GOPAL BUX RAI Vs. SYED MAHAMOOD

JUDGEMENT

(1.) This application presented by defendant 1 in a title suit arises out of a petition in a pending case which by an interlocutory order the Court below has refused. The defendant petitioner who has not yet filed his written statement in the suit prayed the Court to direct the plaintiff to make discovery on oath of documents under four items without which, it was suggested, this defendant was unable to plead to the allegations in the plaint. It is not clear whether this I application was meant to be under Order 11, Rule 15 or under Order 11, Rule 12. In the application in this Court, however, it is referred to as an application under Order 11, Rule 15. In fact when the four items of documents are described, we shall see that the application may be said to fall partly under one and partly under the other of these rules. Item 1 relates to any documents in the possession or power of the plaintiff regarding the alleged agreement dated 26 August 1925 between Babu Gopal Bux Rai and Syed Jamal Hussain and Maulvi Muhammad Hameed. This is a document referred to specifically in para. 7 of the plaint.

(2.) The next is, documents regarding the payment or satisfaction of the dues of Syed Jamal Hussain and Moulvi Muhammad Hameed and cancellation of the above agreement. As to that, the plaint is not quite clear whether such an acknowledgment was in the form of a separate document; but so far as these two items are concerned, it can be said without unduly straining language that they come within Order 11, Rule 15. Under this rule every party to a suit is entitled at any time to give notice to any other party in whose pleadings or affidavits reference is made to any document to produce such document for the inspection of the party giving such notice. The opposite party if he does not comply with such a notice may by order of the Court be precluded from using such document in evidence in the suit. So far as these two items are concerned, the plaintiff has answered that he has no such documents in his possession or under his control except, as regards item 2, what appears in the lease in the plaintiff's favour executed by the defendant. So far as these two documents were concerned, nothing substantial could be urged in this revision except that the plaintiff ought to have supported his denial by an affidavit. That argument itself seems to be based on some confusion, as if the discovery of these documents had been sought under Order 11, Rule 12. I do not think it necessary to say any more about this part of the case except that nothing is shown calling for our interference.

(3.) Then the defendant calls for discovery on oath of documents regarding payment of Rs. 25,000 or of Rs. 10,000 or of any sum of money to Babu Gopal Bux Rai on or about 8 September 1926. The words discovery on oath suggest that the petitioner was thinking of Order 11, Rule 12; but as I have already said, the application to this Court refers to Order 11, Rule 15. Item 4 is, any documents in the plaintiff's possession regarding the spending of Rs. 50,000 alleged to have been spent in prosecuting the title suit by which the estate was recovered for the plaintiff and defendant 1.