Production of Documents – Application moved by asking the same documents which he had refused to respondents more than 4 years back in this same suit – Application allowed with heavy costs of Rs.40,000/-

Mr. Amol Rattan Singh, J. (Oral) - By this petition the petitioner challenges the order of the learned trial Court dated 15.10.2018 (Annexure P-8), by which the application of the petitioner, (defendant in the suit before the trial Court), seeking that the said Court ‘withdraw its order dated 13.2.2015’, has been dismissed.

The order dated 13.2.2015 is reproduced in the impugned order itself, a perusal of which (i.e. the order dated 13.2.2015) shows that vide the said order, the application filed by the respondent herein (plaintiff in the suit) under Order 11 Rules 14 and 15 CPC, seeking a direction to the defendant (present petitioner) to produce the agreement of sale dated 3.9.2009, agreement of lease dated 29.9.2011 and an alleged writing qua the purchase of 1/3rd share of the suit property, (as was stated in paragraph 3 of the preliminary objections filed by the present petitioner), was dismissed, i.e. the application of the plaintiff seeking that the present petitioner defendant produce the aforesaid documents, was dismissed.

The reasoning given by the learned trial Court in the order dated 13.2.2015 was that the present petitioner-defendant had taken a specific stand in his reply that he was not in possession of the agreement of sale dated 3.9.2009 or the agreement of lease dated 29.9.2011, with the notarized copy of the writing dated 11.8.2013 already on file, a copy of which had been supplied to the plaintiff. Thus the reasoning given by the learned trial Court was that with the petitioner-defendant having taken a stand that he did not have two of the three documents sought by the plaintiff, he could not be directed to place them on record, but he (the present petitioner-defendant) too was barred from placing them on record without the permission of the Court, with it further stated in the order that if he did, an adverse inference would be taken against him. Thus, it is that part of the order dated 13.2.2015 that the petitioner was seeking withdrawal of, vide the application that was dismissed on 15.10.2018, i.e. the impugned order.

2. As already noticed in the last order passed by this Court, by which notice of motion was issued, learned counsel for the petitioner submits that as a matter of fact what is recorded by the learned trial Court to the effect that the petitioner-defendant has stated in his reply that he was not in possession of the documents dated 3.9.2009 and 29.9.2011, is factually incorrect, because in his reply to the application filed by the respondent plaintiff at that stage (copy of the reply being Annexure P-5 with the present petition and the copy of the application under Order 11 Rules 14 and 15 CPC being Annexure P-4), he had nowhere stated that he did not have the copies of the said documents.

3. A perusal of Annexure P-5 shows that indeed he had not stated that he did not have the copies of the documents, but had stated as follows in the preliminary objections:-

Preliminary Objections:-

1. That the application is not maintainable in its present form.

2. That the application is mala fide and same has been filed to delay the proceedings of the case. Kesar Singh American and Jasbir singh are the real brothers of plaintiff Tarlochan Singh, therefore, the plaintiff can get the copies of the same from his real brothers. Notarized copy of writing dated 11.08.2013 is already on the file.”

4. Thus his stand actually was that the documents being with the brothers of the plaintiff (respondent herein), he could obtain a copy from them, with a notarized copy of the document dated 11.8.2013 already being on record.

(Even in the very short reply on merits, only the preliminary objections have been reiterated).

5. As also recorded in the previous order, learned counsel for the petitioner had submitted that the respondent-plaintiff would not be prejudiced by production of the said documents, because once they were being produced at the first instance at the time that the petitioner-defendant had sough