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Calcutta High Court
M. M. DUTT AND D. C. CHAKRAVORTI, JJ.
Food Corporation of India - Appellant
Versus
Birendra Nath Dhar - Respondents
C. R. No. 1220 of 1977
Decided On : 28 February 1978
CIVIL PROCEDURE CODE - ORDER 11, RULE 18(2) - INSPECTION OF DOCUMENTS - DOCUMENTS NOT REFERRED TO IN PLEADINGS, PARTICULARS OR AFFIDAVITS - POWER OF COURT TO DIRECT PRODUCTION - REVIEW OF ORDER - SECTION 151 - IRREGULARITY - NO PREJUDICE - ORDER SUSTAINED.
Fact of the Case:
The plaintiff, a transport contractor, filed a suit against the defendant, the Food Corporation of India, for payment of a balance sum of Rs. 96,880.34 for carrying foodstuffs by boat to different places. The defendant claimed that the plaintiff was liable to indemnify it for the sum of Rs. 1,03,491.35 on account of the loss suffered by it for the negligence of the plaintiff.
Finding of the Court:
The court held that the impugned order of the learned Subordinate Judge would not stand in the way of the petitioner to show the alleged falsity of the investigation report which has been directed to be produced. Needless to say, that the report is to be proved in accordance with law.
Issues: 1. Whether the application under Section 115 of the Civil Procedure Code, as amended by the Civil Procedure Code (Amendment) Act, 1976, is maintainable? 2. Whether the impugned order is an order as contemplated by Clause (a) or Clause (b) of the proviso to Section 115 of the Civil Procedure Code? 3. Whether the learned Subordinate Judge was justified in directing the petitioner to produce the said documents for inspection by the opposite party on his application under Section 151 of the Civil Procedure Code?
Ratio Decidendi: 1. The court held that the application under Section 115 of the Civil Procedure Code, as amended by the Civil Procedure Code (Amendment) Act, 1976, is maintainable. The court relied on the explanation to the amended Section 115 of the Code, which provides that the expression "any case which has been decided" includes any order made, or any order deciding an issue, in the course of the suit or other proceeding. 2. The court held that the impugned order is an order as contemplated by Clause (b) of the proviso to Section 115 of the Civil Procedure Code. The court held that if the order is allowed to stand, it would cause an irreparable injury to the petitioner and, as such, it satisfies the provision of Clause (b) of the proviso. 3. The court held that the learned Subordinate Judge was justified in directing the petitioner to produce the said documents for inspection by the opposite party on his application under Section 151 of the Civil Procedure Code. The court held that the documents which have been called for from the petitioner at the instance of the opposite party are in the possession of the petitioner and that the learned Subordinate Judge seems to be of the opinion that those documents will be necessary for disposing the suit fairly.
Final Decision: The court dismissed the revision petition and held that the impugned order of the learned Subordinate Judge would not stand in the way of the petitioner to show the alleged falsity of the investigation report which has been directed to be produced.
M.M. DUTT, J. :- This Rule is directed against order No. 57 dated Jan. 13, 1977 of the Subordinate Judge, 1st Court, Alipore, directing the defendant-petitioner, the Food Corporation of India, to produce certain documents for the inspection of the plaintiff-opposite party.
2. The suit out of which this Rule arises has been instituted by the opposite party, praying for a decree for Rs. 96,880.34 with interest at 12% per annum. The case of the opposite party is that he was appointed by the petitioner as a transport contractor to carry foodstuffs by boat to different places within the district of 24-Par-ganas and the neighbouring districts of West Bengal, from the railway sidings to food depots. According to the movement orders given by the authorities of the Food Corporation of India, goods were being carried by the opposite party from one place to another and bills were being handed over to the representatives concerned. They were accepted for payment after verification. It is alleged that after final adjustment of the running account as on July 12, 1971, the petitioner is liable to pay a balance sum of Rs. 96,880.34. As the petitioner had failed to make the payment, the opposite party filed the suit.
3. The plaint was amended by the order of the learned Subordinate Judge on Sept. 2, 1974 and certain statements in para. 2 (a) were inserted. Para. 2 (a) is as follows:
"Regarding the belated claim of the defendant in respect of the sinking of the boat with load as alleged the plaintiff claims that it was an act of God which could not be prevented in spite of the due care and diligence on the part of the plaintiff. As a matter of fact the defendant was satisfied that the said accident was due to an act of God as will be found inter alia from the letter of the defendant addressed to the District Manager (South) with copy sent to the plaintiff being No. G/9 (4)/69/RC/1202 D/-22-5-70. In the circumstances the defendant is not entitled to deduct any sum from the amount of the bills already submitted to the plaintiff on any account whatsoever."
4. The defence of the petitioner is Inter alia that on Aug. 8, 1969, the District Manager, Calcutta (South) entrusted to the opposite party a consignment of rice for carrying the same to Baxirhat. The goods were being carried by the opposite party on five boats. On August 26, 1969 one of the boats was totally damaged and sank into the Tollys Nullah, due to the negligence of the opposite party, in consequence whereof Bihar Boiled Rice weighing 29192 Kgs. was damaged.
As per Cl. (11) of the agreement a penal rate was imposed for the purpose of recovering the damages and demand notices were duly served on the opposite party for Rs. 1,03,491.35, but the opposite party did not pay the amount as demanded, and to defeat that claim the opposite party has filed the suit without referring to the sinking of the boat and the damage caused to the petitioner. It is contended that the opposite party is not entitled to any amount whatsoever and the suit is a misconceived one.
5. On August 24, 1975 the opposite party filed an application under O. 11, R. 18 (2) of the Civil P. C. praying for a direction on the petitioner to produce before the Court the following documents:
"(1) Letter No. G/9 (4)-2/69/RC. 852 dated 11th April, 1970 from the Deputy Regional Manager (Movement), Food Corporation of India to the District Manager, Food Corporation of India, Calcutta (South).
(2) Report of the Investigation Officer, Sri B. K. Ganguly submitted under his letter No. 2868/A/12/6915 dated 7th Oct., 1969 to the District Manager, Food Corporation of India, Calcutta (South).
(3) Letter No. 3452/F-25(13)/8/69 D/-7-10-1969 from the District Manager, Food Corporation of India, Calcutta (South) to the Deputy Regional Manager (Movement), Food Corporation of India."
The learned Subordinate Judge by his order No. 39 dated Nov. 17, 1975 allowed the said application and directed the petitioner to produce the said documents. It appea
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