1. Petitioner/plaintiff has filed the present petition being aggrieved by the order dated 21.9.2016 by which his application under Order 11 rule 12 CPC has been rejected.

2. Petitioner/plaintiff filed a suit for declaration and permanent injunction against his own brothers. In para-5 of the plaint he has pleaded that there was a partition between the plaintiff, defendant No.1 and late Vishuprasad forty years back in presence of the witnesses and by virtue of the said partition all the three brothers have mutually divided the property and started residing in it.

3. During the pendency of the plaint, plaintiff filed an application under Order 11 rule 12 CPC seeking direction to the defendants to produce the partition deed. Defendants filed reply to the said application in which they have specifically denied that they are not in possession of any partition deed. Learned Court below has rejected the application on the ground that when the document is not in possession, therefore, its discovery cannot be ordered and even otherwise plaintiff is required to prove his case, hence the present writ petition before this Court.

4. Shri A. K. Shrivastava, learned counsel for the petitioner/plaintiff submits that the Court below has wrongly rejected the application and under the provisions of Order 11 rules 12 and 13 CPC defendant is required to say on oath about the documents demanded by the plaintiff. Since the defendant has not filed any affidavit, therefore, the impugned order is liable to be set aside.

5. Per contra, Shri Rishi Shrivastava, learned counsel for the respondents submits that learned trial Court has rightly rejected the application which was beyond the purview of provisions of Order 11 rule 12 CPC.

6. I have heard learned counsel for the parties.

7. Under Order 11 rule 12 CPC any party without filing any affidavit can apply to the Court for an order directing other party in the suit to make discovery on oath all the documents which are found in their possession. The basic requirement of this rule 12 is that the document must exist and must be in possession of the other party. On hearing of such application the Court may either refuse or adjourn that if discovery is not necessary at that stage. If order is passed under rule 12 for discovery of the document by the other party then under rule 13 the other party is required to file an affidavit or object to produce the said document. Order 11 rule 13 is reproduced below for ready reference.

XI Discovery and inspection.

1. xxx xxx xxx

2. xxx xxx xxx

13. Affidavit of documents- The affidavit to be made by a party against whom such order as is mentioned in the last preceding rule has been made, shall specify which (if any) of the documents therein mentioned he objects to produce, and it shall be in form No.5 in Appendix C, with such variations as circumstances may require.

8. In the present case the defendant has specifically stated that the said document is not in their possession and especially that the document does not exist. The defendant has also denied that there was no partition between them.

9. In the plaint also the plaintiff in para-4 has simply stated that the partition took place between the brothers 40 years back. He has not stated that any document was executed regarding partition, hence there could be an oral partition between them. The application filed under Order 11 rule 12 CPC is also very vague in which no details of the partition deed has been given. In such circumstances, the Court is not bound to direct the defendants to produce the partition deed. Firstly the plaintiff is required to establish that there was any partition between the plaintiff and defendants and a deed was executed. When the very existence of the document and its execution is in dispute the provisions of Order 11 rule 12 CPC would not apply. The learned trial Court has not committed any error of law while rejecting the application. The plaintiff is required to establish his case