JUDGMENT Majumdar, J. - The Petitioner in this case has asked for an order under Or. 11, r. 14 of the CPC that all books of account of the Respondent firm relating to the period between May 1st, 1943, and May 7th, 1946, be delivered to the custody of the Registrar of this Court and that he may be allowed to have the photograph of the relevant entries in those books and for other reliefs. The Petitioner alleges that in or about May, 1943, the Respondent firm, which carries on business as stock brokers, engaged him as an under-broker on the terms and conditions that the Petitioner should introduce customers and be answerable to the Respondent firm for the default of such customers and he would get 50 per cent. of the commissions earned on transactions between the Respondent firm and such customers. As an under-broker he introduced one Kali Pada Mukherjee to the Respondent firm, who on the 28th August, 1943, sold to the Respondent firm 100 shares of the Indian iron and Steel Co., Ltd. In February, 1945, the Respondent firm represented to the Petitioner that there was a default by Kali Pada Mukherjee who did not deliver 100 shares of Indian Iron and Steel Co., Ltd. and on such representation the Petitioner had to deliver 100 shares of Indian Iron and Steel Co., Ltd., on the 9th March, 1945, and the same was treated as delivery for and on behalf of the said Kali Pada Mukherjee. In fact the said Kali Pada Mukherjee had already delivered the 100 shares to the Respondent firm on the 28th September, 1943. The Petitioner thereupon asked for the return of the shares delivered by him but the Respondent firm failed and neglected to deliver the said 100 shares. As a result thereof the Petitioner suffered loss of Rs. 2,659-6-0. 2. The Petitioner instituted this suit on 20th May, 1946, against the Respondent firm for the recovery of the said sum of Rs. 2,659-6-0, as also the sum of Rs. 2,902-15-0 being the balance of tinder-brokerage commission due to the Petitioner between May, 1943 and 7th May, 1946, and damages for loss of custom and reputation. 3. The Notice of Motion was taken out on the 21st May, 1946, when no written statement had been filed or discovery made. 2,659-6-0, as also the sum of Rs. 2,902-15-0 being the balance of tinder-brokerage commission due to the Petitioner between May, 1943 and 7th May, 1946, and damages for loss of custom and reputation. 3. The Notice of Motion was taken out on the 21st May, 1946, when no written statement had been filed or discovery made. The case made out by the Petitioner in his affidavit in support of the said notice is that the details of the transaction of Kali Pada Mukherjee and the amount of under-brokerage commission would appear from the relevant books of account of the Respondent firm and that he apprehends that the Respondent firm may interfere, alter, secrete or otherwise deal with the books of account or entries therein unless promptly prevented. 4. The Respondent firm in its affidavit in opposition admitted that Kali Pada Mukherjee did in fact deliver the shares on the 28th September, 1943, and it paid off the price on the same day by a cheque but as the Petitioner did not return to the Respondent firm the receipted bill in respect of the said shares and so no remark was entered in the remark column in respect of the contract of the 28th of August. This occasioned a mistake. It further alleged with regard to the claim of the Petitioner for under-brokerage commission that without going through the accounts it could not be said what amount was due to him and that there were certain outstanding deliveries in respect of the transactions entered into between the customers introduced by the Petitioner and the Respondent firm and on full account being taken a large sum would be found due from the Petitioner to the. Respondent firm, after giving credit for the price of the 100 shares delivered by the Petitioner as mentioned above. 5. On these fads this application has been made but the Petitioner does not mention any grounds on which his apprehension regarding the alteration of the books of account as already referred to is based. 6. It is, however, admitted by the Respondent firm that the books in question are in their control or power. From the facts as alleged it appears to me that those books are likely to contain entries relating to the matters in question in this suit. Or. 6. It is, however, admitted by the Respondent firm that the books in question are in their control or power. From the facts as alleged it appears to me that those books are likely to contain entries relating to the matters in question in this suit. Or. 11, r. 14 provides as follows :-- It shall be lawful for the Court at any time during the pendency of any suit to order the production by any party thereto, upon oath, of such of the documents in his possession or power relating to any matter in question in such suit as the Court shall think right ; and the Court may deal with such documents when produced, in such manner as shall appear just. 7. Arguments have been addressed at length, on both sides with regard to the scope and application of this rule, and the points that arise for consideration on the argument are :-- (a) whether an order for production under Or. 11 r. 14 must follow an order as to affidavit of documents which is dealt with by Or. 11, r. 12 of the Code or can precede it. (b) whether the Court has any discretion in the matter of making the order of production of the documents or it is bound to make the order at the instance of the party provided the documents are in the possession of another party and they relate to the matter in question. 8. With regard to (a) above--No Indian case was cited where with reference to Or. 11, r. 14 the question in the present form had been decided. The only case on the point cited by Mr. Das Gupta in support of his contention on behalf of the Respondent was a decision of the Patna High Court in Bhaidyanath and others Vs. Bholanath Roy and others . Although the identical point was raised it was not required to be decided as the order for production was ultimately made by consent of parties. In my judgment the order to be made under Or. 11, r. 14 is not dependent upon any prior order being made under r. 12. Bholanath Roy and others . Although the identical point was raised it was not required to be decided as the order for production was ultimately made by consent of parties. In my judgment the order to be made under Or. 11, r. 14 is not dependent upon any prior order being made under r. 12. From an examination of the rules that precede and follow r. 14, it is clear that the order for production under r. 14 is an altogether different matter and distinct from an order for discovery and can be made by the Court at any time either on the application of a party or suo motto, provided the requisite conditions under the rule are satisfied. The use of the words "at any time" in the rule indicates that the legislature intended that there should be no limitation with regard to the point of time when the order could be made. If it was otherwise then the rule should have been appropriately worded. To give effect to the contention of Mr. Das Gupta would in my opinion be putting an unjustified restriction on the plain language of that rule. Consequently I am of opinion that the Court has power to make the order under Or. 11, r. 14 even before the written statement is filed or the order for discovery is made. 9. Regarding (b) :--Mr. H.C. Majumdar on behalf of the Petitioner contends that Judge has no discretion in the matter making an order for production of documents in the possession of another patty provided they relate to the matter in question and are not privileged. In support of that contention he has relied upon an English decision: Bustros v. White L. R. 1 Q. B. D. 423 C. A. (1876) and a decision of the Bombay High Court in Wallace v. Jefferson I. L. R. 2 Bom. 453 (1878). 10. He also contends that the words "it shall be lawful" in Or. 11, r. 14 are significant and they mean in substance that it shall not be lawful to do otherwise. He relies upon the decision In re: Neath and Brecot Railway Co. 9 Ch. Ap. 263 (1874) for the purpose and maintains that it is incumbent upon this Court to make an order for production and to do otherwise would be unlawful. 11. As the foundation of Mr. He relies upon the decision In re: Neath and Brecot Railway Co. 9 Ch. Ap. 263 (1874) for the purpose and maintains that it is incumbent upon this Court to make an order for production and to do otherwise would be unlawful. 11. As the foundation of Mr. Majumdar's argument is the case of Bustros v. White L. R. 1 Q. B. D. 423 C. A. (1876), it is necessary to examine that case minutely in order to find out what is the principle enunciated therein and whether it should be applied in the interpretation of Or. 11, r. 14 of our Code. That case was decided upon Or. 31, r. 11 of the Rules under Judicature Act (38 & 39 Vict., c. 77) which corresponds to Or. 31, r. 14 of the present Supreme Court Rules. Or. 11, r. 14 of our Code again is identical with Or. 31, r. 14 of the present Supreme Court Rules. Sir George Jessel. M.R., held in that case that under Or. 31, r. 11 a Judge has no discretion as to refusing to allow, at the instance of one party to the action, the production of documents in the possession of another party relating to the matter in question provided the documents are not privileged. The reasons for such decision are to be found in his judgment which I quote below :-- The rule which governs the practice under the Judicature Act is the 11th Rule of Or. XXXI . . . . . . It is to be observed that this rule was copied from sec. 18 of 15 and 16 Vict. c. 86 which settled the practice of the Court of Chancery which obtained from the year 1852 until last year when the Judicature Act came into force and enacted what should be the practice by which both Common Law & Equity Courts should be governed . . . . . . It was decided soon after the passing of the Act 15 & 16 Vict. C. 86 that sec. 18 did not alter the Rules of the Court of Chancery as to the right to production of documents and did not confer any discretionary power on the Judges; but the right remained unaffected and was exercisable at the option of the parties where no privilege could be established. C. 86 that sec. 18 did not alter the Rules of the Court of Chancery as to the right to production of documents and did not confer any discretionary power on the Judges; but the right remained unaffected and was exercisable at the option of the parties where no privilege could be established. The fact of the rule being copied from the Act of course makes it incumbent upon us to give it the same interpretation as that which has already been fixed by judicial decision upon the terms used; and, therefore even were our opinion different from what it is as to the construction of the Rule standing alone we should not be at liberty to put any other construction upon it than that which had been so long adopted. Besides, this it was to be observed that under sec. 25 sub-sec. 11 of Statute 36 & 37 Vic. C. 66 (i.e., the Judicature Act) if there be any difference between the practice of the Courts of Law and Equity the practice of the Courts of Equity will prevail. 12. It seems that what prevailed upon the learned Judge in deciding the case were that judicial decisions made soon after the passing of the Act 15 & 16 Vic., c. 86 of 1852 by which the terms used in the said Act were interpreted in a manner so as to bring them in conformity with the then existing practice in Equity Courts and also the continuance of that practice ever since in Chancery Courts. He accepted the interpretation of the rule according to the construction which for a long period of time was put upon if on the principle of Optima legum interpres consuetudo. 13. In 1879 in an action for redemption against the mortgagee in possession [Union Bank of London v. Manby 13 Ch. He accepted the interpretation of the rule according to the construction which for a long period of time was put upon if on the principle of Optima legum interpres consuetudo. 13. In 1879 in an action for redemption against the mortgagee in possession [Union Bank of London v. Manby 13 Ch. D. 239 C. A. (1879)], James, L.J., while making an order for production of documents before defence was delivered, observed that although there was a great deal to be said in support of the proposition that it ought not to be a matter of course for a Plaintiff to rush in at once with an application for production as soon as his claim has been delivered and the Court ought to have the power of saying that it will refuse production but in a suit of that description where there could be no doubt what the matter in question was, there appeared to be no reason why common order for production should not be made at once. It thus appears that at the time when these cases were decided the order for production was a common order having regard to the prevailing practice and the interpretation given of the rules then existing under the Judicature Act. My attention has not been drawn to any Indian decision when the application of the principle of Bustros v. White L. R. 1 Q. B. D. 423 C. A. (1876) to Or. 11, r. 14 of CPC was considered except the case of Wallace v. Jefferson I. L. R. 2 Bom. 453 (1878). There the Court in deciding an application for inspection of certain documents under sec. 130, C. P. C., of 1877, observed that . . . . ." In Bustros v. White L. R. 1 Q. B. D. 423 C. A. (1876) it was decided that under Or. 31, r. 11 of the rules under the Judicature Act a Judge had no discretion as to refusing to allow the production of documents in possession of a party and as sec. 130, C. P. C., 1877, appears to have been copied from Or. 31, r. 11 of the rules under Judicature Act, it was advisable to adopt the English ruling for its construction." That case was decided in 1878. But on a later case in 1905 [Vishnu Yeshawant Wagh v. New York Life Insurance Co. 7 Bom. 130, C. P. C., 1877, appears to have been copied from Or. 31, r. 11 of the rules under Judicature Act, it was advisable to adopt the English ruling for its construction." That case was decided in 1878. But on a later case in 1905 [Vishnu Yeshawant Wagh v. New York Life Insurance Co. 7 Bom. L. R. 709 (1905)] in an application under sec. 130, C. P. C. of 1882, the same High Court held that under that section the Court did possess a discretion but that discretion was to be exercised according to the practice of the Court. Though it does not appear from the report if any reference was made in course of the trial to the case of Bustros v. White L. R. 1 Q. B. D. 423 C. A. (1876) there does not seem to exist, in my opinion, any fundamental difference in the principle enunciated therein though there is some apparent difference. In Bustros v. White L. R. 1 Q. B. D. 423 C. A. (1876) it was held that the rule gives no discretion because practice was otherwise, while in the Bombay case it was that the rule gave a discretion but it was to be exercised having regard to the practice. It appears that the deciding factor in both the cases for interpreting the rules had been the existing practice. I do not know what practice prevailed in Bombay in 1878 or whether having regard to the then existing practice there, the decision in Wallace v. Jefferson I. L. R. 2 Bom. 453 (1878) was given under sec. 130, C. P. C, 1877. 14. I am not therefore prepared to rely upon that decision for my purpose. The decisions in Bustros v. White L. R. 1 Q. B. D. 423 C. A. (1876) and the later Bombay case could serve as guidance for interpreting Or. 11, r. 14, C. P. C., only when there is a uniform or established practice. 15. I have made enquiries, and ascertained that there is no established practice in this Court which denies the Court a discretion in the matter of making an order for production under Or. 11, r. 14, C. P. C., only when there is a uniform or established practice. 15. I have made enquiries, and ascertained that there is no established practice in this Court which denies the Court a discretion in the matter of making an order for production under Or. 11, r. 14, C. P. C. Moreover in his affidavit in opposition the Respondent alleged that the order asked for is contrary to law and practice of this Court and this allegation as to practice has not been denied by the Petitioner in his affidavit in reply. I shall therefore have to construe the language of Or. 11, r. 14, C. P. C "According to the intent of them that made it" independently of any question of practice. 16. The important words in Or. 11, r. 14, C. P. C., that determine the power of the Court are the words "it shall be lawful." Prima facie these words import discretion and they have been judicially construed as discretionary unless there be anything in the subject-matter to which they are applied or in any other part of the statute to show that they are meant to be imperative. [In Re: New Port Bridge [1859] 2 E. & E. 377]. Lord Cairns in Julius v. Bishop of Oxford [1879] 5 A. C. 214 at 222 observes that the words "it shall be lawful" are words making that legal and possible which there would otherwise be no right or authority to do. They confer a faculty or power and they do not of themselves do more than confer a faculty or power. But there may be circumstances as Lord Cairns further observed, "which may couple the power with duty and make it the duty of the person in whom the power is reposed to exercise that power when called upon to do so." In the same case Lord Penzance observed that the words "it shall be lawful" are distinctly word of permission. But there may be circumstances as Lord Cairns further observed, "which may couple the power with duty and make it the duty of the person in whom the power is reposed to exercise that power when called upon to do so." In the same case Lord Penzance observed that the words "it shall be lawful" are distinctly word of permission. I do not propose to refer to all the cases in which the words "it shall be lawful" as used in the different statutes have been judicially considered but suffice it to say that the effect of the cases in which the exercise of the power conferred was held to be obligatory was that though the statutes concerned had in terms only conferred power the circumstances were such as to create a duty and to show that the exercise of any discretion by the person empowered could not have been intended. One of such cases is the case Re: Neath and Brecon Rly. 9 Ch. Ap. 263 (1874) relied upon by Mr. Majumdar, where Lord justice James in construing the words "it shall be lawful" as used in sec. 85 of the Land Clan Act of 1845 said that "they meant in substance that it would not be lawful to do otherwise." This meaning was given having regard to the language of secs. 85 and 87 of the Land Clauses Act of 1845 which appears to me to have left no discretion with the Court. This meaning was not intended by his Lordship to be of general application. 17. Considering the language of the rule with reference to the context, I do not find any circumstances from which I could conclude that a duty was imposed upon the Court under Or. 11, r. 14, C. P. C. I therefore hold that the words "it shall be lawful" used in Or. 11, r. 14, C. P. C., are merely enabling. They confer a power on the Court which it could exercise in its discretion. I am not satisfied on the evidence that this is a case in which I should exercise my discretion in making an order for production as asked for. The application therefore stands dismissed with costs.