Full Text
HIGH COURT OF DELHI
CM(M) 1219/2022 & CM APPL. 48844/2022, CM APPL.
48845/2022 MOHINDER SINGH ARORA & ORS. ..... Petitioners
Through: Mr. Satish Tamta, Sr. Adv. with Mr. Vikramaditya Bhaskar, Mr. Shariq Iqbal and Mr. Abhay Dixit, Advs.
Through: Ms. Avni Singh, Adv. for R-1
48895/2022
48927/2022 SIMARDEEP SINGH ARORA ..... Petitioner
48933/2022
48935/2022 SIMARDEEP SINGH ARORA ..... Petitioner
48937/2022
JUDGMENT
15.11.2022
1. These petitions, under Article 227 of the Constitution of India, assail the order dated 21st May 2022 passed by the learned Civil Judge in a batch of suits in which the petitioner was Defendant 1 and Respondent 2 Gurvinder Dhodi was the plaintiff.
2. The case sought to be made out by Respondent 2 against the various defendants in the suit, forming subject matters of these petitions, is identical.
3. The case of Respondent 2, as urged in the plaint, may be set out thus:
(i) Respondent 2 was running a business in food stuffs in
Sharjah under the name and style of Al Fadel Foodstuff Trading Company Ltd. (“the Company”, hereinafter) since 1985. Simardeep Singh Arora, Petitioner 3 in the present petition and Defendant 3 in the suit, was employed by Respondent 2 as a manager in the Company vide contract dated 12th March 2003.
(ii) Respondent 2 was, thereafter, deported to India in
October 2007. At that time, according to the plaint, Respondent 2 entrusted his entire business to Petitioner 3 Simardeep Singh Arora and also executed various powers of attorney, authorising Petitioner 3 Simardeep Singh Arora to perform all acts and sign all documents, including cheques, necessary for conducting the affairs of the Company.
(iii) The plaint alleged that the petitioners, as the defendants in the suit, siphoned off huge amounts from the Company and that, in collusion with Mohd. Ali Saeed Abdulla, a friend of Petitioner 3, who declared himself the owner of the properties of the Company. It is also alleged, in the plaint, that the petitioners filed false cases against Respondent 2.
(iv) The plaint further alleges that, using the money thus siphoned off from the Company, the petitioners purchased several properties in Delhi. Inasmuch as the properties were purchased using monies which, according to the plaint, were siphoned from the Company, Respondent 2 sought a declaration that ownership and possession of the said properties vested with him and also sought a decree of permanent injunction against the petitioner from dealing with the said properties.
(v) The prayer clause in the plaint reads thus: “In view of above, it is therefore most respectfully prayed that this Hon'ble Court may be pleased to:a. pass a decree of declaration in favour of the plaintiff and against the defendants, thereby, declaring that the ownership/title documents of the defendants in respect of the suit property i.e. Property bearing No.43-B/l, Khasra No.34/19, Nilothi, Delhi measuring 405 sq. yds., are null and void having no value in the eyes of law; it is further prayed that a further decree of declaration be also passed thereby declaring the plaintiffs as sole, absolute and exclusive owner of the said property; b. Pass a decree of possession in favour of the plaintiff and against the defendants, thereby, directing the defendants to vacate and hand over the peaceful and actual possession of the suit property i.e. Property bearing No.43-B/l, Khasra No.34/19, Nilothi, Delhi measuring 405 sq. yds., to the plaintiff; c. pass a decree of permanent injunction in favour of the Plaintiff and against the defendants, thereby, the defendants, their agents, associates, employees, family members etc. are restrained from selling, transferring and/ or creating any third party interest in respect of the property i.e. Property bearing No.43-B/l, Khasra No.34/19, Nilothi, Delhi measuring 405 sq. yds., in any manner whatsoever, in the interest of justice; such other or further orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case be also passed in favour of the plaintiff and against the defendants to meet the ends of justice.”
(vi) Respondent 2 moved an application, in the pending suit, under Order XI Rule 14 of the Code of Civil Procedure, 1908 (CPC), seeking a direction to petitioners to file the following documents in the court: “i. Share Sale and Assignment Contract of AL Fadel Trading LLC dated 30.09.2007. ii. Certificate issued from Economic Development Department, Govt. of Sharjah dated 01.10.2007. iii. Memorandum of understanding dated 08.03.2000. iv. Income tax returns/file from the Assessment years 2008-09 to 2013-14. v. GPA, SPA, Agreement to Sell and payment receipt relating to purchase of the suit property duly notarized by defendants as buyer and the erstwhile owner (seller) vi. Registered Will executed by defendants and registered at the sub-registrar office, Nangloi, in respect of suit property.”
(vii) The application of Respondent 2 stands partly allowed by the learned Civil Judge vide order dated 21st May 2022.
4. The present petition takes exception to the impugned order dated 21st May 2022 only insofar as it directs (i) Petitioner 3 to furnish his income tax returns for the assessment years 2008-09 to 2013-14 and (ii) the defendants in the suit to furnish the ownership documents in respect of the properties which form subject matter of Civil Suits 8525/2016, 8526/2016, 8508/2016, 7354/2016, 7353/2016, 7350/2016 and 7591/2016. Petitioner’s Submissions
5. Mr. Satish Tamta, learned Senior Counsel for the petitioner, submits that there was no justification for the learned Civil Judge to direct the furnishing of the aforesaid documents as, by doing so, the learned Civil Judge is conducting a roving and fishing enquiry. He relies, for this submission, on the judgment of a coordinate Bench of this Court in Arun Jaitley v. Arvind Kejriwal[1].
6. The decision in Arun Jaitley[1] adjudicated various interlocutory applications.
7. Mr. Tamta relies on the said decision in Arun Jaitley[1] to the extent of the findings contained in respect of IA 2703/2017, which may be reproduced thus:
17. Though not in the domain of the Court to advise, but it is for the applicant/defendant no.1 to adduce evidence of the accounts from which monies are alleged to have flowed to the plaintiff or his family members, instead of wanting to find out from the bank accounts of plaintiff and his family members whether they have received any money.
18. There is no merit in the application.
19. Dismissed.”
8. Mr. Tamta additionally submits that the petitioner had filed an application under Order VII Rule 11 of the CPC, submitting that the suit was liable to be dismissed. He points out that there is a wide swathe of authority to the effect that applications under Order VII Rule 11 of the CPC, inasmuch as they touch the very jurisdiction of the proceedings, are required to be decided at the outset.
9. In directing production of documents without adjudicating on the petitioner’s application under Order VII Rule 11 of the CPC, Mr. Tamta submits that the learned Civil Judge has additionally erred. Issues that arise for consideration
10. Two issues, therefore, arise for consideration. The first is whether the learned Civil Judge was justified in directing production of the documents noted in para 3(vi) supra. The second is whether the learned Civil Judge ought, in the first instance, to have decided the petitioner’s application under Order VII Rule 11 of the CPC. Analysis Re. direction to produce documents
11. Insofar as the first issue is concerned, having perused the impugned order, heard learned Counsel for the parties as well as Respondent 2 who appears in person and in view of the limited scope of Article 227 of the Constitution of India, I do not find this to be a fit case to interfere with the decision of the learned Civil Judge.
12. It was alleged by Respondent 2, in the plaint instituted by him, that, out of the money allegedly siphoned from the Company, the petitioners had enriched themselves and augmented their assets by purchasing various properties. These various properties formed subject matter of the individual suits, which sought a direction for a declaration that Respondent 2 was entitled to be regarded as the owner thereof.
13. Order XI Rule 14 of the CPC reads thus:
14. Order XI Rule 14 is categorical in ordaining that “it shall be lawful for a Court” to, at any time during the pendency of a suit, order the production, by any party thereto, upon oath, of documents in his power and possession, relating to any matter in question in the suit. The provision clothes the court with absolute discretion in the matter.
15. Any documents which, in the opinion of this Court, relate to any matter in question in the suit, can be summoned by the court.
16. The expression “relate to” is an expression of wide and compendious export.
17. In Supdt. & Remembrancer of Legal Affairs, Bengal v. Bhaju Majhi[2] the High Court of Calcutta has noted the expression “relates to” as ordinarily meaning “is connected with” or “have reference to”. In a similar vein, the High Court of Madras, in State Wakf Board v. Abdul Azeez Sahib[3] has observed that the words “relating to” are words of comprehensiveness which might both have a direct as well as an indirect significance depending on the context.
18. The Supreme Court has, in Mansukhlal Dhanraj Jain v. Eknath Vithal Ogale[4], set the matter at rest by holding that the expression “relating to” “is of widest amplitude which includes even the question as to the existence, validity and effect”.
19. The Legislature having consciously employed the expression “relate to” in Order XI Rule 14 of the CPC, it would be folly on the AIR 1930 Cal 291 AIR 1968 Mad 79 AIR 1995 SC 1102 part of a court, interpreting the provision, to restrict the scope and the ambit of the expression. Clearly, any document which has any connection with the question in issue in the suit can, if the court deems it appropriate, be directed to be produced. If the court does so, the provision clearly states that “such a decision shall be lawful”.
20. Given the parameters of the dispute between the parties in the present case, and the allegations levelled in the plaint, and irrespective of the correctness or otherwise of the said allegations or the merits of the rival contentions urged by the parties, it cannot be said that the title documents relating to the properties forming subject matter of Civil Suits 8525/2016, 8526/2016, 8508/2016, 7354/2016, 7353/2016, 7350/2016 and 7591/2016 and the income tax returns of Petitioner 3 did not relate to the matters in dispute in the suit.
21. The relevance of the said documents may be another matter altogether and it may be open to the petitioner, during the course of trial, to contend that the said documents are not relevant or that they do not assist the case of the respondents. The mere direction for production of the documents cannot be treated as prejudicing the petitioner in any manner or, in any event, making out a case for interference by this Court under Article 227 of the Constitution of India.
22. It is a misconception that Article 227 of the Constitution of India clothes the High Court with wide powers. The Supreme Court has, in several decisions, ruled to the contrary. The following passages, from some of the authoritative pronouncements on the point, place the matter beyond pale of controversy:
(i) Estralla Rubber v. Dass Estate (P) Ltd.[5]
(ii) Garment Craft v. Prakash Chand Goel[9]
(iii) Puri Investments v. Young Friend and Co.12:
(iv) Sadhana Lodh v. National Insurance Co. Ltd.13
(v) Ibrat Faizan v. Omaxe Buildhome (P) Ltd.14:
23. Within the limited parameters of the jurisdiction vested in this Court by Article 227 of the Constitution of India, therefore, I do not find that a case has been made out to interfere with the impugned order dated 21st May 2022 insofar as it directs Petitioner 3 to furnish his income tax returns for the years 2008-09 to 2013-14 and directs the petitioners to produce the ownership documents relating to the properties forming subject matter of Civil Suits 8525/2016, 8526/2016, 8508/2016, 7354/2016, 7353/2016, 7350/2016 and 7591/2016.
24. That that extent, therefore, the impugned order is upheld. Re. pending application of petition under Order VII Rule 11, CPC
25. That takes us to the second issue, of whether the learned Civil Judge ought to have passed the impugned order even while the petitioners’ application under Order VII Rule 11 was pending.
26. It has been held in R. K. Roja v. U. S. Rayudu15 that an application under Order VII Rule 11 of the CPC, inasmuch as it touches the very jurisdiction of the court to adjudicate on the dispute and the maintainability of the suit itself, has to be decided at the first instance.
27. As such, I am of the opinion that the learned Civil Judge ought, at the first instance, to have decided the petitioners’ application under Order VII Rule 11 of the CPC. In the event that the said application is allowed, the suit itself would not survive in which case there would be no question of the impugned order surviving either. However, if the petitioners’ application under Order VII Rule 11 is dismissed, then the impugned order, which stands otherwise upheld, would have to be obeyed. Conclusion
28. I am informed that the matter is listed before the learned Civil Judge today i.e., on 15th November 2022. The next date of hearing is yet to be fixed.
29. Accordingly, in the interests of justice, the matter is re-notified before the learned Civil Judge on 25th November 2022, on which date both sides would appear before the learned Civil Judge.
30. On the said date, the learned Civil Judge is requested to hear the petitioners’ application under Order VI Rule 11 of the CPC and take a decision thereon.
31. The upholding of the impugned order dated 21st May 2022, needless to say, shall be subject to the decision of the learned Civil Judge on the petitioners’ application under Order VII Rule 11.
32. With the aforesaid observations, these petitions are disposed of in limine.
C. HARI SHANKAR, J.
NOVEMBER 15, 2022