 of C.P.C. In support of his submission he relied upon the judgement, -M/s J.S. Construction Put. Ltd. vs. Damodar Rout, 1987 AIR(Ori) 207 , Jammuddin vs. Shri Ram Chits Pvt. Ltd., 2009 4 ALD 851 and judgment of Delhi High Court in FAO 206/2009 & CM Nos. 7554-7555/2009 Mr. M. Sivasamy vs. Vestergaard Frandsen A/S and Ors.

(2.) Shri Sandeep Tiwari, learned counsel for the respondents submitted that map of petitioner's house is very much relevant for the controversy involved in the suit as that will show the construction existing at the site. He submitted that the respondents tried to find out the map but that is not available with the Prescribed Authority and now has asked the same under Right to Information Act but he has not received the same till date. He submitted that document has to be in the possession and power of the person against whom discovery and production is sought. In support of this submission he relief on paragraph 7 of the judgment of Delhi High Court in FAO No. 206/2009 and CM No. 7554-7555/2009 Mr. M. Sivasamy vs. Vestergaard Frandsen A/S and Ors which is being reproduced below:

(3.) I have considered the application moved by the respondents under Order 11 Rule 12 of C.P.C., objection of the petitioner, order passed by the court below and also the arguments of learned counsel for the parties. Order 11 Rule 12 is (sic) hereunder:-