# President Shri Chaturbhuj Sharma Sikshan Sansthan Mahavidyalay Samit Orai, District Jalaun and another v. Awadh Bihari Tiwari @ Ram Babu and others

- **Citation:** (2006) 2 ILRA 935
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-03-06
- **Case number:** Civil Misc. Writ Petition No. 13389 of 2006
- **Bench:** Umeshwar Pandey
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/president-shri-chaturbhuj-sharma-sikshan-sansthan-mahavidyalay-samit-orai-40687
- **Pages:** 3

## Headnote

(A) Code of Civil Procedure-Order XI
rule-12 readwith section 151-Application
for discovery of certain documents-under
heading
of
151
C.P.C.-application
otherwise full of merit-held-mention of
wrong provision-can not be basis for
rejection-petitioner/Defendant
being
president and Secretary of Societydirection for presenting those document
can not be said erroneous.

Held: Para 5

The mere mention of provision on the
heading of the application will not render
the application liable for rejection. On
the contrary the prayer made in the
application if found to be sound and
covered under some other provision of
the Code, it will not be treated as one
made under Section 151 C.P.C. Such
application should usually be considered
in the light of its otherwise merits by the
court.
In
the
present
case,
the
application with the prayer, appears to
be pure and simple under the provision
of Order XI, Rule 12 C.P.C. for discovery
of document. It is definitely an order
passed under that provision only and the
application is not liable to be rejected
summarily because it wrongly mentions
Section 151 C.P.C. in its heading. The
aforesaid case law of N.I.M.H. & Neuro
Sciences (supra) is not applicable with
the facts of this case. The trial court has
given its serious thoughts to the prayer
made
in
the
application
of
the
respondents plaintiffs and has found that
the documents, which were sought to be
discovered,
would
definitely
be
in
possession of the petitioners, who are
President and Secretary of the society
and who alone represent the society.
Therefore, if a direction has been given
to them for presenting those documents,
the said order cannot be said to be
erroneous.

(B) Code of Civil Procedure-Section 11Resjudicata-application for production of
document
under
order
XI
rule
12
rejected due to want of supporting
affidavit in-subsequent application under
section
151
duly
supported
with
affidavit-held-proper any order whether
interlocutory
or
not-passed
ignoring
merit will not operate as resjudicata.

Held:
1981 AWC-17
2005 (2) AWC-1865

## Text

2 All] President,S.C.S.S.S.Mahavidyalay Samiti and another V. A.B. Tiwari and others
935
pending. In this view of the matter I do
not find any error in the orders passed by
the trial court and affirmed by the
revisional court whereby the courts have
allowed the application for impleadment
of the respondents.

3. In view of what has been stated
above the writ petition has no force and is
accordingly dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.03.2006

BEFORE
THE HON'BLE UMESHWAR PANDEY, J.

Civil Misc. Writ Petition No. 13389 of 2006

President Shri Chaturbhuj Sharma Sikshan
Sansthan Mahavidyalay Samit Orai, District
Jalaun and another ...Petitioners
Versus
Awadh Bihari Tiwari @ Ram Babu and
others

...Respondents

Counsel for the Petitioners:
Sri B.N. Agrawal
Sri Sanjay Agrawal

Counsel for the Respondents:
Sri M.C. Chaturvedi
Sri Dwivedi S.C.
S.C.

(A) Code of Civil Procedure-Order XI
rule-12 readwith section 151-Application
for discovery of certain documents-under
heading
of
151
C.P.C.-application
otherwise full of merit-held-mention of
wrong provision-can not be basis for
rejection-petitioner/Defendant
being
president and Secretary of Societydirection for presenting those document
can not be said erroneous.

Held: Para 5

The mere mention of provision on the
heading of the application will not render
the application liable for rejection. On
the contrary the prayer made in the
application if found to be sound and
covered under some other provision of
the Code, it will not be treated as one
made under Section 151 C.P.C. Such
application should usually be considered
in the light of its otherwise merits by the
court.
In
the
present
case,
the
application with the prayer, appears to
be pure and simple under the provision
of Order XI, Rule 12 C.P.C. for discovery
of document. It is definitely an order
passed under that provision only and the
application is not liable to be rejected
summarily because it wrongly mentions
Section 151 C.P.C. in its heading. The
aforesaid case law of N.I.M.H. & Neuro
Sciences (supra) is not applicable with
the facts of this case. The trial court has
given its serious thoughts to the prayer
made
in
the
application
of
the
respondents plaintiffs and has found that
the documents, which were sought to be
discovered,
would
definitely
be
in
possession of the petitioners, who are
President and Secretary of the society
and who alone represent the society.
Therefore, if a direction has been given
to them for presenting those documents,
the said order cannot be said to be
erroneous.

(B) Code of Civil Procedure-Section 11Resjudicata-application for production of
document
under
order
XI
rule
12
rejected due to want of supporting
affidavit in-subsequent application under
section
151
duly
supported
with
affidavit-held-proper any order whether
interlocutory
or
not-passed
ignoring
merit will not operate as resjudicata.

Held:
1981 AWC-17
2005 (2) AWC-1865

(Delivered by Hon'ble Umeshwar Pandey, J.)

Heard learned counsel for the parties.
936 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
1. This petition challenges the order
dated 6.5.2005 passed by the trial court
and order dated 19.12.2005 passed by the
revisional court. The respondent No. 1
filed a suit for declaration against the
petitioners- defendants in which the
plaintiff presented an application under
Order XI, Rule 12 C.P.C. for discovery of
certain documents. Initially the said
application was dismissed vide order
dated 4.4.2005 (Annexure-6) stating that
the application was not supported with
affidavit and the defendants petitioners
had denied possession of those documents
sought to be discovered. Thereafter, a
second application stated to be under
Section 151 C.P.C. was moved with the
same prayer, which has been allowed by
the impugned order. This application was
supported with affidavit. The revisional
court has dismissed the revision of the
petitioners stating that the revisional court
would not go into the factual matters and
thus, the revision was not found having
merits.

2. Learned counsel appearing for the
petitioners has tried to emphasise that the
earlier order rejecting the application of
the respondent-plaintiff will operate as res
judicata and has also cited the case law of
Ali Khan Vs. Ram Prasad & another,
1981 AWC 17. The second argument of
the learned counsel is that the present
application, which has been allowed by
the impugned order, is stated to be an
application under Section 151 C.P.C.
whereas it should be an application under
Order XI, Rule 12 C.P.C. as specific
provision for granting such prayer is
provided under the Code. Therefore, if the
application has been given the title of
being a petition under Section 151 C.P.C.
the same is not to be entertained in view
of case law of N.I.M.H. & Neuro
Sciences Vs. C. Parameshwara, 2005 (2)
AWC 1865 (SC).

3. As regards the first point of
argument raised in the present case, the
reply, which has been given from the side
of the respondents, is that the order,
which was passed earlier in Annexure-6,
was not an order passed on merits and the
application was summarily rejected for
want of supporting affidavit. The merits
of the matter whether the documents
sought to be discovered are possessed by
the petitioners-defendants are not gone
into by the trial court in the earlier order,
therefore, the said order would not
operate as res judicata.

4. I find force in the reply argument
given from the side of respondents. Any
order whether interlocutory or not, if has
not been passed on merit, it will definitely
not operate as res judicata. The aforesaid
case law of Division Bench of this court
in the present facts and circumstances
would not be applicable. The application
was summarily rejected for want of
supporting affidavit though, the affidavit
in support of such application is not
required under the procedure. So-far-as
the availability of those documents with
the respondents defendants is concerned,
the mere observation in the earlier order is
that the defendants had denied possession
of the same. This point is also not
discussed on merit. The second order
passed by the court below is a full-fledged
order passed after discussing the entire
aspects of the matter and in the present
context any bar of res judicata would not
be
applicable
for
the
purposes
to
challenge this order.

5. As regards the second point of
argument that such application should not
2 All] Saurabh @ Chhotoo V. District Magistrate, Jhansi and others
937
be allowed with a heading of Section 151
C.P.C., it also does not appear to be very
sound. The mere mention of provision on
the heading of the application will not
render the application liable for rejection.
On the contrary the prayer made in the
application if found to be sound and
covered under some other provision of the
Code, it will not be treated as one made
under
Section
151
C.P.C.
Such
application should usually be considered
in the light of its otherwise merits by the
court. In the present case, the application
with the prayer, appears to be pure and
simple under the provision of Order XI,
Rule
12
C.P.C.
for
discovery
of
document. It is definitely an order passed
under that provision only and the
application is not liable to be rejected
summarily because it wrongly mentions
Section 151 C.P.C. in its heading. The
aforesaid case law of N.I.M.H. & Neuro
Sciences (supra) is not applicable with the
facts of this case. The trial court has given
its serious thoughts to the prayer made in
the
application
of
the
respondents
plaintiffs
and
has
found
that
the
documents, which were sought to be
discovered,
would
definitely
be
in
possession of the petitioners, who are
President and Secretary of the society and
who
alone
represent
the
society.
Therefore, if a direction has been given to
them for presenting those documents, the
said order cannot be said to be erroneous.
The possession of the documents may be
with the Treasurer but since the President
and Secretary of the society represent the
society itself, the direction of the court
will be issued only to the President and
Secretary and not to the Treasurer.

6. In the aforesaid view of the
matter, I do not find any error whatsoever
in the order of the court below and as
such the petition having no force is
hereby dismissed. Petition dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.7.2006

BEFORE
THE HON'BLE M.C. JAIN, J.
THE HON'BLE K.K. MISRA, J.

Habeas Corpus Writ Petition No.20098 of
2006

Saurabh @ Chhotoo

...Petitioner
Versus
District Magistrate, Jhansi and others

...Respondents

Counsel for the Petitioner:
Sri S.N. Gupta

Counsel for the Respondents:
Sri Arvind Tripathi
A.G.A.

Constitution
of
India-Art-226-Habeas
Corpus
Petition-detention
on
the
ground-named accused in FIR-offence
under section 147/148, 149, 302, 504,
506 I.P.C.-role of petitioner-in darknessknifing the victim-accused person loudly
exhorting to do with breach of Public
Order-detention Order Quashed.

Held: Para 4

It has come in the FIR that when the
accused were loudly exhorting each
other during the course of committing
this crime, the inverter was on which
goes to show that there was no light in
the locality. The incident which took
place in the cover of the darkness and in
which the petitioner has been given the
role of knifing the victim, had nothing to
do with the breach of public order. While
considering the question whether a
particular incident gave rise to breach of
public order or it was only breach of law