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IN THE HIGH COURT OF ORISSA
K.C. Jagadeb Roy, J.
DOLAGOVINDA PRADHAN AND ANOTHER AND BASANTA KUMAR BISWAL - APPELLANT
Versus
BHARTRUHARI MAHATAB - RESPONDENT
Civil Rev. Nos. 39, 40 and 46 of 1990
Decided On : 08-03-1991
PROBATE - DISCOVERY AND PRODUCTION OF DOCUMENTS - RELEVANCE - INDIAN SUCCESSION ACT, 1925 - SECTIONS 235, 276, 283(1)(C) - ORDER 11, RULES 12 AND 14, ORDER 16, RULE 5, RULE 7 - CPC - SECTIONS 130, 131 - INDIAN EVIDENCE ACT, 1872.
Fact of the Case:
The petitioner, Dolagovinda Pradhan, filed an application under Order 11, Rules 12 and 14 read with Section 151 of the CPC for discovery and production of documents, and another application under Order 16, Rule 5 read with Section 151, CPC calling for documents in a probate proceeding. The trial court allowed the petition partly and directed the production of two documents, but refused to direct the production of the rest of the documents. The petitioner filed a civil revision challenging the order.
Finding of the Court:
The court held that the trial court was justified in refusing the prayer of the petitioner in directing the opp. party Bhartruhari Mahatab to produce the said documents namely items Nos. 1, 3, 4, 5, 7, 8, 9 and 10 in Court. The court also held that the trial court was correct in rejecting the application for analogous hearing of the suits.
Issues: 1. Whether the trial court was justified in refusing the prayer of the petitioner in directing the opp. party Bhartruhari Mahatab to produce the said documents namely items Nos. 1, 3, 4, 5, 7, 8, 9 and 10 in Court? 2. Whether the trial court was correct in rejecting the application for analogous hearing of the suits?
Ratio Decidendi: 1. The court held that the trial court was justified in refusing the prayer of the petitioner in directing the opp. party Bhartruhari Mahatab to produce the said documents namely items Nos. 1, 3, 4, 5, 7, 8, 9 and 10 in Court because: (a) Prajatantra Prachar Samiti, the owner of the documents, was not a party to the suit. (b) Bhartruhari Mahatab, the petitioner in the probate case, did not possess the documents in his individual capacity. (c) Even if Bhartruhari Mahatab possessed the documents as a trustee or agent of the Prajatantra Prachar Samiti, he could not be compelled to produce them under Section 131(1) of the Indian Evidence Act, 1872. (d) The documents did not relate to the matter in question in the suit or throw any light upon the case. 2. The court held that the trial court was correct in rejecting the application for analogous hearing of the suits because the parties in the suits were different and the prayers sought for in the two suits were also different.
Final Decision: The court dismissed the civil revisions.
JUDGMENT :
K.C. Jagadeb Roy, J. - The Civil Revision Nos. 34, 40 and 46 of 1990 arise out of the common order dated 9-1-1990 passed in Original Suit No 48 of 1989 in the Court of the Subordinate Judge, First Court, Cuttack disposing of applications filed in the said suit. The said three applications are as follows:
(A) A petition under Order 11, Rules 12 and 14 read with Section 151 of the CPC filed by the petitioner for discovery and production of documents as per the list given in Annexure-X to the Civil Revision No. 39 of 1990 which is the same as Annexure-A to the petition u/s 276 of the Indian Succession Act.
(B) A petition under Order 16, Rule 5 read with Section 151, CPC calling for documents, the list of which is given in Annexure-Y of the Civil Revision No. 39 of 1990.
(C) The third application was filed for analogous hearing of Original Suit No. 48 of 1989 with Original Suit No. 831 of 1988, filed by the petitioner in Civil Revision. No. 46 of 1990 namely Basanta Kumar Biswal.
2. The short facts relating to the suit in question are stated below :
Dr. Harekrushna Mahatab died on 2-1-1987 leaving behind a Will in favour of his son Bhartruhari Mahatab, opp. party in all the revisions. By his Will he bequeathed all his properties wherever situate without specifically mentioning them in the Will. There was no specific reference to any particular item of the property in the Will. On his death the legatee namely Bhartruhari Mahatab filed an application u/s 276 of the Indian Succession Act for grant of probate in his favour which was registered as Misc. Case No. 14/35 of 1987. Since there was objection to the probation of the Will, the Misc. Case was subsequently registered as Original Suit No. 48 of 1989 in the Court of the Subordinate Judge, First Court, Cuttack. Dolagovinda Pradhan, the petitioner No. 1 in Civil Revision No. 39 of 1990 and Civil Revision No. 40 of 1990 was one of the objectors to the grant of letter of administration in respect of one of the items of the property situated in Cuttack Town claiming that the same did not belong to the testator and was rejected by the Subordinate Judge by order dated 8-3- 1989 in Misc. Case No. 14/35 of 1987 against which order Dolagovinda Pradhan preferred a civil revision bearing No. 303 of 1989 in this Court The Civil Revision No 303 of 1989 was heard by Hon'ble Mr. Justice S. C, Mohapatra and by his order dated 7-4-1989 reported in 68 (1989) C.L.T. 316 his Lordship held thus :
"xx xx Judgment in a probate proceeding is a judgment in tern. Accordingly, any person who has appeared can see the proceeding. Seeing the proceeding would include raising objection and for that purpose cross-examining the witnesses also. He. can also examine witnesses. In this case, petitioner wanted to contest the grant of letters of administration in respect of one item of the property situated at Cuttack claiming that the same does not belong to the testator." His Lordship also held thus:
"On payment of the costs, he shall be permitted to fife Ms objection whereupon, issues shall be settled and the same shall be disposed of as a suit."
This Court also directed that the proceeding shall be concluded at an early date preferably by end of November, 1989. After conclusion of the civil revision in this Court, Issues were framed in Original Suit No. 48 of. 1989. One of the said Issues reads as follows :
"was the properties in item No. IV of the 'A' schedule (immovable) the personal property of Dr. M. K. Mahatab at the lime of his, death or the same belonged to 'Prajatantra Prachar Samiti"?
Because the matter was tried as a suit and this issue was framed along with other Issues, the petitioner felt it necessary to file 2. applications one under Order 11, Rules 12 and 14 read with Section 151, CPC for discovery and production of documents and the another under Order If. Rule 5 read with Section 151, CPC for calling for the documents as per the list. Besides another application, as already stated, was filed for ana
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