GOBINDA MOHUN ROY Vs. MAGNERAM BANGUR AND CO

JUDGEMENT

(1.) This rule arises with reference to two applications for discovery under Order 11, Rule 12, Civil P.C., which were filed by the plaintiff in connexion with Suit No. 402 of 1937. Both the applications were rejected by the learned Munsif. As regards the first application, the order of rejection is dated 11 September 1939, and is based on the ground that the list of documents upon which the parties relied had already been filed and that the application was of a vague and general character and should not be allowed at a late stage of the suit. The second order, dated 20 September 1939, is merely to the effect that it was too late to reconsider the matter. The application for discovery was therefore rejected. It appears that the plaintiff had filed two suits against the defendant namely Suits Nos. 402 of 1937 and 83 of 1938. These suits related to two separate plots of land, but the main contentions of the parties appear to have been the same in both the suits. The plaintiff's case was to the effect that the land in suit had belonged to a man named Abdul Hamid and that the plaintiff had purchased the suit land in execution of certain Civil Court decrees against Abdul Hamid's heirs. The defendant's case, on the other hand, was to the effect that the disputed property had originally belonged to Rahim Bux, the father of Abdul Hamid. His contention was that Rahim Bux's estate had been partitioned and that the defendant had purchased the disputed property from the Commissioner in the partition proceedings in connexion with Suit No. 1221 of 1916, which was instituted on the Original Side of this Court. Title Suit No. 402 of 1937 was filed in the Court of the First Munsif of Alipore on 14 December 1937, while Suit No. 83 of 1938 was filed on 27 April 1938.

(2.) We are not directly concerned in this case with the previous history of Suit No. 83 of 1938 except to this extent, that we find that, on 8 August 1939, an order was recorded by the learned District Judge of the 24-Parganas to the effect that this suit should be tried analogously with Title Suit No. 402 of 1937. In the latter suit the issues were framed as far back as 15 March 1938. On 23 March 1939, the defendant appears to have filed the documents upon which he intended to rely under the provisions of Order 13, Rule 1, Civil P.C., but the record shows that on the following day, these documents were taken away by the defendant. After the learned District Judge had ordered Suit No. 402 of 1937 to be tried analogously with Suit No. 83 of 1938 we find that, on 18 August 1939, the defendant filed the list of the documents on which he intended to rely in Suit No. 83 of 1938. On 28 August an additional written statement appears to have been filed by the defendant in Title Suit No. 402 of 1937 and, on 31 August, two additional issues were framed by the learned Munsif. These issues were in the following terms: Issue 9 : Did the suit land pass to the defendant by sale from the Commissioner of partition in Suit No. 1221 of 1916 of the Original Side, High Court? Issue 10 : Can the defendant claim priority of such sale, if any?

(3.) On the same day the learned Munsif recorded an order fixing 20 September 1939, for taking such further steps as might be necessary and in particular he directed the parties "to take all necessary steps including interrogatories, discovery, etc. preparatory to fixing the date for peremptory hearing." Thereafter two applications for discovery, dated 11 September and 20 September, were filed on behalf of the plaintiff and, as already stated, these applications were rejected. The learned advocate for the petitioner in this case contends that in rejecting these applications the learned Munsif failed to exercise a jurisdiction vested in him by law and acted illegally and with material irregularity. He contends that the provisions in the Civil Procedure Code relating to discovery and inspection and which are contained in Order 11 of the Code have been provided by the Legislature with the express object of enabling the parties to a suit to have knowledge of the documents relating to the matter in issue which may be in the power or possession of the other side before the suit comes on for trial in order that, by a proper observance of these provisions, the parties may not be taken by surprise, that costs and time may be saved and the matters in issue between the parties may be clarified. In my view, there is much force in this contention.