Bina Deegan Alias Bina Cunningham ... vs Saras Gopi Alias K. Saraswathi ...
2021 Latest Caselaw 2930 Bom

                                                                          (22) WP-2270-20.doc

BDP-SPS


  Bharat
  D.
  Pandit                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 Digitally signed
 by Bharat D.
 Pandit
 Date: 2021.02.23


                                        CIVIL APPELLATE JURISDICTION
 18:16:13 +0530




                                       WRIT PETITION NO. 2270 OF 2020


                    Bina Deegan alias Bina Cunningham
                    and alias Bina Gopi.                           ..... Petitioner.

                                        V/s

                    Saras Gopi alias K. Saraswathi Amma
                    and Anr.                                       ..... Respondents.

                    ------
                    Mr. Girish Godbole a/w Ameya Gokhale a/w Salonee Kulkarni i/b
                    Shardul Amarchand Mangaldas & Co. for the Petitioner.

                    Mr. Aditya Pimple a/w Mr. Ranjit Shetty a/w Priyanka Shetty a/w
                    Jonathan Jose i/b Argus Partners for Respondent No.1.

                    Mr. Phiroze Merchant i/b Kanga & Co. for Respondent No.2.
                    -----

                                        CORAM: NITIN W. SAMBRE, J.

                                         DATE:    FEBRUARY 15, 2021

                    P.C.:-

                    1]       In a suit for declaration being S.C. Suit No. 1233 of 2017, in

relation to immovable property, Petitioner/Plaintiff took out Chamber

Summons No. 721 of 2019 under the provisions of Order 11 Rule 12

of CPC, which came to be rejected on 23/10/2019. As such, this

(22) WP-2270-20.doc

Petition.

2] Mr. Godbole, learned Counsel for the Petitioner/Plaintiff while

inviting attention of this Court to the pleadings in S.C. Suit No. 1233

of 2017, particularly the prayer made therein, would urge that the

Court below has committed an error of law in rejecting the Chamber

Summons taken out, praying for issuance of order of discovery.

According to him, since the trial in the suit has not commenced and to

find out exact truth in view of rival contentions from the pleadings, it

is necessary to exercise powers under Order 11 Rule 12 of CPC,

thereby granting discovery. Further contention is, the Court is not

powerless to grant discovery at the stage where evidence of the

Plaintiff is being recorded. Relying on the judgment in the matters of

NTPC Ltd vs. Reliance Industries Ltd., reported in (2015) 1 Bom CR

612 and Bhagwani Devi Mohata Hospital vs. A.D.J. Rajgarh & Anr

reported in AIR 2005 Raj 274, he would urge that this is a fit case

wherein Court should have exercised discretion vested in it. Further

contention of Mr. Godbole is, Court erred in recording a reason that

the stage of discovery is over and hence the application taken out for

discovery is not maintainable.

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3] Per contra, learned Counsel for Respondent No.1/Defendant

No.1 would urge that the order impugned is just and proper as the

Court has recorded correct reasons in support of prayer for rejection of

the Chamber Summons. It is further claimed that the Petitioner is

indulging in roving inquiry so as to collect evidence. Reply given to

Chamber Summons that too on affidavit dealing with documents on

which reliance is sought, is relied upon by learned Counsel for the

Respondent No.1/Defendant No.1 for pursuing prayer for rejection of

the Petition.

4] It is further claimed by the Respondent No.1/Defendant No.1

that the documents referred in clauses (b),(d),(h) and (i) are not in

possession of Respondent No.1/Defendant No.1 and they are in

possession of brother of the Petitioner/Plaintiff i.e. son of the

Respondent No.1.

5] The contentions of the Petitioner/Plaintiff are resisted by the

Respondent No.1/Defendant No.1 on affidavit and as such it is

claimed that the object of moving the Chamber Summons is to delay

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the proceedings.

6] I have considered rival submissions in the light of pleadings in

the plaint and also claim made in the Chamber Summons.

7] It is required to be noted that Respondent No.1/Defendant No.1

has given inspection of one document to the Petitioner/Plaintiff which

is claimed to be in possession of Respondent No.1/Defendant No.1.

8] The provisions of Order 11 Rule 12 which deal with discovery

and inspection, same empowers a party to a suit to pray for directions

to other party to the suit to make discovery on oath of the documents

which are or have been in his possession or power. It is also necessary

for the Court to satisfy itself that document should be relating to any

matter in question in the suit. Proviso to Order 11 Rule 12

contemplates that the Court may or may not order discovery, if it is of

the opinion that same are not necessary for disposing of the suit or for

saving costs. Power under Order 11 Rule 14 i.e. for production of

documents, precedes with the procedure contemplated under Order 11

Rule 12.

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9] It is also required to be noted that such documents are not

required to be used with ulterior motive for causing roving inquiry. As

such, duty is cast upon the Court to satisfy itself whether such

documents are relevant for the purpose of disposing the suit and not

for fishing out the information. If we consider nature of documents of

which discovery is sought, it is noted that communication between

Respondent No.1/Defendant No.1 with her son and such other

documents, such as Will etc are sought to be discovered under the

Chamber Summons.

10] As stated earlier, Respondent No.1/Defendant No.1 has already

granted inspection of one of the documents whereas as far as other

documents are concerned which are at Serial Nos. 5(b), (d), (h) and

(i) are informed to be in possession of her son, who under the Power

of Attorney was authorized to act on behalf of Respondent

No.1/Defendant No.1 to pay maintenance charges to Defendant No.2,

to collect rent accruing from the suit flat and was also authorized to

sign the Bank Accounts and Leave and License Agreement.

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11] As far as document at 5(h) is concerned, description of the same

and explanation given by Respondent No.1/Defendant No.1 has

rightly prevailed before the Court below not to exercise powers for

granting discovery.

12] In the aforesaid backdrop, contention raised by Mr. Godbole that

reasons given by the court below are incorrect in rejecting the

Chamber Summons and that being so order impugned is liable to be

quashed and set aside, is liable to be rejected.

13] It appears that the Plaintiff is required to establish her case by

proving issues which are framed in the suit. For the said purpose,

Petitioner/Plaintiff appears to be trying to go into roving inquiry so as

to fish out the information which may or may not be relevant for

deciding the issue involved in the suit.

14] In the aforesaid backdrop, refusal to exercise the discretion by

the Court below while rejecting the Chamber Summons cannot be

faulted with. Reliance placed by the learned Counsel for the Petitioner

on the judgments in the matters of NTPC Ltd and Bhagwani Devi

(22) WP-2270-20.doc

Mohata Hospital cited supra cannot help the Petitioner in the aforesaid

backdrop. That being so, no case is made out for interference.

Petition fails and same stands dismissed.

( NITIN W. SAMBRE, J. )