# Vipin Kumar v. Dr. Wahid Ahmad Qureshi & Ors

- **Citation:** (2024) 3 ILRA 1507
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-04
- **Case number:** Matter Under Article 227 No. 10305 of 2023
- **Bench:** Manish Kumar Nigam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vipin-kumar-v-dr-wahid-ahmad-qureshi-ors-51533
- **Pages:** 7

## Headnote

Criminal Law - Code of Civil Procedure,
1908 - Order XI Rules 15, 16, 21 -
Constitution of India,1950 - Article 227 -
Petitioner
challenged
the
order
dated
02.09.2023 by Additional District Judge, Meerut,
dismissing applications (Paper Nos. 225 Ga and
229 Ga) in Civil Appeal No. 157/2010, seeking
dismissal of Original Suit No. 823/2000 for noncompliance with document inspection notice
under Order XI Rule 16 and clarification on
document filing. Suit for specific performance of
a 1975 sale agreement was decreed on
27.08.2010. Petitioner, during appeal, sought
inspection of documents referenced in the
plaint, claiming applicability of Order XI to
appeals under Section 107 and Order XLI Rule
33 CPC. Court held that post-1999 amendment,
Order XI Rule 15 limits inspection to "at or
before settlement of issues," and petitioner,
having contested the suit on merits, could not
claim inspection at appellate stage. Reliance on
Peoples Education Society Vs St. of A.P., 1971
(1) ALT 63, and Jankidas Vs Kaushalya Devi, AIR
1943 Lahore 207, misplaced as pre-amendment.
Salem Advocate Bar Association Vs U.O.I.,
(2005) 6 SCC 344, clarified discretion in
inspection timing but not applicable post-decree.
No denial of defence opportunity, as suit was
fully contested. Order upheld; petition dismissed
for lack of merit. (Paras 9-17)

Case Law Cited:

## Text

3 All. Vipin Kumar Vs. Dr. Wahid Ahmad Qureshi & Ors.
1507

22. In the result, this petition stands
allowed in part. The impugned judgment
and order dated 12.07.2023 passed by the
Additional District Judge, Court No. 6,
Mathura is hereby set aside, with a
direction to the Revisional Court to
determine the revision on merits, deciding
the suit, after hearing both parties, bearing
in mind the guidance in this judgment.

23. Since the suit is one of the year
2015, it is directed that the Revisional
Court shall proceed to hear the revision,
fixing two dates of effective hearing every
week and decide it within a period of two
months from the date of receipt of a copy
of this judgment.

24. There shall be no order as to costs.

25. The Registrar (Compliance) is
directed to communicate this order to the
Additional District Judge, Court No. 6,
Mathura through the learned District Judge,
Mathura.
----------
(2024) 3 ILRA 1507
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.01.2024

BEFORE

THE HON'BLE MANISH KUMAR NIGAM, J.

Matter Under Article 227 No. 10305 of 2023

Vipin Kumar ...Petitioner
Versus
Dr. Wahid Ahmad Qureshi & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Sumit Daga
Counsel for the Respondents:
--
Criminal Law - Code of Civil Procedure,
1908 - Order XI Rules 15, 16, 21 -
Constitution of India,1950 - Article 227 -
Petitioner
challenged
the
order
dated
02.09.2023 by Additional District Judge, Meerut,
dismissing applications (Paper Nos. 225 Ga and
229 Ga) in Civil Appeal No. 157/2010, seeking
dismissal of Original Suit No. 823/2000 for noncompliance with document inspection notice
under Order XI Rule 16 and clarification on
document filing. Suit for specific performance of
a 1975 sale agreement was decreed on
27.08.2010. Petitioner, during appeal, sought
inspection of documents referenced in the
plaint, claiming applicability of Order XI to
appeals under Section 107 and Order XLI Rule
33 CPC. Court held that post-1999 amendment,
Order XI Rule 15 limits inspection to "at or
before settlement of issues," and petitioner,
having contested the suit on merits, could not
claim inspection at appellate stage. Reliance on
Peoples Education Society Vs St. of A.P., 1971
(1) ALT 63, and Jankidas Vs Kaushalya Devi, AIR
1943 Lahore 207, misplaced as pre-amendment.
Salem Advocate Bar Association Vs U.O.I.,
(2005) 6 SCC 344, clarified discretion in
inspection timing but not applicable post-decree.
No denial of defence opportunity, as suit was
fully contested. Order upheld; petition dismissed
for lack of merit. (Paras 9-17)

Case Law Cited:

1. Peoples Education Society, Bombay Vs St. of
A.P., 1971 (1) ALT 63 (Para 8)

2. Jankidas Vs Kaushalya Devi, AIR 1943 Lahore
207 (Paras 8, 11)

3. Nagpur Glass Works Ltd. Vs Shree Onama
Glass Works Ltd., AIR 1938 Nag 239 (Para 12)

4. Salem Advocate Bar Association Vs U.O.I.,
(2005) 6 SCC 344 (Para 15)

(Delivered by Hon'ble Manish Kumar
Nigam, J.)

1. Heard learned Counsel for the
parties and perused the record.
1508 INDIAN LAW REPORTS ALLAHABAD SERIES

2. This petition has been filed for the
following relief :

"i). Set-aside the order dated
2.9.2023 passed by the learned Addl
District Judge, Court No.12, Meerut in
Civil Appeal No.157 of 2010 (Vipin Vs. Dr.
Wahid Ahmad Qureshi (deceased) & others
(Annexure No.14 to this Petition) and the
applications, Paper Nos.225 Ga & 229 Ga
(Annexure Nos.8 & 11 to this petition) of
the defendant/petitioner may be allowed."

3. Brief facts of the case are that the
plaintiffs-respondents instituted Original
Suit No.823 of 2000 in the Court of Civil
Judge (Senior Division), Meerut against the
defendant-petitioner
for
specific
performance of an agreement to sell dated
7.1.1975 executed between the father of the
plaintiffs-respondents and the defendantpetitioner. The aforesaid suit was contested
by
the
petitioner
by
filing
written
statement. The Addl. Civil Judge (Senior
Division), Meerut Court No.6 vide the
judgment and decree dated 27.8.2010
decreed the suit. The defendant-petitioner
filed Civil Appeal No.157 of 2010
challenging the judgment and decree dated
27.8.2010 passed by the trial court. During
pendency of the appeal, the appellantpetitioner gave a notice under Order 11
Rule 16 C.P.C. for inspection of documents
mentioned in paragraph no. 4, 8 & 9 of the
plaint of O.S. No. 823 of 2000. The
plaintiffs-respondents
contested
the
application by filing their objections to the
effect that document referred in paragraph
no. 4 of the plaint are already part of record
and no documents are referred in paragraph
nos. 8 & 9 of the plait. Since, the plaintiffsrespondents failed to comply with the
notice under Order XI Rule 16 C.P.C., the
petitioner filed application Paper No.225
Ga under Order XI Rule 21 C.P.C. with a
prayer to dismiss the aforesaid suit for noncompliance of the provisions contained in
Order XI Rule 16 C.P.C. This application
was also contested by the plaintiffsrespondents by filing objections inter alia
pleading that the documents are already on
record. Then the petitioner moved another
application Paper No.229 Ga with the
prayer that the plaintiffs-respondents be
directed to specify as to when the aforesaid
documents
were
filed.
Both
these
applications filed by the petitioner being
Paper No.225 Ga under Order XI Rule 21
and application No.229 Ga were considered
and dismissed by the lower appellate court
by its judgment and order dated 2.9.2023,
hence the present petition.

4. It has been contended by learned
Counsel
for
the
petitioner
that
the
provisions
of
Order
XI
C.P.C.
are
applicable in appeal also in view of Section
107 of the C.P.C. read with powers of the
Appellate Court conferred by Rule 33 of
Order XLI. It has been further contended
by learned Counsel for the petitioner that
since the provision of Order XI C.P.C. are
applicable to appeals filed under Section 96
of C.P.C., the Court below erred in law has
rejecting the application filed by the
petitioner under Order 11 Rule 21 C.P.C.
Before proceeding with the merits of the
case, it will be useful to look into the
relevant statutory provisions provides for
inspection of documents referred to in
pleadings or otherwise, which is as under :-

"15. Inspection of documents
referred to in pleadings or affidavits.-

Every party to a suit shall be
entitled on or before the settlement of issues
any time 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
3 All. Vipin Kumar Vs. Dr. Wahid Ahmad Qureshi & Ors.
1509
his pleadings or 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 an
otherwise as the Court shall think fit."

16. Notice to produce.-Notice to
any party to produce any documents
referred to in his pleading or affidavits
shall be in Form No. 7 in Appendix C, with
such variations as circumstances may
require.

17. Time for inspection when
notice given.-The party to whom such
notice is given shall, within ten days from
the receipt of such notice, deliver to the
party giving the same a notice stating a
time within three days from the delivery
thereof at which the documents, or such of
them as he does not object to produce, may
be inspected at the office of his pleader, or
in the case of bankers' books or other
books of account or books in constant use
for the purposes of any trade or business,
at their usual place of custody, and stating
which (if any) of the documents he objects
to produce, and on what ground. Such
notice shall be in Form No. 8 in Appendix
C; with such variations as circumstances
may require.

18. Order for inspection.-(1)
Where the party served with notice rule 15
omits to give such notice of a time for
inspection or objects 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 affidavit 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.

19. Verified copies.-(1) Where
inspection of any business books is applied
for, the Court may, if it thinks fit, instead of
ordering inspection of the original books,
order a copy of any entries therein to be
furnished and verified by the affidavit of
some person who has examined the copy
with the original entries, and such affidavit
shall state whether or not there are in the
original book any and what erasures,
interlineations or alterations:

Provided that, notwithstanding
that such copy has been supplied, the Court
may order inspection of the book from
which the copy was made.

(2) Where on an application for
an order for inspection privilege is claimed
for any document, it shall be lawful for the
Court to inspect the document for the
purpose of deciding as to the validity of the
claim of privilege [unless the document
relates to matters of State.]
1510 INDIAN LAW REPORTS ALLAHABAD SERIES

(3) The Court may, on the
application of any party to suit at any time,
and whether an affidavit of documents shall
or shall not have already been ordered or
made, make an order requiring any other
party to state by affidavit whether any one
or more specific documents, to be specified
in the application, is or are, or has or have
at any time been, in his possession or
power; and, if not then in his possession,
when he parted with the same and what has
become thereof. Such application shall be
made on an affidavit stating that in the
belief of the deponent the party against
whom the application is made has, or has
at some time had in his possession or
power the document or documents specified
in the application, and that they relate to
the matters in question in the suit, or to
some of them.

20.
Premature
discovery.-
Where the party from whom discovery of
any kind or inspection is sought objects to
the same, or any part thereof, the Court
may, if satisfied that the right to the
discovery or inspection sought depends on
the determination of any issue or question
in dispute in the suit, or that for any other
reason it is desirable that any issue or
question in dispute in the suit should be
determined before deciding upon the right
to the discovery or inspection, order that
such issue or question be determined first,
and reserve the question as to the discovery
or inspection."

5. Rule 21 C.P.C. of Order XI
C.P.C. provides for the effects of noncompliance with the order of discovery.
Rule 21 of Order XI is quoted as under :

"21. Non-compliance with order
for discovery.-(1) Where any party fails to
comply
with
any
order
to
answer
interrogatories,
or
for
discovery
or
inspection of documents, he shall, if a
plaintiff, be liable to have his suit dismissed
for want of prosecution, and, if a defendant,
to have his defence, if any, struck out, and
to be placed in the same position as if he
had
not
defended,
and
the
party
interrogating or seeking discovery or
inspection may apply to the Court for an
order to that effect and an order may be
made on such application accordingly,
after notice to the parties and after giving
them a reasonable opportunity of being
heard.

(2) Where an order is made under
sub-rule (1) dismissing any suit, the
plaintiff shall be precluded from bringing a
fresh suit on the same cause of action."

6. Section 107 of C.P.C. provide for
the powers of Appellate Court, which is
quoted as under:

Section 107. Powers of Appellate
Court.- (1)Subject to such conditions and
limitations as may be prescribed, an
Appellate Court shall have power-

(a) to determine a case finally;

(b) to remand a case;

(c) to frame issues and refer them
for trial;

(d) to take additional evidence or
to require such evidence to be taken.

(2) Subject as aforesaid, the
Appellate Court shall have the same
powers and shall perform as nearly as may
be the same duties as are conferred and
imposed by this Code on Courts of original
jurisdiction in respect of suits instituted
therein.

7. Rule 33 of Order XLI C.P.C.
quoted as under.

33. Power of Court of Appeal.-
The Appellate Court shall have power to
pass any decree and make any order which
ought to have been passed or made and to
3 All. Vipin Kumar Vs. Dr. Wahid Ahmad Qureshi & Ors.
1511
pass or make such further or other decree
or order as the case may require, and this
power may be exercised by the Court
notwithstanding that the appeal is as to
part only of the decree and may be
exercised in favour of all or any of the
respondents or parties, although such
respondents or parties may not have filed
any appeal or objection [and may, where
there have been decrees in cross-suits or
where two or more decrees are passed in
one suit, be exercised in respect of all or
any of the decrees, although an appeal may
not have been filed against such decrees]:

[Provided that the Appellate
Court shall not make any order under
section 35A in pursuance of any objection
on which the Court from whose decree the
appeal is preferred has omitted or refused
to make such order.]

8. Learned Counsel for the petitioner
submitted that the defendant will be
entitled to ask for inspection of a document
referred to in the plaint in order to
formulate his defence and any denial of this
right to inspect such document would
amount to denying him to an opportunity to
meet the case of the plaintiff as set up by
him in his plaint. In this regard, learned
counsel for the petitioner relied upon the
judgment of Andhra Pradesh High Court in
case of
Peoples Education Society,
Bombay v. The State of A.P. reported in
1971 (1) ALT 63. Learned counsel for the
petitioner has also relied upon the judgment
in case of Jankidas v. Kaushalya Devi
reported in AIR 1943 Lahore 207.

9. Contention of the learned counsel
for the petitioner are misconceived. Prior to
the amendment made by Act No. 46 of
1999, in Rue 15 of Order XI, every party to
the suit was entitled for inspection 'at any
time' but by the amendment as brought
about by the amending Act no. 46 of 1999,
the words 'at or before the settlement of
issues' have been substituted for the words
'at any time'. The amended Rules 15 of
Order 11 prescribes a time limit for the
purpose to inspect the document referred in
the pleadings or affidavits and i.e. 'at or
before the settlement of issues'. This means
that the inspection of document has to be
completed by the time issues are settled and
not later than that.

10. So far as the contention of the
learned counsel for the petitioner that
refusal to inspect the document would
amount to denial of opportunity to defend,
is also misconceived. In case of Peoples
Education Society, Bombay (Supra) , the
Andhra Pradesh High Court held in
paragraph no. 5 as under:

"5. The defendant, having regard
to the scope of Rule 15, will be entitled to
ask for inspection of the documents referred
to in the plaint in order to formulate his
defence, and any denial of this right to
inspect such documents would amount to
denying him an opportunity to meet the
case of the plaintiff as unfolded by him in
his plaint."

11. In case of Jankidas v. Kaushalya
Devi (Supra), it has been held that
inspection of document must be allowed
under Order 11, Rule 15 when the when the
document in question were themselves
material facts supporting the plaintiff's
claim and there was some sort of direct or
indirect reference to them in the plaint
itself, and it would be impossible for the
defendant to set up his defence unless he
was allowed to know before the trial what
were the precise contents. It has been
further held in Jankidas v. Kaushalya Devi
(Supra) that once the plaintiff makes
1512 INDIAN LAW REPORTS ALLAHABAD SERIES
reference to certain documents in the plaint,
the defendant will be entitled to ask for
inspection of those documents, it is for him
to think of the lines on which he can
formulate his defence and to deny the
defendant
of
an
inspection
of
the
documents referred to in the plaint would
be denying him the opportunity of fully
disclosing his defence. The defendant, is
therefore, entitled to ask for inspection of
the document referred to in the plaint
before filing his written statement. If they
are not made available for inspection, then
it follows that the plaintiff cannot rely upon
them thereafter.

12. There is no dispute as to the
principle of the law laid down by the
aforesaid judgments but both the judgments
were given prior to the amendment brought
in Rule 15 of Order 11 by amending the Act
No. 49 of 1999 which prescribes a time
limit for making an application for
inspection. Even earlier, in case of Nagpur
Glass Works Ltd. and others v. Shree
Onama Glass Works Ltd., Gondia reported
in AIR 1938 Nag 239 wherein the Nagpur
High Court has held in paragraph no. 5 as
under:

"5. This much however is certain:
whether a party proceeds under O. 11, R.
15 or under O. 11, R. 18(2) he must act
promptly and delay in itself may be a good
ground for refusing to grant time for the
filing of the written statement until after the
inspection has been made. It is of course
impossible to lay dawn any hard and fast
rule but these observations form a general
guide.

13. Coming to the facts of the present
case, an application has been moved by the
defendant/appellant at the stage of first
appeal filed under Section 96 C.P.C. by the
defendant/appellant after the suit was
decreed against him. Since the suit has
been
contested
on
merits
by
the
defendant/appellant
by
filing
written
statement and leading evidence there is
nothing remains to be disclosed to the
defendant/petitioner denial of which may
lead to denial of opportunity to the
defendant to prepare his defence.

14. So far as the contention of the
learned counsel for the petitioner is that in
view of Section 107 C.P.C. and the powers
of the appellate court under Order 41 Rule
33 C.P.C., the appeal is continuation of suit,
therefore, the court below ought to have
allowed the application filed by the
petitioner is also misconceived for the
reasons
that
though
the
appeal
is
continuation of the suit but in view of time
limit as fixed by the statute itself, i.e. Rule
15 of Oder 11, the said power cannot be
exercised at the appellate stage.

15. So far as the contention of the
learned counsel for the petitioner that in
case of Salem Advocate Bar Association
v. Union of India reported in 2005 (6)
SCC 344, the Supreme Court has held that
inspection of documents 'on or before the
settlement of issues' is discretionary and it
does not mean that the inspection cannot be
allowed after the settlement of issues, is
also, misconceived. Though the Apex Court
has held that the amendment is not
mandatory but such a power cannot be
exercised at the stage of appeal after
contesting of suit on merits and passing of
decree against the petitioner.

16. In view of the discussion as made
above, I am of the view that the court
below has committed no illegality in
dismissing the application of the petitioner.
3 All. Rakesh Kumar Awasthi & Ors. Vs. State of U.P. & Anr.
1513

17. The writ petition devoid of merits
and is, accordingly, dismissed.
----------
(2024) 3 ILRA 1513
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.02.2024

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Matter Under Article 227 No. 11211 of 2023

Rakesh Kumar Awasthi & Ors.
 ...Petitioners
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioners:
Sri Bal Ram Gupta

Counsel for the Respondent:
G.A.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Sections 156(3) &
173(8) - Constitution of India,1950 -
Article 227- Power of Magistrate to Order
Further Investigation - Petitioners challenged
the order dated 12.07.2023 by Metropolitan
Magistrate, Kanpur Nagar, rejecting a final police
report and directing further investigation in
Misc. Case No. 1124/2023, arguing no protest
petition was filed and the Magistrate lacked
power post-cognizance under Section 156(3).
The application, captioned as 'narazgi yachika'
under Section 173(8), was treated as a protest
petition.
Court
held
that
Section
173(8)
empowers
police
to
conduct
further
investigation post-report, and Magistrates can
order such investigation under Section 156(3)
read with Section 173(8) until trial commences,
as per Vinubhai Haribhai Malaviya Vs St. of
Gujarat, (2019) 17 SCC 1. Magistrate's options
upon receiving a police report include accepting
it, dropping proceedings, or directing further
investigation (Minu Kumari Vs St. of Bihar,
(2006) 4 SCC 359). No statutory bar restricts
this power, and Article 21 mandates ensuring
fair investigation. Order upheld as within
jurisdiction; petition dismissed for lack of merit.
(Paras 12-21)

Petition Dismissed.

Case Law Cited:

1. Vinubhai Haribhai Malaviya Vs St. of Guj.,
(2019) 17 SCC 1 (Para 13)

2. Minu Kumari Vs St. of Bihar, (2006) 4 SCC
359 (Paras 14, 15)

3. Vinay Tyagi Vs Irshad Ali, (2013) 5 SCC 762
(Para 15)

4. Hemant Dhasmana Vs CBI, (2001) 7 SCC 536
(Paras 16, 17)

5. Union Public Service Commission Vs S.
Papaiah, (1997) 7 SCC 614 (Para 17)

6. Bhagwant Singh Vs Commissioner of Police,
(1985) 2 SCC 537 (Para 17)

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Sri Bal Ram Gupta, learned
counsel for the petitioners and Sri Pankaj
Saxena, learned Additional Government
Advocate-I
appearing
for
the
Staterespondent.

2. The present petition has been filed
seeking to assail the order dated 12.07.2023
passed by the Metropolitan Magistrate,
Court No.9, Kanpur Nagar in Misc. Case
No.1124 of 2023 (Syed Tariq Umar Vs.
Rakesh
Kumar Awasthi
and
others),
whereby the final report submitted by the
police has been rejected and a direction has
been issued for further investigation.

3. The principal ground urged to
assail the aforesaid order is that no protest