Patna High Court
Parvej Alam vs Shahabuddin Miyan on 20 March, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.270 of 2022
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1. Parvej Alam Son of Late Mohammad Salim Resident of Village- Binod
Matihania, P.S.- Bishwmbharpur, District- Gopalganj.
2. Meraj Alam Son of Late Mohammad Salim Resident of Village- Binod
Matihania, P.S.- Bishwmbharpur, District- Gopalganj.
... ... Petitioner/s
Versus
1.1. Most. Zarina Khatun Wife of Late Shahabuddin Miyan, R/o - Vinod
Matihaniya, P.S. - Bishambharpur, Dist - Gopalganj.
1.2. Manan Alam S/o - Late Shabuddin Miyan, R/o - Vinod Matihaniya, P.S. -
Bishambharpur, Dist - Gopalganj.
1.3. Azaz Alam S/o - Late Shabuddin Miyan R/o - Vinod Matihaniya, P.S. -
Bishambharpur, Dist - Gopalganj.
1.4. Firoz Alam S/o Late Shabuddin Miyan, R/o - Vinod Matihaniya, P.S. -
Bishambharpur, Dist - Gopalganj.
1.5. Afshana Khatoon D/o Late Shabuddin Miyan, R/o - Vinod Matihaniya, P.S. -
Bishambharpur, Dist - Gopalganj.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Harendra Prasad, Advocate
For the Respondent/s : Mr. Pankaj Kumar Dubey, Advocate
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CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
ORAL JUDGMENT
Date : 20-03-2025
Heard the learned counsels for the parties and I intend
to dispose of the present petition at the stage of admission itself.
02. The petitioners are aggrieved by the order dated
23.02.2022
passed by the learned Sub Judge-I, Gopalganj in
Title suit No. 911 of 2017, whereby and whereunder the
application filed on behalf of plaintiffs/respondents under Order
11 Rule 12 of the Code of Civil Procedure, 1908 (for short 'the
Code') has been allowed.
Patna High Court C.Misc. No.270 of 2022 dt.20-03-2025
03. Learned counsel for the petitioners submits that
original plaintiff/respondent filed Title Suit No. 911 of 2017 for
partition of the suit property after declaration that the suit
property was the joint property of the parties purchased by their
common ancestor. During pendency of the title suit, on
21.08.2019, the original plaintiff/respondent filed a petition
under Order 11 Rule 12 of the Code for directing the
defendants/petitioners to produce some original document
before the learned trial court for proving the case by the
plaintiffs and the said application was allowed vide order dated
23.02.2022, which is under challenge before this Court.
04. Learned counsel for the petitioners further submits
that while passing the impugned order the learned trial court has
not appropriately considered and appreciated the fact that the
petitioners were not having the document. The
plaintiffs/respondents alleged that the suit property was
purchased by the father of original plaintiff in the name of father
of the defendants/petitioners, who was the own brother of the
plaintiff. The plaintiff claims the father of the
defendants/petitioners was having the custody of the document
of the land and after his death, the said document came into
possession of the defendants/petitioners, but the petitioners are
Patna High Court C.Misc. No.270 of 2022 dt.20-03-2025
not having any document. The learned trial court has also not
considered that the plaintiff cannot shift the burden of proving
his case upon the defendants/petitioners and he has filed the suit
without any basis. Thus, the learned counsel submits that the
impugned order is not sustainable and the same be set aside.
05. Learned counsel appearing on behalf of
plaintiffs/respondents submits that there is no infirmity in the
impugned order. Learned counsel further submits that the suit
property was purchased by the father of the original plaintiff-
Shabuddin Miyan, in the name of his elder son, namely Md.
Salim and all the documents was kept by his brother, Md. Salim,
who subsequently died and the documents came into possession
of the defendants, who are the sons of Md. Salim. The original
plaintiff was having ½ share in the suit property and a partition
had taken place in the year 1990, but subsequently, the
defendants/petitioners started creating disturbance in the
possession of the original plaintiff and he was forced to file suit
for declaration of his share as well as declaration that the suit
property was joint property purchased by their common
ancestor. In this background, the application was filed under
Order 11 Rule 12 of the Code. Learned counsel further submits
that it is necessary that the defendants/petitioners either produce
Patna High Court C.Misc. No.270 of 2022 dt.20-03-2025
the document or file an affidavit about not having the document
before the learned trial court. Considering all these facts and
circumstance, the learned trial court has passed the impugned
order, which is valid and legal and needs to be sustained.
06. I have given my thoughtful consideration to the
rival submission of the paries and perused the record.
07. Order 11 Rule 12 of the Code reads as under:
"12. Application for discovery of
documents.--Any party may, without filing any
affidavit, apply to the Court for an order
directing any other party to any suit to make
discovery on oaths, of the documents which are
or have been in his possession or power,
relating to any matter in question therein. On
the hearing of such application the Court may
either refuse or adjourn the same, if satisfied
that such discovery is not necessary, or not
necessary at that stage of the suit, or make
such order, either generally or limited to
certain classes of documents, as may, in its
discretion be thought fit: Provided that
discovery shall not be ordered when and so far
as the Court shall be of opinion that it is not
necessary either for disposing fairly of the suit
or for saving costs."
08. The aforesaid provision makes it clear that the
Patna High Court C.Misc. No.270 of 2022 dt.20-03-2025
learned trial court is supposed to record its satisfaction that such
discovery is necessary either for disposing fairly of the suit or for
saving costs. Merely vague assertion about existence of certain
documents in custody of the other party/defendants by the plaintiff
and the learned trial court passing orders on such vague
submission would not suffice. In any case, the impugned order is a
non-speaking order and the same could not be sustained as b are
perusal of the impugned order shows that the order has been
passed without any reason.
09. Further, the Hon'ble Supreme Court in the case
of Kranti Associates Private Limited & Anr. vs. Masood
Ahmed Khan & Ors. reported in (2010) 9 SCC 496, has held
that reasons in support of decisions must be cogent, clear and
succinct. The decision in Kranti Associates Private Limited
(supra) of the Hon'ble Supreme Court stresses upon the
importance of reasoned judicial orders and have discussed
elaborately why reasoning is the soul and heart of the justice.
Therefore, I have no hesitation in holding that the order of the
learned trial court is without recording the reasons in support of
conclusion arrived at and failure to record the reasons would
make the orders unsustainable. Not recording the reasons in fact
amounts to denial of justice whether it is by an administrative
authority, quasi judicial body or a judicial body. The aforesaid
Patna High Court C.Misc. No.270 of 2022 dt.20-03-2025
authorities could not pass orders without assigning reasons in
support of their conclusion more so if it is an order by a judicial
authority.
10. Having regard to the aforesaid facts and
circumstances, the impugned order dated 23.02.2022 passed by
the learned Sub Judge-I, Gopalganj in Title suit No. 911 of 2017
is set aside. The matter is remanded to the learned trial court for
passing a reasoned and speaking order afresh.
11. Accordingly, the present petition stands allowed.
(Arun Kumar Jha, J)
Ashish/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 22.03.2025
Transmission Date NA
