The Kangra Cooperative Bank Ltd. vs Prem Singh Dogra & Ors.
2010 Latest Caselaw 74 Del

 *                     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      C.M. (Main) No.138 of 2008 & C.M. Appl. No.1442 of 2008

%                                                                              08.01.2010

         THE KANGRA COOPERATIVE BANK LTD.              ......Petitioner
                            Through: Mr. Suresh Chand, Advocate.

                                            Versus

         PREM SINGH DOGRA & ORS.                        ......Respondents
                             Through: Mr. V.N. Sharma, Advocate.

                                                           Date of Order: 8th January, 2010
         JUSTICE SHIV NARAYAN DHINGRA

1.       Whether reporters of local papers may be allowed to see the judgment?

2.       To be referred to the reporter or not?

3.       Whether judgment should be reported in Digest?

                                      JUDGMENT

1. By this petition under Article 227 of the Constitution of India, the petitioner has

assailed an order dated 18th December, 2007 whereby the learned trial court directed the

petitioner that the petitioner should furnish copy of all the documents as demanded by the

defendant and also file the same on the court file.

2. It is submitted by counsel for the petitioner that the order passed by the learned

trial court shows non-exercise of jurisdiction by the trial court. The trial court passed the

order without even discussing the relevancy of the documents and without considering as

to what was the suit and what was the nature of documents being sought. It is also stated

that the order of the trial court was perverse and the wholesome summoning of bank

record was going to jeopardize the entire function of bank. The trial court also did not

consider that third party's information could not be leaked to anybody without written

permission of the party concerned.

3. The brief facts relevant for the purpose of deciding this petition are that the bank

filed a suit against respondents claiming damages for defamation because the respondents

had circulated pamphlets and booklets defaming the bank and its management. In the

written statement filed by the defendants, the defendants denied being author of the

booklet and took the plea that the booklet did not contain signatures of any of the

defendants and no case was made out as the booklet lacks authenticity and genuineness.

It was categorically stated that defendants had no concern with publication of the booklet.

Thus, the issue which the trial court was supposed to decide in the matter was whether the

defamatory material was authored by the defendants or not and if the defamatory material

was authored by the defendants, whether it was published/circulated as alleged in the

plaint by the defendants and whether the so published material tarnished the reputation of

the plaintiff and the reputation of the plaintiff was lowered in the eyes of general public,

friends, associates, etc. The other issue that would have arisen was whether the

defendants were liable to pay damages to the plaintiff and if so, to what extent.

4. The defendants made an application under Section 151 CPC seeking plethora of

documents from the plaintiff which included proceedings in the Election held on

25th August, 2002, list of the members/shareholders of the bank, proceedings of the

General Body Meetings with signatures of members of shareholders, declaration of

financial position of elected members of Board of Directors, list of shareholders and their

relation/blood relations; Annual Report with agenda, minutes of meetings held on

6th October, 2002, etc. List contained 74 items and by this the defendant virtually asked

for entire record of the bank including loan record, list of defaulters, observation of

Reserve Bank of India for last ten years, details of Directors holdings for last ten years,

etc. In the list of documents, the defendants had not stated what was the relevancy of the

documents and what issues were sought to be proved.

5. I consider that before allowing any document to be produced by the plaintiff, the

learned trial court was supposed to apply mind on each and every document sought by the

defendants and to consider the relevancy of the document, keeping in view the claim of

the plaintiff and the defence of the defendants. Where the defendants' defence was that

they were not author of the booklet and had not published it, the question of summoning

any of the documents sought in the application did not arise. If the defendants had taken

the defence that they were the authors of the booklet and whatever was stated in the

booklet was correct and true and they wanted to show from the bank record that the

assertions in the booklet were truthful, then only the defendants could have summoned

only that bank record which they needed to prove the assertions made in the booklet and

not any other record. The trial court while deciding interim applications is supposed to

apply judicial mind and not to allow applications having such vital effect on the other

party in a casual manner by non-application of mind. Where the trial court decides

application without considering the relevant provisions of law, it acts without jurisdiction.

6. Order VIII Rule 1A sub-Rule 3 CPC provides that where the defendants relies

upon the document not in their possession, they have to file a list of documents and have

also to state in whose possession those documents are and what was the relevancy of

documents. In absence of showing relevancy of documents, the court cannot order

opposite party to file documents. The provisions for discovery of documents contained in

CPC are meant to do substantial justice and not to harass the parties or to prolong a case.

The tendency of calling unnecessary documents must be curbed and not encouraged. The

court has to act as a watchdog that the parties should not take undue advantage of the

procedural provisions of CPC to prolong the case.

7. In the present case, the court below allowed the application observing that the

plaintiff (petitioner herein) had not shown that these documents were irrelevant. There

was no obligation on the petitioner to show that these documents were irrelevant. In fact,

the obligation was on applicant to show that the documents were relevant and how the

documents would help in proving his case, namely, that he had not authored the booklet.

8. I find that the order of the trial court is without jurisdiction and without

application of mind. The petition is hereby allowed and the order of the trial court is set

aside.

SHIV NARAYAN DHINGRA J.

JANUARY 08, 2010 'AA'