Monday, 27 April 2020

Whether court can refuse to order production of document by applying test of comparative hardship between parties?

The Court, therefore, is clearly empowered and it shall be lawful for it to order the production, by any party to the suit, such documents in his possession or power relate to any matter in question in the suit provided the Court shall think right that the production of the documents are necessary to decide the matter in question. The Court also has been given power to deal with the documents when produced in such manner as shall appear just. Therefore, the power to order production of documents is coupled with discretion to examine the expediency, justness and the relevancy of the documents to the matter in question. These are relevant considerations which the Court shall have to advert to and weigh before deciding to summoning the documents in possession of the party to the election petition.
8. Without applying any of these tests, the court below allowed the respondent's application holding that refusal of application would otherwise cause a very valuable piece of evidence in favour of the respondent to be shut out. The objection of the petitioner that passport is in his current use and parting of it would result in putting an end to his stay in Abu Dhabi was not accepted by the court below as if it did not merit any consideration under law. It is a common knowledge that a resident will not be permitted to stay in a foreign country unless he holds original passport in his possession since its production could be insisted by the authorities whenever necessary. Therefore the order of the court for production of the original for comparison by a handwriting expert would only deprive petitioner's right to stay abroad. However, the position would have been different had the direction of the court been limited to production of the passport solely for the inspection of the respondent.

9. The court below while taking care of the respondent's concern and interest in the suit, however, failed to consider the hardship exposed to the petitioner while ordering production of original passport. The extent or degree of comparative hardship likely to be suffered by the petitioner in this respect did not engage the attention of the court below. The test of comparative hardship between parties is also one of the tests to be applied by the courts in deserving cases of this nature when parties to suit apply for production of document invoking Order XI Rule 14 of the Code.

10. Order XI Rule 14 of the Code does not attach to a party an absolute right to insist for production of a document in the possession of the adverse party in support of proof of his case. The right of the applicant is liable to be determined by the court in the light of the test of expediency, justness and relevancy as held by the Hon'ble Supreme Court in the aforesaid decision. Any direction to produce the original passport of the petitioner in court affecting his right to stay abroad will only place him comparably in great hardship than the respondent who relies on the document and seeks to prove his case. Applying the test in Sasanagouda's case, I am satisfied that the impugned order dated 5.10.2017 does not accord with the interest of expediency or justness and therefore it is liable to be set aside as being illegal.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP (C) No. 492 of 2018

Decided On: 05.02.2019

Thundiyil Abdurahiman  Vs.  Asharaf Kalapeedikayil

Hon'ble Judges/Coram:
T.V. Anilkumar, J.


Citation: AIR 2020 (NOC) 208 Kerala


1. The defendant in O.S. No. 16/2016 on the file of Munsiff Court, Nadapuram challenges in this original petition two orders passed against him by the learned Munsiff on I.A. No. 511/2017 on 5.10.2017 and 8.12.2017 respectively directing production of original passport from his custody and striking out his defence for non-compliance with order for production.

2. The respondent, the plaintiff filed the suit to recover a certain sum of money based on a promissory note allegedly executed by the petitioner, defendant. The petitioner denied execution of the promissory note and also the liability. In reply to interrogatories delivered by the respondent, the petitioner's power of attorney holder, wife submitted to the court that documents containing his signature are not in her possession. It is an admitted fact that the petitioner is employed in Abu Dhabi and holds original passport in possession in connection with his stay in the country. The respondent with intent to get the admitted signature of the petitioner in the passport compared with the disputed signature in the promissory note and to get an expert opinion, applied to the court below under Order XI Rule 14 of the Code of Civil Procedure (for short 'the Code') for an order directing the petitioner to produce his original passport before court. The petitioner opposed the prayer on the ground that he will be deprived of his right to stay abroad and forced to return to India if he is ordered to produce the original passport before the court. He, however, offered to produce a photocopy of the passport if the court so permitted him.

3. This stand of the petitioner did not find favour with the court below and taking a view that non-production of original passport will affect the plaintiff's case and deprive him of a very valuable piece of evidence, I.A. No. 511/2017 was allowed on 5.10.2017. The order for production of the passport was not complied with by the petitioner and this resulted in another order being passed on 8.12.2017 striking out his defence. These two orders are the subject matter of challenge in this original petition filed by him invoking the supervisory jurisdiction of this court under Article 227 of the Constitution of India.

4. The respondent, though served, did not appear and contest this original petition. Therefore learned counsel for the petitioner alone was heard in the matter.

5. The first question arising for consideration in this original petition is whether court below has committed any illegality in ordering the petitioner to produce the original passport from his custody. The petition seeking production of passport and consequential order passed by the court against the petitioner were made under Order XI Rule 14 of the Code. Order XI Rule 14 of the Code is extracted as hereunder;

14. Production of documents.- It shall be lawful for the Court, at any time during the pendency of any suit, to order the production by any party thereto, upon oath, of such of the documents in his possession or power, relating to any matter in question in such suit, as the Court shall think right; and the Court may deal with such documents, when produced, in such manner as shall appear just.
6. The two visible conditions in the provision to be satisfied before a court for canvassing an order of production of a document are that it shall be in the possession or power of the adverse party and further, it should have relevancy to the matter in question arising in the suit. Order XI Rule 14 does not per se contain any other stipulations for observance of the party as a condition precedent for demanding production of documents. But High Courts in India seem to have taken their views that even when these conditions are fulfilled also, a party in possession of a document can still object to the production under certain justifiable circumstances. They are when (i) the document is of privileged nature under law and (ii) its disclosure is injurious to public interest. Similarly production could be legally resisted when document called for can seldom afford to prove applicant's case and its custody with the respondent is necessary to prove his case. Without adverting to these circumstances, a very broad test with respect to power of courts to order production of documents, was laid down by the Hon'ble Supreme Court in Sasanagouda v. Dr. S.B. Amarkhed And Others [MANU/SC/0217/1992 : AIR 1992 SC 1163] in an election case.

7. The Hon'ble Supreme Court held that the power of the court to order production of documents is coupled with a discretion to examine the expediency, justness and relevancy of documents to the matter in question. The words "as the Court shall think right" in Order XI Rule 14 of the Code give a wide discretion to the court to decide in a particular case whether order of production, if issued, would be in the interest of expediency and justness despite the document being relevant to the matter in issue in the suit and also in the admitted possession of the party. The relevant portion of the judgment runs as follows;

7. The Court, therefore, is clearly empowered and it shall be lawful for it to order the production, by any party to the suit, such documents in his possession or power relate to any matter in question in the suit provided the Court shall think right that the production of the documents are necessary to decide the matter in question. The Court also has been given power to deal with the documents when produced in such manner as shall appear just. Therefore, the power to order production of documents is coupled with discretion to examine the expediency, justness and the relevancy of the documents to the matter in question. These are relevant considerations which the Court shall have to advert to and weigh before deciding to summoning the documents in possession of the party to the election petition.
8. Without applying any of these tests, the court below allowed the respondent's application holding that refusal of application would otherwise cause a very valuable piece of evidence in favour of the respondent to be shut out. The objection of the petitioner that passport is in his current use and parting of it would result in putting an end to his stay in Abu Dhabi was not accepted by the court below as if it did not merit any consideration under law. It is a common knowledge that a resident will not be permitted to stay in a foreign country unless he holds original passport in his possession since its production could be insisted by the authorities whenever necessary. Therefore the order of the court for production of the original for comparison by a handwriting expert would only deprive petitioner's right to stay abroad. However, the position would have been different had the direction of the court been limited to production of the passport solely for the inspection of the respondent.

9. The court below while taking care of the respondent's concern and interest in the suit, however, failed to consider the hardship exposed to the petitioner while ordering production of original passport. The extent or degree of comparative hardship likely to be suffered by the petitioner in this respect did not engage the attention of the court below. The test of comparative hardship between parties is also one of the tests to be applied by the courts in deserving cases of this nature when parties to suit apply for production of document invoking Order XI Rule 14 of the Code.

10. Order XI Rule 14 of the Code does not attach to a party an absolute right to insist for production of a document in the possession of the adverse party in support of proof of his case. The right of the applicant is liable to be determined by the court in the light of the test of expediency, justness and relevancy as held by the Hon'ble Supreme Court in the aforesaid decision. Any direction to produce the original passport of the petitioner in court affecting his right to stay abroad will only place him comparably in great hardship than the respondent who relies on the document and seeks to prove his case. Applying the test in Sasanagouda's case, I am satisfied that the impugned order dated 5.10.2017 does not accord with the interest of expediency or justness and therefore it is liable to be set aside as being illegal. The order dated 8.12.2017 striking out defence of the petitioner being consequential, is also therefore unsustainable.

11. An incidental legal question also arises here as to whether a civil court taking notice of non-compliance of its order under Order XI Rule 14 can, by recourse to Order XI Rule 21, enforce its command by an order striking out the defence or dismissing the suit. Order XI Rule 21 is absolutely silent and does not confer any specific power in courts in this regard. Nowhere in the Code also, any specific provision is made investing the courts with the power to strike out or dismiss a suit in the event of disobedience of orders under Order XI Rule 14. Order XI Rule 21 of the Code is extracted as hereunder;

21. Non-compliance with order for discovery.- [(1)] Where any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution, and, if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may apply to the Court for an order to that effect, and an order may be made on such application accordingly, after notice to the parties and after giving them a reasonable opportunity of being heard.

[(2) Where an order is made under sub-rule (1) dismissing any suit, the plaintiff shall be precluded from bringing a fresh suit on the same cause of action.]

Order XI Rule 21 expressly provides for enforcement of only certain kind of orders arising under Chapter XI of the Code. This provision does not take within its umbrella an order of production of document passed by the court under Order XI Rule 14. In my opinion, having regard to the scheme and setting of Chapter XI of the Code, there is a conscious exclusion by the legislature of orders arising under Order XI Rule 14 from the province of Order XI Rule 21. The resultant legal conclusion emerging from the forgoing discussion is that the court ordering production of document invoking its power under Order XI Rule 14 does not acquire any power either under Order XI Rule 21 and Section 151 or any other provisions of the Code, to strike out the defence or dismiss a suit.

In the result, orders passed by the Munsiff Court, Nadapuram in I.A. No. 511/2017 on 5.10.2017 and 8.12.2017 are set aside. Accordingly O.P.(C) No. 492/2018 is allowed.




Print Page

No comments:

Post a comment