Bombay High CourtWP/16288/2024disposed off

Reshma Fernandez Legal Heir Of Late Sunita Pieres Fernandez v. Lubna Taher Baig D/O Ahmed Batliwala And ORS

2024-11-18Hon'Ble Shri Justice Sandeep V. Marne14 pages

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 16288 OF 2024 Ms. Reshma Fernandez ... Petitioner

Versus

Ms. Lubna Taher Baig and Ors.

... Respondent Mr. Alukik R. Pai a/w Mr. Shanmukh Puranik & Varad Jadhav , for the Petitioner.

Mr. Pradeep J. Ramchandani, for the Respondent Nos. 1, 2, & 3.

CORAM

: SANDEEP V. MARNE, J.

DATE : 18 November 2024.

ORAL ORDER :

1) The Petition challenges order dated 15 June 2024 rejecting the application at Exhibit-47 seeking direction to the plaintiff to produce documents. Petitioner-Defendant No. 2 filed one more application at Exhibit-54 for production of document, which has been rejected by order dated 16th October 2024, which is also subject matter of challenge in the present petition.

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2) At the outset, it must be observed that order dated 16th October 2024 is apparently not made available to the parties. However, the Petitioner has expressed grave urgency for pressing the petition today, on account of which this Court is constrained to proceed ahead with hearing of the Petition in absence of availability of order dated 16th October 2024. Thus, the petition is being decided in absence of availability of order dated 16th October 2024 on account of request being made by the Petitioner for consideration of petition for passing of interim order therein in absence of copy of the Order dated 16th October 2024.

For considering Petitioner's prayer for interim relief, this Court was required to hear detailed submissions canvassed by the learned counsel appearing for rival parties and this Court is convinced that the present Petition is gross abuse of process of law and it is not necessary to await production of copy of order dated 16 October 2024, so as to save further wastage of judicial time by conducting another round of hearing after availability of copy of order dated 16 October 2024. 3) I have heard Mr. Pai, the learned counsel appearing for the Petitioner and Mr. Ranchandani, learned counsel appearing for Respondents/Plaintiffs 4) Petitioner/Defendant No. 2 has embarked upon a journey of filing series of applications at the stage where the suit is for filing of her evidence upon completion of evidence of Plaintiff.

The suit is filed by the Plaintiffs for seeking recovery of possession of the suit premises on three grounds of arrears of rents, bonafide requirement and non-user.

pleaded by the Plaintiffs that Plaintiff No. 1 is desirous of returning to India from U.A.E. Sharjah and that she does not have any other premises for residence in Mumbai, except the suit premises. Defendant No. 2 filed Written Statement in June 2021 inter-alia contending that Plaintiff No. 1 has several other premises for her residence at Mumbai. Simultaneously, with filing of the Written Statement in June 2021, Defendant No. 2 did not think it necessary to file any application calling upon Plaintiff No. 1 to produce any documents relating to ownership or possession of premises other than the suit premises. With framing of the issues, the trial in the suit commenced and Plaintiff No. 1 filed her affidavit of evidence on 29th November 2022. Defendant No.

1 commenced crossexamination of Plaintiffs' witness on 17 December 2022 and went on cross-examining her on 7 different dates upto 7th February 2023. During currency of such prolonged cross-examination spanning over seven dates from 17 December 2022 till 7 February 2023, Defendant No. 2 again did not think it prudent to file any application to call upon Plaintiff No. 1 to produce any documents. After passage of more than 1 year of Plaintiff's evidence being complete Petitioner came up with idea of filing the first application for seeking direction to Plaintiff No. 1 to produce documents on 2 March 2024.

5) Mr. Pai would submit that the application for production of documents by Plaintiffs became necessary in the light of production of copy of release-deed dated 11th June 2015 by Plaintiff No.1, which according to Mr. Pai disclosed necessary information relating to ownership and possession of several other premises by Plaintiff No. 1. However, perusal of the praecipe filed by the Plaintiff on 1 February 2022 3 of

would indicate that copy of the said release deed dated 11 June 2015 was handed over to Defendant No. 2 on 1 February 2023. However, for more than 1 year of receipt of copy of the Release Deed, Plaintiff No.1 did not think it necessary to file any application seeking production of any documents based on the information allegedly revealed from the said release-deed. Instead, Defendant No. 2 continued cross-examination of Plaintiffs' witness on 1st February 2023 and 7th February 2023. The crossexamination of Plaintiffs witness was finally concluded after 7 long dates spanning over one year on 7th February 2023.

6) After conclusion of the Plaintiffs' evidence and when the turn of Defendant No. 2 arrived for production of her own evidence, Defendant No. 2 again did not think it necessary to seek production of any documents by Plaintiff No.1 for over a year. The application at Exhibit-47 was filed by Defendant No. 2 seeking production of as many as 45 documents on 2 March 2024. It would be relevant to consider the documents that Defendant No. 2 sought to produce from Plaintiff No. 1. They are as under:

SR.

NO.

PARTICULARS 1.

Income tax returns along with notes and annexures of the Plaintiff No.1 No.1 for 01.04.2016-31.03.2017 filed in Sharjah, U.A E 2.

Income tax returns along with notes and annexures of the Plaintiff No.1 for 01.04.2017-31.03.2018 filed in Sharjah, U.A.E 3.

Income tax returns along with notes and annexures of the Plaintiff No.1 for 01.04.2018-31.03.2019 filed in Sharjah, U.A.E 4.

Income tax returns along with notes and annexures of the Plaintiff No.1 for 01.04.2016-31.03.2017 filed in India.

Income tax returns along with notes and annexures of the Plaintiff No.1 for 01.04.2017-31.03.2018 filed in India.

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Income tax returns along with notes and annexures of the Plaintiff No.1 for 01.04.2018-31.03.2019 filed in India.

Income tax returns along with notes and annexures of the Plaintiff No.1's husband for 01.04.2016-31.03.2017 filed in Sharjah, U.A.E. Income tax returns along with notes and annexures of the Plaintiff No.1's husband for 01.04.2017-31.03.2018 filed in Sharjah, UAE 9.

Income tax returns along with notes and annexures of the Plaintiff No. I's husband for 01.04.2018-31.03.2019 filed in Sharjah, U.A.E. 10.

Income tax returns along with notes and annexures ul the 10. Plaintiff No. 1's husband for 01.04.2016-31.03.2017 filed in India Income tax returns along with notes and annexures of the Plaintiff No.I's husband for 01.04.2017-31.03.2018 filed in India. 12.

Income tax returns along with notes and annexures of the Plaintiff No. 1's husband for 01.04.2018-31.03. 2019 filed in India 13.

Statements of bank accounts from 01.04.2016 upto 31.03.2019 held or operated, jointly or singly by the Plaintiff No.1 in India, alongwith certificate u/s 2A of the Banker's Book of Evidence Act, 1891 14.

Statements of bank accounts from 01.04.2016 upto 31.03.2019 held or operated, jointly or singly by the Plaintiff No.1 in Sharjah UAE, alongwith certificate u/s 2A of the Banker's Book of Evidence Act, 1891. 15.

Statements of bank accounts from 01.04.2016 upto 31.03.2019 held or operated, jointly or singly by the Plaintiff No.1's husband in India, alongwith certificate us 2A of the Banker's Book of Evidence Act, 1891. 16.

Statements of bank accounts from 01.04.2016 upto 31.03.2019 held or operated, jointly or singly by the Plaintiff No.l's husband in Sharjah UAE, alongwith certificate u/s 2A of the Banker's Book of Evidence Act, 1891. List of immovable properties held, jointly or singly or which there is a beneficial interest of the Plaintiff No.1 India. 18.

List of immovable properties held, jointly or singly or in which there is a beneficial interest of the Plaintiff No.1 in Sharjah UAE. 19.

List of immovable properties held, jointly or singly or in which there is a beneficial interest of the Plaintiff No.1's husband in India 20.

List of immovable properties held, jointly or singly or in which there is a beneficial interest of the Plaintiff No.1's husband in Sharjah UAE. 21.

List of movable properties held, jointly or singly or in which there is a beneficial interest of the Plaintiff No. 1 in India. 22.

List of movable properties held, jointly or singly or in which there is a beneficial interest of the Plaintiff No.1 in Sharjah UAE. 23.

List of movable properties held, jointly or singly or in which there is a beneficial interest of the Plaintiff No.1's husband in India. 24.

List of movable properties held, jointly or singly or in which there is a beneficial interest of the Plaintiff No.1's husband in Sharjah UAE.. 25.

Documents showing annual expenses of the Plaintiff No.1 in India. 5 of

26.

Documents showing annual expenses of the Plaintiff No.1 in Sharjah UAF. 27.

Documents showing annual expenses of the Plaintiff No.1's husband in India.

Documents showing annual expenses of the Plaintiff No.1's husband in Sharjah UAE.

29.

Air Tickets for travel of the Plaintiff No.1 between Sharjah UAE and Mumbai India from 01.04.2016 upto 31.03.2019 30.

Air tickets for travel of the Plaintiff No.1's husband between Sharjah UAE and Mumbai India from 01.04.2016 upto 31.03.2019. 31.

Documents witnessing collection of rent by the Plaintiffs for the suit premises from 31/12/1998 till the date of filing of the eviction suit. 32.

Documents showing payments made for educational and other related expenses for Plaintiff No.1's son namely Isa Tahir Baig for his education in High School, Houston, U.S.A.

33.

Documents showing payments made for educational and other related expenses for Plaintiff No.1's son namely Imaad Tahir Buig for his education in Canada.

34.

Documents showing payments made for educational and other related expenses for Plaintiff No.1's son namely Imaad Tahir Baig for his education in Dubai and Canada.

35.

Income tax returns along with notes and annexures of the Plaintiff No.2 from 01.04.2017-31.03.2018 filed in India.

36.

Income tax returns along with notes and annexures of the Plaintiff No.2 from 01.04.2018-31.03.2019 filed in India.

37.

Statements of bank accounts from 01.04.2016 upto 31.03.2019 held or operated, jointly or singly by the Plaintiff No.2 in India, alongwith certificate u/s 2A of the Banker's Book of Evidence Act, 1891. 38.

List of immovable properties held, jointly or singly or in which there is a beneficial interest of the Plaintiff No.2 in India. 39.

List of movable properties held, jointly or singly or in which there is a beneficial interest of the Plaintiff No.2 in India. 40.

Income tax returns along with notes and annexures of the Plaintiff No.3 from 01.04.2016-31.03.2017 filed in India.

41.

Income tax returns along with notes and annexures of the Plaintiff No.3 from 01.04.2017-31.03.2018 filed in India.

42.

Income tax returns along with notes and annexures of the Plaintiff No.3 from 01.04.2018-31.03.2019 filed in India.

43.

Statements of bank accounts from 01.04.2016 upto 31.03.2019 held or operated, jointly or singly by the Plaintiff No.3 in India, alongwith certificate u/s 2A of the Banker's Book of Evidence Act, 1891. 44.

List of immovable properties held, jointly or singly or in which there is a beneficial interest of the Plaintiff No.3 in India. 6 of

45.

List of movable properties held, jointly or singly or in which there is a beneficial interest of the Plaintiff No.3 in India. 7) A cursory glance through the list of 45 documents sought to be produced by Defendant No. 2 by way of application at Exhibit-47 would reveal that what was being initiated by Defendant No. 2 was nothing short of a roving inquiry. Production of documents such as air travel tickets, annual expenses of Plaintiff No. 1 and her husband, their Income Tax returns filed in Sharjah and India, statements of their bank accounts in India and Sharjah, their movable properties in India and Sharjah, expenses incurred on education of their son, etc. undoubtedly indicates an attempt on the part of Defendant No.

2 to seek all sort of irrelevant documents, which are unnecessary for deciding the issues relating to bonafide requirement, arrears of rents or non-user. It is also difficult to fathom as to how the said 45 documents such as Air Tickets, Bank Statement, Income Tax Returns, movable properties, expenses on education of son, etc. has any semblance of relation to the release-deed dated 11th June 2015, copy of which was made available to Defendant No. 2 on 1st February 2023. It is therefore difficult to believe that the endeavor of Defendant No. 2 to seek production of 45 documents vide application at Exhibit-47 was, in any manner, triggered by supply of copy of release-deed on 1st February 2023.

Since production of irrelevant documents was sought at a belated stage after conclusion of evidence of the Plaintiff, the Trial Court rightly proceeded to reject the application at Exhibit-47 by order dated 15 June 2024.

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8) The Defendant No. 2 acquiesced in the order dated 15 June 2024 by not challenging the same. Instead, Defendant No. 2 was advised to file a fresh application for production of 18 further documents by filing application at Exhibit-54 on 3rd August 2024. The documents which were sought to be produced by application at Exhibit-54 are as under: SR.NO.

PARTICULARS 1.

Legible copy of the document's showing that the Plaintiff No.1 is not entitled to or has insufficient accommodation to reside in flat no. 25, 3 floor, Zehra Manzil, Cadell Road, Mahim (W), Mumbai--400 016 2.

Legible copy of the document/s disclosing that the names and residential proof of the person residing in flat no.25, 3rd floor, Zehra Manzil, Cadell Road, Mahim (W), Mumbai-400 016. 3.

Legible copy of the sanctioned Plan of the flat no. 25, 3rd floor, Zehra Manzil, Cadell Road, Mahim (W), Mumbai-400016. 4.

Legible copy of the document's showing that the Plaintiff No. 1 is not entitled to o has insufficient accommodation to reside in flat no. 04, 1 floor, A.P. Trust Building, 53/55, 2nd L.J. Cross Road, Mahim (W), Mumbai-400 016.

Legible copy of the document/s disclosing that the names and residential proof of the person residing in flat no.04, 1st floor, A.P. Trust Building 53/55, 2nd L.J. Cross Road, Mahim (W), Mumbai-400 016.

Legible copy of the sanctioned Plan of the flat no.04, 1st floor, A.P. Trust Building, 53/55, 2nd L.J. Cross Road, Mahim (W), Mumbai-400 016.

Legible copy of the document/s showing that the Plaintiff No. 1 is not entitled to or has insufficient accommodation to reside in the flat received as alternate accommodation in lieu of flat nos.5A, in the building known as Altaf Mansion, Cadell Road, Mumbai-400 016. 8.

Legible copy of the document/s disclosing that the names and residential proof of the person residing in the flat received as alternate accommodation in lieu of 5A. in the building known as Altaf Mansion, Cadell Road, (W), Mumbai-400 016.

Legible copy of the sanctioned Plan of the flat received as alternate accommodation in lieu of flat no. 5A, in the building known as Altaf Mansion, Cadell Road. Mahim (W), Mumbai-400016. 10.

Legible copy of the document/s showing that the Plaintiff No. 1 is not entitled to or has insufficient accommodation to reside in the flat nos. 5A & 5B, Aftab Manzil. 5th Floor, 47/49, Cadell Road V.S. Marg, 8 of

Mahim (W), Mumbai-400 016.

11.

Legible copy of the document/s disclosing that the names and residential proof of the person residing int he flat nos.5A & 5B, Aftab Manzil, 5th floor, 47.49, Cadell Road, V.S. Marg, Mahim (W), Mumbai400 016. 12.

Legible copy of the sanctioned Plan of the flat received as alternate accommodation in lieu of flat no.s5A & 5B, Aftab Manzil, 5th floor, 47.49, Cadell Road, V.S. Marg, Mahim (W), Mumbai-400 016, 13.

Legible copy of the document/s showing that the Plaintiff No.1 is not entitled to or has insufficient accommodation to reside in flat no.12B, Star Mansion, Claire Road, Byculla Bridge, Mumbai-400 008. 14.

Legible copy of the document/s disclosing that the names and residential proof of the person residing in flat no.12B, Star Mansion, Claire Road, Byculla Bride, Mumbai-400 008.

15.

Legible copy of the sanctioned Plan of the flat no.12B, Star Mansion, Claire Road, Byculla Bridge, Mumbai-400 008. 16.

Legible copy of the document/s showing that the Plaintiff No.1 is not entitled to or has insufficient accommodation to reside in flat no.1A, 1st floor, 38 Shirin Manzil, Shitladevi Mandir Road, Mahim (W), Mumbai-400 016.

17.

18.

Legible copy of the sanctioned Plan no.1A, 1st floor, 38 Shirin Manzil, Shitladevi Mandir Road, Mahim (W), Mumbai-400 016. 9) Perusal of the list of documents sought to be produced by application at Exhibit-54 would indicate that what is sought under most of the items in the list, is a mere 'information' and not 'documents' in real sense. To illustrate, the first document in the list is "Legible copy of the document's showing that the Plaintiff No.1 is not entitled to or has insufficient accommodation to reside in flat no. 25, 3 floor, Zehra Manzil, Cadell Road, Mahim (W), Mumbai--400 016". There can be no document in negative form to indicate that Plaintiff No. 1 is not entitled to or has insufficient accommodation in respect of a flat. Thus what is really sought to be extracted is 'information' and not production of 'document'. More 9 of

importantly, this information is sought to be extracted after completion of cross-examination of Plaintiff No. 1. Similar is the case in most of the 18 items in the list forming part of application at Exhibit-54. The Trial Court has proceeded to reject the application at Exhibit-54 by order dated 16th October 2024.

10) Considering the conduct of Defendant No. 2 in filing repeated applications for production of documents by Plaintiff No. 1 at a belated stage after completion of evidence of Plaintiffs, as well as, irrelevant nature of documents sought to be produced, in my view, no error is committed by the Trial Court in rejecting both the applications at Exhibits-47 and Exhibit-54.

11) Mr. Pai would rely upon provisions of Order 11 Rule 14 of the Civil Procedure Code, 1908 and would particularly highlight use of the phrase 'at any time during pendency of the suit' in support of his contention that mere passing of stage of completion of evidence of Plaintiffs cannot alone be the ground for rejection of application for production of documents. He would further submit that since plaintiffs have filed suit for bonafide requirement and that therefore it is their bounden duty to disclose all the properties owned or possessed by them and that the real objective behind filing application for production of document is merely to throw sunlight on the factual position of the present case. In my view, however Defendant No. 2 had adopted a defense right since the inception of the proceedings that Plaintiff No. 1 owns or possesses various other premises and that she is not in need of the suit premises for her of

residence. However, no efforts are made by Defendant No. 2 to seek production of documents for a period of three long years after filing of the written statement. Defendant No. 2 went on cross-examining Plaintiffs' witness on seven different dates spanning over one year, but did not think it necessary to seek production of any documents from Plaintiff No. 1. The plea adopted by Defendant No. 2 that production of documents is necessitated on account of supply of copy of Release Deed on 1st February 2023 also does not inspire confidence. As observed above, the application at Exhibit-47 sought all sort of irrelevant documents and information for conducting a roving inquiry having no semblance of connection with the so-called information transpiring from ReleaseDeed supplied on 1st February 2022.

I am therefore of the view that the real objective behind filing applications at Exhibits-47 and 54 is to delay decision of the suit. It appears that in addition to the said two applications, Defendant No. 2 has also filed a separate application on 24th October 2024 for framing of additional issue relating to maintainability of the suit. Since the application is pending, it would be premature for this Court to make any observations about the same. However, at the same time, this Court cannot turn a blind eye to the conduct of Defendant No. 2 in filing repeated applications in the year 2024 with a view to delay decision of the Suit.

12) Defendant No. 2 has conducted lengthy cross-examination of Plaintiffs' witness and has given various suggestions relating to availability of alternate premises with Plaintiff No. 1. She cannot be permitted to conduct a roving inquiry by seeking either the documents such as air tickets, educational expenses of son, income tax returns, bank of

statement, movable properties, nor can seek to extract information in as sought in application at Exhibit-54. In my view therefore, no patent error can be traced in the orders passed by the Trial Court on 15th April 2024 and 16th October 2024.

13) What remains now is to deal with the series of judgments relied on by Mr. Pai during the course of his lengthy submissions. In support of his contention that truthfulness of case should guide the Court to ascertain truth by using processes such as discovery of documents, he has relied upon Apex Court judgment in Maria Margardia Sequeira Fernandes and Others Vs. Erasmo Jack de Sequeira (Dead) through Lrs. He has also relied upon judgment of the Apex Court in Basanagouda Vs. Dr. S.B. Amarkhed and Others.

2 in support of his contention of scope of powers under Order 1 Rule 14 of the Code is very wide. He has also relied upon judgment of Apex Court in Shri. M.L. Sethi Vs. Shri. R. P Kapur 3 in support of his contention that in absence of any specific objections to production taken on the ground of privilege or prejudice, production of documents should be granted, if they throw light on controversy. He has also relied upon judgment of the Apex Court in Union of India Vs. Ibrahim Uddin and Another 4 in support of his contention that adverse inference cannot be drawn unless production of documents is sought and the same is not produced despite order passed by a Court. He is also relied upon judgment of this Court in Narendra Gulabrao Zade Vs. Shiocharan Ghashiram Gupta since deceased Through LRs.

5 in support of contention that it is for the (2012) 5 SCC 370 (1992) 2 SCC 912 (1972) 2 SCC 427 (2012) 8 SCC 148 2011(1) Mh.L.J. 839 of

landlord to explain insufficiency of the premises available to him in a suit based on the ground of bonafide requirement. Lastly, he has relied upon the judgment of the Apex Court in Bhaichand Ratanshi Vs. Laxmishanker Tribhoyan 6 in support of his contention that both the parties are required to lead evidence on the issue of comparative hardship. I fail to understand as to how reliance by Mr. Pai on the above judgments would assist the case of the Petitioner here. In the present case, the very objective of Defendant No. 2 in filing series of applications is to delay the decision of the suit. As observed above, most of the documents, production of which was sought by Application at Exhibit 47 by her are irrelevant. Many of the documents do not even exist.

She has thus filed applications in a casual manner for the purpose of setting in motion a roving inquiry by seeking to extract information from Plaintiff No. 1 about their income, their travel details, amounts spent on education of son, expenses incurred by the couple, movable properties possessed by them, etc. which are wholly irrelevant to the issue involved in the present case. By subsequent application at Exhibit 54, what is sought is not even documents, but mainly information as to how various flats are not sufficient for use by Plaintiff No.1. Considering the nature of documents (some of them not being documents) and the stage at which its production is sought, in my view the Trial Court is justified in rejecting both the applications at Exhibits-47 and Exhibit-54. As observed above, Defendant No.

2 acquiesced in order dated 15th June 2024 passed on application at Exhibit-47 by not challenging the same.

October 2024, she is now attempting to take a volte-face and challenge the order dated 15th June 2024 passed on application at Exhibit-47. 14) The conspectus of the above discussion is that the Trial Court has rightly rejected both the applications at Exhibits-47 and 54. I do not find any palpable error in the orders passed by the Trial Court for this Court to interfere in exercise of extraordinary jurisdiction under Article 227 of the Constitution of India. Writ Petition is thus devoid of merits. Valuable judicial time of the Court was wasted in considering lengthy arguments canvassed on behalf of Petitioner for deciding the present petition. Therefore, dismissal of the Petition cannot be without consequences. The Writ Petition is accordingly dismissed with costs of Rs.25,000/- to be paid by the Petitioner to the original Plaintiffs within a period of four weeks.

[SANDEEP V. MARNE, J.] Digitally signed by NEETA SHAILESH SAWANT Date:

2024.11.21 15:56:09 +0530 NEETA SHAILESH SAWANT of