- (1.) HEARD learned counsels for the parties.
(2.) SINCE, the controversy involved in this batch of misc. appeals, is identical, therefore, same are being decided by this common judgment, however, the facts of Civil Misc. Appeal No.1313/2008-Chiman Singh Vs. State of Rajasthan & Ors., are taken illustratively as a leading case. The appellants-plaintiffs have filed the present appeals being aggrieved by the impugned order dated 07.08.2008 passed by learned trial court in a matter arising out of application filed by the plaintiffs under Order 11 Rule 21 CPC r/w Section 151 CPC on 04.08.2008 in Temporary Injunction application filed by them under Order 39 Rule 1 and 2 CPC, whereby the plaintiffs prayed that the defence of the defendant-Forest Department of State Government may struck out in terms of Order 11 Rule 21 of CPC as they failed to make discovery in terms of order passed by the learned trial court on 25.03.2008 allowing the application of the plaintiffs under Order 11 Rule 12 CPC, which was filed on 11.03.2008. The present plaintiff-appellant, Chiman Singh and other plaintiffs-appellants in connected appeals, filed suits for seeking declaration and permanent injunction in respect of land situated in the area known as "Ravti", Tehsil & District Jodhpur. The learned court below by the impugned order dated 07.08.2008 while rejecting the plaintiff's application under Order 11 Rule 21 CPC, held that discovery made by the defendant-Forest Department and affidavit filed by them in the reply to the application under Order 11 Rule 12 CPC dated 11.03.2008 filed by the plaintiffs, satisfied the order dated 25.03.2008 passed by the learned trial court and, therefore, it cannot be said to be a case of non-compliance of the order for discovery passed by the learned trial court on 25.03.2008; and consequently, the defence cannot be struck out as prayed by the plaintiffs. The trial court further said that the question as to whether the land in question belonged to Forest Department or not, will be decided prima-facie at the time of deciding the temporary injunction applications filed by the plaintiffs under Order 39 Rule 1 and 2 CPC along-with the main suit. Mr. G.R. Singhvi, learned counsel appearing on behalf of appellants-plaintiffs submitted that discovery made by the defendant-Forest Department and affidavit produced along-with reply to the questions Nos. 1, 2 and 3 framed by the learned trial court vide the order dated 25.03.2008, was not complete discovery made by them; and consequently there was a non-compliance on the part of the defendant- Forest Department and its defence deserved to be struck out in terms of Order 11 Rule 21 CPC and the learned court below has erred in passing the impugned order.
(3.) ON the other hand, Mr. M.A. Siddiqui, for Forest Department, Mr. S.G. Ojha and Mr. Yashwant Mehta, appearing on behalf of respective respondents, submitted that discovery made by the defendant-Forest Department in pursuance to the order dated 25.03.2008 satisfied the directions of the learned trial court in the said order dated 25.03.2008 as noted in the impugned order dated 07.08.2008 itself; and it is the satisfaction of the learned trial court that whether such discovery was in accordance with orders passed on application under Order 11 Rule 12 CPC or not. Therefore, such discretionary order holding that the discovery made by the defendant-Forest Department satisfied the order dated 25.03.2008, does not require any interference by this Court in the present appeals unless it is shown to be perverse. More so, they submitted that question whether the land in dispute belongs to Forest Department or not as per the notification issued by the State Government is a question, which is likely to be decided prima-facie now in temporary injunction applications, which are still pending consideration before the trial court below under Order 39 Rule 1 and 2 CPC as well as in the main suit, which will be decided after evidence is led and proved by the rival parties. While issuing notices of the present appeal a coordinate bench of this Court had stayed the further proceedings of the suit vide ad-interim order dated 11.09.2008 and about four years have passed since then and trial of the suit is still stayed at that stage. After hearing the learned counsel for the rival parties and upon perusal of the impugned order dated 07.08.2008, this Court is of the opinion that the impugned order passed by the learned trial court does not require any interference by this Court in its appellate jurisdiction at this stage. The court below has arrived at the satisfaction within the discretion of the learned court. The trial court may even refuse to direct such discovery, if it is of the view that such discovery is not necessary or not necessary at that stage of the suit; and upon such satisfaction, the learned trial court may by such order, either generally or limited, to certain class of documents, as may, in its discretion thought fit, may direct such discovery. The application under Order 11 Rule 12 CPC was disposed of by the learned trial court on 25.08.2008 and in pursuance to which, the defendant-Forest Department made the discovery and filed their affidavit in this regard. The plaintiffs were, however, not satisfied with this discovery and moved to the court by application under Order 11 Rule 21 CPC on 04.08.2008 praying that for the alleged non- compliance with the order for discovery dated 25.03.2008, the defence of the defendant- Forest Department may be struck out. ;