:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER CHAMBER CHAMBER SUMMONS NO. 1334 OF 2006 SUMMONS NO. 1334 OF 2006 SUMMONS NO. 1334 OF 2006 IN IN IN SUIT SUIT SUIT NO. 19 OF 2006 NO. 19 OF 2006 NO. 19 OF 2006 Jehangir A. Wadia and others ..Plaintiffs V/s Lokmanya Pan Bazar Association Ltd. and Anr. ..Defendants Shri M.A. Sayed i/b M/s Dhru & Co. for the Plaintiffs Shri Narayanan i/b M/s Narayanan & Narayanan for Defendant No.1 Shri Anil Menon for Defendant No.2 CORAM ; A.A.SAYED, J. DATE : 6TH MAY, 2009 P.C. 1. The above Chamber Summons is taken out by the defendant No.2 for directions to the plaintiffs to give inspection of the documents listed in the Schedule to the Chamber Summons. 2. The list of the documents mentioned in Schedule are as under:- (a) Will dated 9th December, 1879 (b) Codicil dated 27th February,1983 (c) Will dated 9th May, 1882 (d) Probates dated 23rd February, 1883 granted by the :2: Hon’ble High Court. (e) Agreement dated 30th November, 1996 3. The suit has been filed by the plaintiffs essentially for declaration that they are owners of the land bearing CTS No. 638 admeasuirng 4,594 sq. yards and for cancellation of Deed of Rectification dated 26-06-1992. According to the plaintiffs, the defendants are encroachers and tress-passers in respect of the suit land. The Deed of Rectification is annexed as Exh. "D" of the plaint. It is the plaintiffs’ case that the land admeasuring 19500 sq.yards, which was sold by the plaintiffs to the Defendant No.1 vide Deed of Conveyance dated 03-03-1969, is sought to be increased fraudulently by executionof the Deed of Rectification dated 26.06.92 by a person not authorised to sign the said document on behalf of the plaintiffs and the suit land admeasuring 4,594 sq.yds. is sought to be wrongly added to the Schedule of the Deed of Conveyance dated 3.3.1969 vide the said Deed of Rectification. 4. After the filing of the suit, the defendant No.2 had sought inspection of documents from the :3: plaintiffs. However only three documents were offered for inspection and inspection of the documents enumerated hereinabove, was declined though specifically demanded. Hence this Chamber Summons under Order 11 Rule 15 of CPC. 5. The Chamber Summons has been opposed by the plaintiffs by filing reply. The Chamber Summons is essentially opposed on the following grounds :- "(a) the 2nd Defendant has not made out any case of the inspection of the documents specified within the Schedule of the Chamber Summons; (b) the 2nd Defendant seeks to make a fishing or roving enquiry; (c) the inspection, as sought, is not necessary either for fairly disposing off the suit or for saving costs; (d) the Chamber Summons is not maintainable; (e) the Chamber Summons is motivated by malafides; (f) the Chamber Summons is premature." 6. The learned Counsel for the defendant No.2 submitted that the inspection of the documents which are sought, have been referred to in the plaint and :4: the plaintiffs are therefore bound to give inspection of the said documents. The learned Counsel has pointed out that the plaintiffs have taken out a Notice of Motion in the suit being Notice of Motion No. 3022/2006 seeking a decree on admission against the defendants under the provisions of Order 12 rule 6 of CPC, based on certain admissions in a Writ Petition being Writ Petition No.696/2001 filed by Defendant No.1 which Writ Petition ultimately came to be disposed of with liberty to adopt appropriate remedy. The learned Counsel referred to Order XI, Rules 15 and 18 of CPC, which read as follows:- "15 -Inspection of documents referred to in Inspection of documents referred to in Inspection of documents referred to in pleadings pleadings pleadings of affidavits.- of affidavits.- of affidavits.- Every party to a suit shall be entitled at or before the settlement of issue to give notice to any other party, in whose pleadings or affidavits reference is made to any document, or who has entered any document in any list annexed to his pleadings, to produce such document for the inspection of the party giving such notice, or of his pleader, and to permit him or them to take copies thereof; and any party not complying with such notice shall not afterwards be at liberty to put any such document in evidence on his behalf in such suit unless he shall satisfy the Court that such document relates only to his own title, he being a defendant to the suit, or that he had some other cause or excuse which the Court shall deem sufficient for not complying with such notice, in which case the Court may allow the same to be put in evidence on such terms as to costs and otherwise as the Court shall :5: think fit." "18. Order for inspection Order for inspection Order for inspection.-(1) Where the party served with notice under rule 15 omits to give such notice of a time for inspection or object to give inspection, or offers inspection elsewhere than at the office of his pleader, the Court may, on the application of the party desiring it, make an order for inspection in such place and in such manner as it may think fit. Provided that the order shall not be made when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the suit or for saving costs. (2) Any application to inspect documents, except such as are referred to in the pleadings, particulars or affidavits of the party against whom the application is made or disclosed in his affidavit of documents, shall be founded upon an affidavit showing of what documents inspection is sought, that the party applying is entitled to inspect them, and that they are in the possession or power of the other party. The Court shall not make such order for inspection of such documents when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the suit or for saving costs." Relying upon the aforesaid provisions the learned Counsel submitted that since the documents have been referred to in the plaint, inspection of the documents cannot be denied. He submitted that inspection of documents is necessary for disposing of the suit fairly, more particularly in the instant case where the plaintiffs are seeking a decree on :6: admission and urged that the Chamber Summons be allowed. 7. The learned Counsel for the plaintiffs on the other hand pointed out that the documents of which inspection is sought are not relevant and the defendant No.2 is not entitled to inspection of the said documents. The learned Counsel, referring to the Deed of Conveyance dated 03-03-1969 pointed that the suit land is not conveyed to the Defendant No.1 and that fraud has been practiced in execution of the alleged Deed of Rectification dated 26.6.1992, after about 23 years, of which the plaintiffs came to know about, only in the year 2001 The learned Counsel submitted that inspection of the said documents is not necessary for a fair disposal of the suit and that no case has been made out for granting inspection to the defendant No.2 and urged that the Chamber Summons be dismissed. He relied upon the case of Divisional Controller of Maharashtra State Divisional Controller of Maharashtra State Divisional Controller of Maharashtra State Road Road Road Transport Corporation V. Abdul Aziz SK. Mohd Transport Corporation V. Abdul Aziz SK. Mohd Transport Corporation V. Abdul Aziz SK. Mohd and and and others, others, others, reported in 2007 (5) Mh.L.J. 691, wherein the Single Judge of this court has held that until an affidavit of documents has been directed to :7: be filed, the Court would have no jurisdiction to order inspection. 8. Having heard the learned Counsel for the parties and on perusal of the material on record, I am of the view that the defendant No.2 is entitled to be granted inspection of the documents mentioned in the Schedule to the Chamber Summons. The said documents have been referred to by the plaintiffs themselves in the plaint. Not only the documents have been referred to, but the same have also been relied upon, as is evident from item No.5 of the List of Documents, set out at page 18 of the plaint which reads - "correspondence and documents mentioned in the plaint". Since the plaintiffs are seeking a decree on admission under Order 12 Rule 6 of CPC against the defendants vide their Notice of Motion, the inspection of documents are all the more necessary as the possibility of the suit not going for trial and evidence being recorded, cannot be ruled out, in the event the Notice of Motion is allowed. The documents of which inspection is sought, would in my opinion have a bearing on the title of the suit land and would be relevant. :8: 9. The case of Divisional Controller of Divisional Controller of Divisional Controller of Maharashtra Maharashtra Maharashtra State Road Transport State Road Transport State Road Transport (Supra) relied upon by the plaintiffs would not apply in the facts of the present case inasmuch as having regard to the possible consequences of the Notice of Motion which has been taken out by the plaintiffs against the defendants, under Order 12 Rule 6 of CPC for a decree on admission, there may not be an occasion at all to file any affidavit of documents in the matter, if the Notice of Motion is allowed. That ruling relied upon is therefore distinguishable insofar as the facts of the present case is concerned. 10. Section 30 of the CPC is also relevant in the context of the present case. It reads as under :- "S.30. S.30. S.30. Power to order discovery and the Power to order discovery and the Power to order discovery and the like.- like.- like.- Subject to such conditions and limitations as may be prescribed, the Court may, at any time, either of its own motion for on the application of any party,- (a) make such orders as may be necessary or :9: reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence; (b) issue summonses to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid; (c) order any fact to be proved by affidavit." 11. Taking an over all view of the matter as also in the interest of justice, in my opinion the defendant No.2 is required to be granted a fair opportunity to effectively defend the suit, for which purpose inspection of the documents would be necessary so as to ensure a fair disposal of the suit, particularly when those documents are referred to and relied upon by the plaintiffs in their own plaint and considering the provisions of Section 30 and Order 11, Rules 15 and 18 of CPC, which empower :10: the Court to grant inspection of the documents. 12. The defendant No.2 has clearly made out a case for the grant of inspection of documents. On the other hand, significantly, the plaintiffs have failed to point as to what prejudice would be caused to them if inspection of the said documents are given to the defendant No.2. In my view, the grounds taken and submissions made by the plaintiffs to oppose the grant of inspection is unjustifiable and devoid of merit. Consequently, I pass the following order. ORDER (i) Chamber Summons is made absolute in terms of prayer clause (a). (ii) The plaintiffs are directed to give inspection of the documents sought by the defendant No.2 as set out in the Schedule annexed to the Chamber Summons and also provide true photo copies of the same to the defendant No.2. Inspection shall be provided by the plaintiffs to the Defendant No.2 within a period of 8 weeks from today. :11: 13. At this stage, the learned Counsel for the plaintiffs pointed that his submission that the plaintiffs are not relying upon the said documents mentioned in the Schedule is required to be recorded in this order. The submission, in my view , need be stated only to be rejected. The plaintiffs, if at all, ought to have taken out appropriate proceedings, to seek deletion of the reference to the said documents in the plaint before the hearing of this Chamber Summons. The submission/statement, in any event, ought to have been made at the threshhold and even before the Learned Counsel for the defendant No.2 advanced his arguments and not after his arguments were heard and during the course of the arguments of the learned Counsel of the plaintiffs. In my view, the submission is made only to avoid giving inspection of documents and cannot be taken seriously and cannot be said to be bonafide, particularly when the plaintiffs had an opportunity to hear the arguments of learned Counsel of defendant No.2 and guage the prima facie reaction of the Court. 14. The learned Counsel for the plaintiffs seeks :12: stay of this order. The operation of this order is accordingly stayed for a period of eight weeks from today. 15. C.C. expedited. ( A.A. SAYED, J.) A.A. SAYED, J.) A.A. SAYED, J.)