Mamta Goel @ Mamta Rani Goel v. Dhanraj Mittal (Deceased) Thr Lrs & Ors.

1. At the first call in the pre lunch session, proxy counsel had appeared for the counsel for the respondents and sought pass over on the ground that the learned counsel was on his legs in another Court.

TUSHAR RAO GEDELA, J. (ORAL)

2. On the second call at 02:55 PM, there is no appearance on behalf of the respondents either.

3. The respondents are, thus, proceeded ex parte.

4. Petitioner challenges the order dated 27.08.2018 passed by the learned Trial Court on an application under Order 11 Rule 1, 14 and 16 r/w Section 151 of the CPC, 1908 seeking disclosure/ discovery of the documents. CM(M) 1596/2018 2

5. Learned counsel appearing for the petitioner submits that it is the case of the petitioner that the defendant No.5 is running his business in the subject suit property without the consent of the plaintiff and to that extent the petitioner sought indulgence of the Court under Order 11 seeking interrogatory as to on what basis is defendant No.5 in possession and on the basis of which documentary evidence, the defendant No.5 was enjoying the suit property.

6. Learned counsel also submits that for the purposes of the issues relevant to the trial, the said interrogatory/ discovery of facts or production of documents is essential.

7. There is no representation on behalf of the respondents and they have already been proceeded ex parte.

8. This Court has considered the impugned order and finds that there is no reasoning given by the learned Trial Court to come to the conclusion that the discovery or the interrogatories are not required or that they are not essential for the purposes of the suit. All that the learned Trial Court observes is that the discovery of documents is not necessary on the basis that the defendant No.5, the respondent herein, will have to prove his case by leading cogent and reliable evidence.

9. No reasons for agreeing or disagreeing with the contents of the application or the arguments of the counsel have been indicated at all, thereby prejudicing the rights of the petitioner in the trial.

10. For the reasons stated above, the impugned order is set aside to the extent that it dismisses the application under Order 11 Rule 1, 14 and 16 r/w Section 151 of the CPC, 1908.

11. The application is restored and the learned Trial Court is directed to CM(M) 1596/2018 3 re-hear and re-consider the matter on its own merits, after giving opportunity of hearing to both the parties and pass a reasoned order.

12. Learned Trial Court is requested to take up the application under Order 11 Rule 1, 14 and 16 r/w Section 151 CPC, 1908 filed by the petitioner, on the date fixed before it i.e., 11.01.2023.

13. In view of the above, the petition is disposed of with no order as to costs.

14. At this stage, Mr. Vijay Sharma, learned counsel for the respondents appears and has been apprised of the aforesaid order.