JUDGMENT 1. THE only point I have now been called upon to decide is : Should I or should I not, of my own motion, make an order upon the plaintiffs under section 30 of the Civil Procedure Code for discovery of documents and the like. 2. THE point arises in the following circumstances: on November 20, 1964, I rejected the defendant's petition dated November 7, 1964, (moved by his learned counsel, Mr. Banerjee), calling upon the plaintiffs to file a further and better affidavit of documents. So I did on the ground of the averments contained therein having been vague to a degree. At the same time, I felt that it might be a fit case where the Court should give appropriate directions suo molu under section 30 ibid. And I expressed myself so. Thereupon Mr. Kar, the learned counsel for the plaintiffs, submitted that in a suit inter parties no court could make an order suo motu and chat he had come that day only to meet the defendant's petition rejected by me, not the sort of order I was considering about. The former submission did not hold me. The latter one did. On the former submission, I observed: "It is, however, said that no court can pass an order suo motu. That, if I may say so with respect, is entirely wrong. It does not matter that the suit is inter parties, a point Mr. Kar stresses. Every suit is inter parties as a matter of course. Even so, section 30 is there and the Court without any application from either party may record a suitable order for discoveries, affidavits of documents and the like. " On the latter one, I observed: "Mr. Kar says-and very rightly too-that he has come here today to meet mr. Banerjee's application and not this sort of an order from the Court. May be, after I have heard Mr. Kar further I may not "be inclined to invoke my powers under section 30. " Again, "in any event, I do not make up my mind finally one way or the other. Mr. Kar is entitled to be heard ; so is Mr. Banerjee on this point. " And I postponed the hearing of the matter, so that I might have had the benefit of Mr. Kar's assistance-as also Mr. " Again, "in any event, I do not make up my mind finally one way or the other. Mr. Kar is entitled to be heard ; so is Mr. Banerjee on this point. " And I postponed the hearing of the matter, so that I might have had the benefit of Mr. Kar's assistance-as also Mr. Banerjee's-on the propriety of applying section 30 ibid to the facts here, in so far as the section prescribes powers of the court to make an order of its own motion. This is how the matter has come up before me. And I have had the assistance I was looking forward to, of Mr. Kar. and Mr. Banerjee, to both of whom I express my indebtedness. 3. BEFORE I deal with the points they have urged upon me, I notice only the outline of what this litigation is like. It is hardly necessary at this stage to recall in detail the facts which have led to the suit. The plaintiffs and the defendant carried on a partnership business under the name and style of Messrs. Ramballabh Rameshwar at Calcutta. On March 14, 1958, the defendant retired from the said partnership business on terms and conditions set out in what has been described in the plaint as a deed of retirement bearing the same date, namely, March 14, 1958. That was followed by adjustment of accounts--first up to April 7, 1957, as the result whereof Rs. 1,16,409. 12 p, was fund due and payable by the defendant to the plaintiffs, and thereafter again tip to March 14, 1958, the date of the defendant's retirement, as the result whereof a sura of Rs. 1,29,143-49 p. (inclusive of Rs. 1. 16,400-12 p. just noticed) was -found due and payable likewise To that has been added, in accordance with the implied terms of the partnership and the usual course of dealings between the partners, interest at 63/4 per cent a year from March 14, 1958, to September 5, 1960, "by way of annual rests" too, the total thus coming to: rs. 1,29,143-49 plus interest as above; 23. 524-58 rs. 1,52,668-07 the recovery of which the plaintiffs pray the court for, Alternatively, they pray for accounts being taken and a decree for the amount found due. 4. THE defendant denies that the accounts were adjusted ever, as alleged, that he has any obligation to pay interest. 1,29,143-49 plus interest as above; 23. 524-58 rs. 1,52,668-07 the recovery of which the plaintiffs pray the court for, Alternatively, they pray for accounts being taken and a decree for the amount found due. 4. THE defendant denies that the accounts were adjusted ever, as alleged, that he has any obligation to pay interest. Necessarily, therefore, he denies too that any amount is due or payable by him. In view of the pleadings, no more of which need be noticed, I felt on November 20, 1964, that, before the suit would proceed to trial, T should perhaps issue, of my own motion, appropriate directions. 5. NOW to the submission made at the Bar. Mr. Kar contends that the court's power to make an order of its own motion under section 30 ibid is not unfettered, but "subject to such conditions and limitations as may be prescribed', to quote the words the section opens with, ''prescribed" meaning prescribed by rules in the First Schedule to the Code. To Mr. Banerjee "prescribed" means prescribed even by the court or the judge. When, however I invite his attention to section 2 (16) of the Code which bears : "prescribed" means prescribed by rules: he is good enough not to press this point: But he emphasizes that the words used are : "as may be prescribed", not "as have been prescribed". To my thinking, that does not enable me to depart from the rules prescribed in the First Schedule; to the Code. As grammarians will say, the use of "may" in the expression "as may be prescribed" is as a principal verb, transitive, with infinitive " (to) be prescribed" as object. So used, "may" expresses the possibility of a prescription by the rules that follow. Indeed, that possibility is always there, such is the Code dividing itself into two parts. One is the Act proper containing the fundamental principles. And the other is the rules in the First Schedule containing details as to how the principles are to be carried out. No doubt, even the rules aforesaid shall have effect as if enacted in the body of the Code, [see section 121. But then the High Courts which cannot touch the first part-the Act proper-can make rules to annul, alter or add to all or any of the rules in the First Schedule. [see section 122 et seq. No doubt, even the rules aforesaid shall have effect as if enacted in the body of the Code, [see section 121. But then the High Courts which cannot touch the first part-the Act proper-can make rules to annul, alter or add to all or any of the rules in the First Schedule. [see section 122 et seq. ] And the High Courts have not been slow either in exercising this power generously, with the result that in many a matter some of the High Courts seem to have a Code of their own, so to say. Therefore, the expression "as may be prescribed" fits such a state of affairs nicely enough. The expression Mr. Banerjee suggests: "as have been prescribed", implying not the possibility of a prescription, but a completed prescription already there, would have been so out of joint with the rule-making powers of the High Courts. Hence, I accept Mr. Kar's contention that, under section 30, the court can give suitable directions, of its own motion, but only subject to such conditions and limitations as are prescribed by the rules in the First Schedule to the Code, to be precise, in the context of facts here, subject to such conditions and limitations the rules in Order 11 prescribe. So, if I ultimately decide to issue directions, of my own motion, I must see that I do not travel beyond what Order 11 prescribes. For example, I shall not direct, of my own motion, discovery of documents which, I am satisfied, are not necessary either for disposing fairly of the suit or for saving costs. Because, if I do so, I shall not subject myself to the conditions and limitations the proviso to rule 12 of Order 11 prescribes and thereby overstep the limits of section 30. 6. MR. Kar then relies on the two alternatives provided for in section 30: "either of its own motion or on the application of any party". Mr. Banerjee wants me to read this "or" as a disjunctive one-which indeed it is. But I do not read these two alternatives to mean that the pressing into service of one excludes the pressing into service of the other. The application of the party may not go far enough. Mr. Banerjee wants me to read this "or" as a disjunctive one-which indeed it is. But I do not read these two alternatives to mean that the pressing into service of one excludes the pressing into service of the other. The application of the party may not go far enough. It is then within the competence of the court to step in and to issue directives of its own motion supplementing what the party seeks, so that both sides may go to trial fully equipped with all the relevant documents relied upon by either, and thus helping the court to dispose of the suit fairly. Or take the converse case. The court is the first to issue directions suo motu under section 30. Counsel for a party finds that the directions do not go far enough. Will it not then be open to a party to make an application ? The answer cannot be in doubt. The party will have the complete freedom to apply. Nothing, therefore, turns on the two alternatives embodied in section 30- alternatives which do not appear to be mutually exclusive. I hold so. Mr. Kar contends that, as the defendant's application for a further and better affidavit of documents was rejected on November 20, 1964, "the applicability of sec. 30" [in so far as it provides for the court's power to give directions of ifs own motion] "was gone". I would have accepted this submission if I had seen a proviso in section 30 indicating that the court shall not make an order of its own motion when it has rejected an application by a party, or some such curtailing provision. Where an application of a party is rejected (as here) on the ground that it is vague, not specifying a single document for which a further and better affidavit is sought, nothing that I see in section 30 can prevent the court) from issuing suitable directions of its own motion without, of course, coming on the edge of Order 11. I shall not read in section 30 a proviso or a curtailing provision which does not exist. But, surely, no court will reject on merits an application of a party for disvery of documents and thereafter issue, of its; own motion, the very directives the party had prayed it for and the court had rejected. To do so is one thing. But, surely, no court will reject on merits an application of a party for disvery of documents and thereafter issue, of its; own motion, the very directives the party had prayed it for and the court had rejected. To do so is one thing. A completely different thing is to issue directives suo motu when a laggard party is not doing what it should. That is why section 30 is there vesting in the court the power to make orders, even suo motu, as may be necessary or reasonable in all matters relating to interrogatories, admissions, discoveries etc. That then is the test to go by. Is it necessary that the court should make an order? Is it reasonable that the court should do so ? If it is, the court will, application or no application by a party. I am, therefore, unable to accept Mr. Kar's contention i have noticed in the beginning of this paragraph. 7. GOBINDA Mohun Roy v. Magncram Bangur and Co., (I) A. I. R. 1940 Cal. 331, Mr. Kar cites, is a case in point where Edgily, J, observes at page 352: "It must have been obvious not only to the parties concerned but also to the presiding Judge that the decision - of the matter would depend to a very large extent upon documentary evidence and that, therefore, this was essentially a case in which recourse should have been taken to the provision of Order 11, Civil Procedure Code. It is, therefore, difficult to understand why in the absence of an application to this effect by either of the parties, the learned Munsif did not himself record the requisite orders for this purpose under section 30, civil Procedure Code.,. ". Mr. Kar calls it "only one such case any time" and submits that the question of the court issuing directions, of its own motion, arose "at the time of hearing", and not before hearing, as is the case before me. That does not appear to me to a correct reading of Edgley, J, decision. On August 31, 1939, the learned Munsif recorded an order fixing september 20, 1939, as the next, date in the carriage- of the suits and directing the parties "to take all necessary steps including interrogatories, discovery etc. preparatory to fixing the date of peremptory hearing": page 332 of the report. On August 31, 1939, the learned Munsif recorded an order fixing september 20, 1939, as the next, date in the carriage- of the suits and directing the parties "to take all necessary steps including interrogatories, discovery etc. preparatory to fixing the date of peremptory hearing": page 332 of the report. But he rejected on September 11, 1939, the plaintiff's application of the same date (September 11, 1939) for discovery. He rejected too on September 20, 1939, another application of the same date (September 20, 1939) by the same partly for discovery again. So the suits had not come to hearing yet. To quote from the judgment of Edgley, j. : "The learned Munsif appears to have been conscious at a later stage of the proceedings of the necessity of applying the ordinary rules of discovery, as is indicated by his order dated 31st August, 1939, but, although he recorded that particular order, i. e docs not appear of have been prepared to allow the parties a reasonable opportunity of giving effect to it, as is shown by his subsequent orders dated 11th September 1339 and 20th September 1939, by which he rejected the petitioner's applications for discovery" Pages 332 and 333 of the Report. Even if this decision had been confined to the stage of the hearing of the suits, it does not mean that the court is debarred from making orders of its own motion at an earlier stage. And this is what Mr, Banerjee contends, as surning like Mr. Kar that Edgley, J. was dealing with applications for discovery at the time of the hearing of the suits. The assumption does not appear to be correct, as I have just indicated. That apart, what is lost sight of in such an approach is the words "at any time" in section 30 : "Subject to such conditions and limitations as may be prescribed, the court may, at any time, either of its own motion or on the application of any party." Why say then that the court, of its own motion, can make orders only at the time of hearing ? Any time is not the time of hearing only. 8. MR. Kar reminds me that section 30 is not section 151 so that I can act ex debito justitiae. Who says it is ? not I. Nor Mr. Banerjee. Any time is not the time of hearing only. 8. MR. Kar reminds me that section 30 is not section 151 so that I can act ex debito justitiae. Who says it is ? not I. Nor Mr. Banerjee. All I say is : here is section 30 which confers on me the power to make an order, of my own motion ; and I shall make such an order, if I think fit. Mr. Kar will go so far as to submit that section 30 in so far as it enables the court to issue directives suo motu has become "meaningless" ; because, in practice, it is never resorted to in that manner. The practice of the court is no doubt good. But the mandate of the Code is better. And no practice of the court can override ever the mandate of the Code. For my part, I see in section 30 full of meaning. Whenever it is necessary or reasonable to make such order, the court shall do so, no matter that there is no application by either party, or that there is an inadequate application. 9. ONLY one other contention of mr. Kar remains to be noticed. The contention is : the case has not yet been opened even. No issues have been struck out either. So you cannot invoke section 30 in so far as it enables you to make an order of your own motion. You may do so later when the suit proceeds to hearing. I reject the contention in the form in which it is put. As I have already pointed out in paragraph 10 ante, it is open to me to act under section 30 "at any time". But on a further consideration of the materials before me, I find a difficulty. On December 7, 1961, the plaintiffs filed their affidavit of documents affirmed on December 6, 1961. And on things as they stand now, I do not know what other documents have any bearing on the matter in dispute, or, to quote the language" of rule 12 of: order 11, "relate to any matter in question" in the suit. It will not be right to go, as I had intended to, by the documents at page 34 of the defendant's affidavit dated November 14, 1964. It will not be right to go, as I had intended to, by the documents at page 34 of the defendant's affidavit dated November 14, 1964. And some of these documents are there in the plaintiffs' affidavit of documents dated December 6, 1961. So, it is but proper that the court should have a complete picture of the whole case before it decides to make an order of its: own motion. And that can only be had, in the circumstances obtaining now, when the case is opened in full and tine issues are settled. Hence, the court should defer such an order, if any, till then. I, therefore, accept the contention of Mr. Kar, not because the court lacks power to issue directions now, but because, on materials the court has had put before it so far, it should defer doing so. 10. THIS is one consideration. There is still another. Let not sub-rule (3) of rule 19 of Order 11 which enlarges the power of discovery be overlooked. This sub-rule bears: "The Court may, on the application of any party to a 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 at sometime 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." In order to attract this provision which can be called in aid by a party at any time, amongst other things, the petitioning party out for a discovery must name and specify the documents -which the defendant before me did not do in his petition dated November 7, 1964-a petition which I had rejected on November 20, 1964. In vain, therefore, Mr. In vain, therefore, Mr. Banerjee refers me to the Privy Council decision in (2)Ral Dwarka Nath Sarkar Bahadur and (mother v, Haji Mahomed Akbar and Qrs., 18 C. W. N. 1025, where Lord Parker of Waddington observes at pages 1027-28: "For the purpose of working out a partnership decree, each party to the action is bound to produce and discover all documents in his possession relating to the partnership." And impliedly holds that an application by the plaintiff in the action for discovery of the documents in the possession of the dependents ought not to have been refused. Neither Mr. Kar nor I seek to escape from this proposition. The plaintiff's affidavit of documents dated December 6, 1961, is already there, if you say, it is insufficient, show its insufficiency by specifying the documents which are not there and which ought to have been there. You have not done so. And your application has been rejected, i shall not, therefore, unsay what I said then rejecting the said petition. In the result, I make no order now of my own motion. Nor do I make any order as to costs, because I had initiated the matter. 11. MUCH though I would have wished to set down this suit of I960 on a firm date for hearing-and very early too-I cannot do so. Because, the work assigned to me now does not include "other Suits" within which the instant one falls. What remained part-heard with me was an interlocutory matter only-not the suit itself. So, that way too, i cannot assume jurisdiction to try it. Let the suit which was in my peremptory list in november 1964, therefore, appear in the appropriate peremptory list next week.