Allowed

Jehangir a Wadia Dnors v. the Lokmanya Pan Bazar Association Ltd. and Ors.

Bombay HC26 Apr 2010APP/284/2009

Case brief

AI extract

What is this about?

The High Court allowed an appeal challenging an order that directed plaintiffs to inspect documents referenced in the plaint. The Court held that since the plaintiffs no longer relied on those documents to prove their title, and the documents were irrelevant to the defendant's defense, the inspection order was based on irrelevant considerations and was set aside.

What did the court decide?

The impugned order permitting inspection is set aside. The notice of motion is disposed of.

Jehangir a Wadia Dnors Vs the Lokmanya Pan… — Civil Procedure and Limitation | Bombay HC (2010)

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IN THE HIGH COURT JUDICATURE AT BOMBAY

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ORDINARY ORIGINAL CIVIL JURISDICTION

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APPEAL NO.284 OF 2009
IN
CHAMBER SUMMONS NO.1334 OF 2006
In
SUIT NO.19 OF 2006

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1.Jehangir A. Wadia & ors.

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...Appellants.

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Vs.

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1.The Lokmanya Pan Bazar
AssociationLtd. & Anr....Respondents.

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Mr.Janak Dwarkadas, Sr. Advocate with Mr.A. Sayed
i/b. M/s.Consult Legal, for Appellants.

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Mr.F.Devitre, Sr.Advocate i/b. Mr.Anil Menon &
Associates, for Respondent no.2.

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CORAM: D.K.DESHMUKH &
R.V.MORE,JJ.

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DATED:26th April, 2010

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P.C.:

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1.At the request of the learned Counsel

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appearing for appellants, the name of Respondent no.1

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is permitted to be deleted.

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2.Admit. Heard finally by consent of parties.

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By this appeal, the original plaintiffs challenges
the order dated 6.5.2009 passed by the learned Single
Judge of this Court in Chamber summons no.1334 of
2006. That chamber summons was taken out by defendant
no.2 for direction to the plaintiffs to give
inspection of certain documents. Admittedly, those
documents have been referred to in the plaint. The
suit of the plaintiffs is mainly for decree of
declaration that the rectification deed executed on
behalf of the plaintiffs in favour of defendant no.1
is not a valid document, and for other consequential
reliefs. The admitted facts are that the plaintiff
who is a registered public trust executed conveyance
of the property owned by it in favour of defendant
no.1 on 3.3.1969. It is the case of the plaintiffs
that subsequently the manager of the plaintiffs Trust
executed rectification Deed dated 26.6.1992

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unauthorisedly, thereby increasing area of the land
which was transferred by the Trust in favour of

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defendant no.1. Defendant no.2 claims that he has

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been given development rights by defendant no.1. In
the plaint, the plaintiffs have referred to those
documents which relate to title of the plaintiffs-
trust viz. Will, Codicil and the probate granted by
the Court as also the agreement that was entered into
before the conveyance was executed by the Trust in
favour of defendant no.1, to establish their title to
the land. The defendant no.2 sought inspection of

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those documents on the ground that those documents
are referred to in the plaint. The defence of the
plaintiffs was that those documents were referred

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only to show that the plaintiffs had title to the
land which was originally conveyed to defendant no.1

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as also in relation to which subsequently a
rectification deed was unauthorisedly executed by the
Manager. It was submitted that so far as the title

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of the plaintiffs to the land is concerned, the
defendant no.2 cannot dispute it because defendant
no.2 is on the land through defendant no.1 who has

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derived his title only from plaintiffs and no other
source. The learned Single Judge rejected this and

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has allowed the chamber summons mainly on the ground
that these documents are referred to in the plaint,
and therefore, the plaintiffs have to give inspection
of those documents. It is also clear from the order

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that the plaintiffs have stated before the learned
Single Judge that though they have referred to these
documents in the plaint, they undertake not to rely
on these documents at the trial. The learned Counsel

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appearing for plaintiffs-appellants submits that
defendant no.2 in the written statement does not
dispute the title of the plaintiffs rather he cannot
dispute the title of the plaintiffs. The Will and
the Probate and the agreement entered into between
the defendants and plaintiffs are relevant only for
proving title of the plaintiffs which is not in
dispute, and therefore, according to the learned
Counsel, an order for granting of inspection of those

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documents to defendant no.2 could not have been made
because it would amount to making roving inquiry by
defendant no.2.

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appearing for Defendant no.2 firstly objected to the

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maintainability of the appeal by referring to two

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judgments viz. (i) 1909 The Bombay Law Reporter 248,
Ahmed Bin Sheikh Essa Bin Khaliffa Vs. Ayeshabai;

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(ii) 1872 Bombay High Court Reports 398, Sonbai,

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widow of Fazul Habibhai & Anr. Vs. Ahmedbhai Habibhai
and another. However, we find that the Division

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Bench of this Court by its judgment in the case

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�Nishi Prem Vs. Javed Akhtar & ors, 1987 Mh.L.J.

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1073� relying on the judgment of the Supreme Court in
the case �Shah Babulal Khimji Vs.Jayaben D.Kanie &
Anr., AIR 1981 SC 1786� has held that an appeal under
Clause 15 of Letters Patent directing the defendant
to answer interrogatories is maintainable considering

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the consequences that will result due to non-

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compliance of the order. In our opinion, applying

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the same test, an appeal from an order directing the

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plaintiffs to give inspection of the documents is

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also maintainable because the consequence of

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plaintiffs not complying that order could be

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dismissal of the suit. Therefore, in our opinion, it

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cannot be said that the appeal is not maintainable.

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4.So far as the merits are concerned, the

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learned Counsel submitted that for proving the
defence of the defendants, these documents are

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necessary. According to the learned Counsel, because

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these documents throw light on the matter in

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controversy, inspection of these documents has to be
given. The learned Counsel relied on the judgment of

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the Supreme Court in the case �Shri.M.L.Sethi Vs.

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Shri.R.P.Kapur, (1972)2 Supreme Court cases 427�. The
learned Counsel submits that it is the defence of the
defendants that it was the intention of the Trust to

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transfer larger area in favour of defendant no.1 but

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by mistake they transferred lesser area and

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therefore, rectification deed was executed. The
learned Counsel submits that in order to prove the
case, production of these documents is necessary.

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5.With the help of the learned Counsel, we

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have gone through the record. It is true that the

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documents of which the inspection was sought are
referred to in the plaint but it is also clear that

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for proving the case of the plaintiffs these

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documents are absolutely not relevant because the
title of the plaintiffs to the land in question is
not in dispute at all, and the documents viz. Will,

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Codicil and the Probate are relevant only for one
purpose viz. to prove title of the plaintiffs to the
land. So far as the agreement is concerned, we have
been informed that this agreement was entered into
between the Trust and Defendant no.1 for transfer of

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the land. The conveyance which was executed in favour
of defendant no.1 is admittedly on record and the
inspection has been given. Therefore, this agreement

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is also not relevant for proving as to how much land

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was conveyed by the conveyance. Had it been the case

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of the defendants that by the Agreement the trust had

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agreed to convey to the defendant no.1 larger land
which is now done by rectification deed, then

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probably the agreement would have been relevant. But
perusal of the written statement shows that that is

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not the defence of the defendant no.2. It is the

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case of the defendant no.2, as can be seen from the
written statement, that the dispute arose between the

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trustees of the plaintiffs about measurement of the

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area transferred and on actual measurement, the area

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found to be equivalent to 24094 sq.yards, and
therefore, rectification deed was executed. It is

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not the defence of the defendant no.2 that originally

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larger land was agreed to be transferred in favour of
defendant no.1. Thus, we find that the inspection of
this document is not necessary either for proving the

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case of the plaintiffs or for proving the defence of

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defendant no.2. The validity of rectification deed is
challenged by the plaintiffs mainly on the ground
that the Manager who has executed the rectification

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deed had no authority to do so, and the defence of

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the defendant no.2 is that he had that authority and
for proving that aspect of the matter the documents

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are not relevant at all. In our opinion, specially
because a clear statement made by the learned Counsel

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on behalf of the plaintiffs that they are not relying
on the documents which implies that they will apply

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for suitable amendment in the plaint so that

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reference to these documents can be deleted, in our
opinion, the learned Single Judge could not have made

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the order. The learned Counsel appearing for

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defendant no.2 also submitted that as there is no

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likelihood of any prejudice to be caused to the
plaintiffs by giving inspection of these documents
and as the order of inspection is in the discretion

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of the Court, the appeal Court should not interfere
with the order. In our opinion, the submission has no
substance, because though the order of inspection is

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in the discretion of the Court, but if the Court

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makes an order for granting of inspection on the
consideration which is totally irrelevant, the Appeal
Court will have to interfere with the order. The

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learned Single Judge has granted inspection only
because the documents are referred to in the plaint,

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though a statement was made before the learned Single
Judge that the plaintiffs are not relying on those
documents. In our opinion, therefore, non-
interference with such an order will result in

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miscarriage of justice. The appeal therefore,
succeeds and is allowed. The order impugned is set
aside.

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In view of the aforesaid order, Notice of

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motion no.2471 of 2009 does not survive for

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consideration. It is disposed of.

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 (R.V.MORE,J.)

Jehangir a Wadia Dnors v. the Lokmanya Pan Bazar Association Ltd. and Ors.

Case brief

What is this about?

What did the court decide?

Jehangir a Wadia Dnors v. the Lokmanya Pan Bazar Association Ltd. and Ors.

Case brief

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What did the court decide?

What the court decided

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