ASHOK KESHWANI Vs. GOPIRAM & OTHERS

JUDGEMENT

(1.) This writ petition has been filed by the petitioner-defendant challenging order dated 24.09.2014 passed by Civil and Metropolitan Magistrate(East), Jaipur Metropolitan (for short 'the Trial Court') whereby application filed by the petitioner under Order 16, Rule 6 CPC has been dismissed.

(2.) The plaintiffs-Respondent No.1 to 7 filed a suit for permanent injunction on the premise that Ghanshyam Vihar, Panchyawala, Sirsi Road, Jaipur is a residential scheme set up by late Shri Shyam Behari Shukla, Chairman of Sindhu Nagar Co-operative Housing Society. The said Ghanshyam Vihar Residential Scheme is situated in village Panchyawala Tehsil, District Jaipur on agriculture land of Khasra No. 78, measuring 4 bigha and 10 biswa; Khasra No. 79 measuring 4 bigha and 11 biswa, Khasra No. 75 measuring 5 bigha, Khasra No. 81 measuring 2 bigha and 10 biswa, Khasra No. 82 measuring 2 bigha and 16 biswa. Lachchu and Ganesh sons of Doola, plaintiff-Respondents No. 6 and 7 were the Khatedar-tenants of Khasra No. 78 and 79 and Chandra S/o. Parsa was the Khatedra-tenant of Khasra No. 75, 81 and 82, who expired on 03.02.2004 and their legal representatives are plaintiffs-Respondents No. 1 to 5. The plaintiffs-Respondents No. 6 and 7 sold the land of Khasra No. 78 and 79 by way of agreement to sale dated 20.12.1980 and supplementary agreement dated 15.10.1987 to Sindhu Nagar Co-operative Housing Society through Chairman Shyam Behari Shukla. As per Condition No. 6 of the agreement dated 20.12.1980, the plaintiffs were permitted to keep the land admeasuring 1 bigha and 5 biswa of Khasra No. 78 as per their will. Father of Plaintiff No. 1 to 5 agreed to sale his Khatedari land of Khasra No. 75, 81 and 82 vide agreement dated 14.12.1975 to Sindhu Nagar Co-operative Housing Society and according to condition No. 6, the seller was permitted to keep 1 bigha land of Khasra No. 75 and 5 bigha land of Khasra No. 82 according to his will and supplementary agreement to this effect was executed on 15.10.1987. Subsequently, the possession of the land was handed over. Thereafter, on 31.01.2005, the respondents came for taking unlawful possession of Plot No. 35, which was in power and possession of the plaintiffs and tried to cut the wire fencing made by the plaintiffs. Upon an opposition made by the plaintiffs, they went from there giving threatening to the plaintiffs, as such on 10.02.2005, the plaintiffs-respondents No. 1 to 7 filed the aforesaid suit. Summons were issued to the defendants who put in appearance and filed written statement denying the averments made in the suit. After framing of issues by the Trial Court, the petitioner- defendant filed an application under Order 16, Rule 6 CPC for summoning the entire proceeding of the scheme and payment and allotment proceedings; super impose map of the scheme, agreement etc. from the society as the original documents were in power and possession of the society. Contention was made that these documents are required to be summoned for effective decision of the suit. Only these documents will prove as to how much land was sold and payment of how much land was made. Prayer was made that office bearer of the society be summoned along with the documents in evidence. The Trial Court vide order dated 24.09.2014 dismissed the application filed by the petitioner-defendant. Hence, this writ petition has been filed by the petitioner.

(3.) Mr. S.L. Kumawat, learned counsel for the petitioner has submitted that the reasoning given by the Trial Court that all the documents were public documents and the petitioner was free to take certified copies thereof and produce the same before the Court is wholly erroneous and perverse. The documents, which are In possession of the society, cannot be said to be public documents. In any case, the petitioner had, during pendency of the suit, filed application to the office bearer of the society for supplying him the copy of entire proceedings took place of the scheme; payment and allotment proceedings; super impose map of the scheme; agreement etc. but the so society did not supply the documents to the petitioner. Since the society is run by a private person, therefore, all the aforesaid documents cannot be said to be public documents. It was only when the petitioner failed to procure the copy of those documents; he filed application under Order 16, Rule 6 CPC before the Trial Court. Provisions of Order 16, Rule 6 CPC envisages that any person may be summoned to produce a document, without bearing summoned to give evidence, and any person summoned merely to produce a document shall be deemed to have complied with the summons if he causes such documents to be produced instead of attending personally to produce the same. It was, therefore, mandatory requirement of law to summon the office bearer of the society along with the relevant documents, which was having material bearing on controversy involved in the case. It is argued that as per Section 114(2) of the Rajasthan Co-operative Societies Act, 2001, no officer of a co-operative society and no other officer in whose office the books of a co-operative society are deposited after liquidation shall, in any legal proceedings to which the society or the liquidator is not a party, be compelled to produce any of the society's books or documents the contents of which can be proved or to appear as a witness to prove the matters, transactions and accounts therein recorded.