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1967 DIGILAW 22 (PAT)

Firm Balmukund Puran Mall v. Firm, Fateh Chand Dharamchand

1967-02-28

N.L.UNTWALIA

body1967
Judgment N.L.Untwalia, J. 1. This is an application in revision by the plaintiff firm directed against the order dated the 19th April, 1963, of the court below granting permission to the defendants to inspect the entire Bahi Khatas of the petitioner except the entries which may relate to the plaintiffs secret business in respect of which a list was directed to be filed by 22-4-63. 2. The plaintiff has filed the suit for obtaining the decree against the defendants for a sum of Rs. 1416.53 paise as per accounts given in the plaint from their account books. It is doubtful whether strictly speaking, in view of the provisions of law contained in Sec.34 of the Evidence Act, it can be said that the entries in the books of account of the plaintiffs firm are the basis of the suit. But, to all intents and purposes and according to the well know practice prevailing in the courts below, for the purposes of production and inspection of documents such entries are generally treated as the basis of the suit. It is because of that the procedure prescribed in Rule 17 of Order 7 of the Civil Procedure Code, hereinafter called the Code, is followed and so was this procedure followed in this case too. Thereafter, the defendants applied for inspection of the Bahi Khatas, as it appears, under Sub-rule (1) of Rule 18 of Order 11 of the Code. I take it that this must have been done after following the procedure prescribed in Rule 15 of Order 11 of the Code. Be that as it may. the court directed the plaintiff to produce the Bahi Khatas for the relevant years in question for inspection of the defendants. The Bahi Khatas were produced and a controversy arose between the parties when they were being inspected. According to the plaintiff, the defendants were entitled to inspect only the relevant entries in the Bahi Khatas which related to their transaction while according to the defendants, they were entitled to inspect any part of theirs. The court below has by and large, made the order in favour of the defendants. The plaintiffs, therefore, has come up in revision. 3. The court below has by and large, made the order in favour of the defendants. The plaintiffs, therefore, has come up in revision. 3. Order 11, Rule 18 (1) reads as follows: "Where the party served with notice under Rule 15 omits to give such notice of a time for inspection or objects to give inspection or offers inspection elsewhere 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." In order to understand the meaning of this provision, Rule 15 of Order 11 may also be read, which says: "Every party to a suit shall be entitled at any time to give notice to any other party, in whose pleadings or affidavits reference is made to any document, to 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 seme to be put in evidence on such terms as to costs and otherwise as the court shall think fit." Reading the two provisions together, it is clear that the defendants are entitled to inspect the documents referred to in the pleadings, in this case, in the plaint of the plaintiff. The question is what is the meaning of the word "document" in these rules. 4. The question is what is the meaning of the word "document" in these rules. 4. Order 7, Rule 14 (1) provides: Where a plaintiff sues upon a document in his possession or power, he shall produce it in court when the plaint is presented, and shall at the same time deliver the document or a copy thereof to be filed with the plaint." Rule 17 of that Order reads thus: (1) "Save in so far as is otherwise provided by the Bankers Books Evidence Act, 1891, where the document on which the plaintiff sues is an entry in a shop-book or other account in his possession or power. the plaintiff shall produce the book or account at the time of filing the plaint together with a copy of the entry on which he relies. (2) The court, or such officer as it appoints in this behalf, shall forthwith mark the document for the purpose of identification: and, after examining and comparing the copy with the original, shall, if it is found correct, certify it to be so and return the book to the plaintiff and cause the copy to be filed." On a careful examination of these provisions it would follow that if the document on which the plaintiff sues is an entry in a shop-book or other account, then the whole book or account has got to be produced for the purpose of comparison and return of the book in accordance with the procedure prescribed in Rule 17 of order 11 of the Code. But, the document spoken of in Rule 14, and Rule 17, means only the entry or entries in the shop-book or other accounts. It cannot and does not mean the whole shop book or the whole book of account. That being so, the same meaning has got to be given to the word "document" in Rule 15 of Order 11. Consequently, it is clear that if the party wants an inspection of the document under Sub-rule (1) of Rule 18 of Order 11 of the Code, the document which has been referred to in the pleading or affidavit, he can inspect only the particular entry or entries referred to in the pleading and not other portions of the account books, which are not documents which can be said to have been referred to in the pleading. If a party wants to inspect other documents, here, in this case, the other entries of the account books, he has got to take recourse to the procedure prescribed in Sub-rule (2) of Rule 18 of Order 11 of the Code which says: "Any application to inspect documents, except such as are referred to in the pleadings, particulars or affidavits 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." The party has got to found his case upon an affidavit as to the documents he wants to inspect and that he is entitled to inspect them. There is an inhibition on the court not to allow 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. In other words, the court can permit inspection of such documents only if it shall be of opinion that it is necessary either for disposing fairly of the suit or for saving costs and not otherwise. As observed by the learned Munsif in his order under revision, the defendants wanted inspection of the other entries in order to find the sale rate at which Jowar was sold during the relevant period as also for the purpose of showing that the books of account were not maintained in regular course of business and they have been fabricated. It was further submitted on their behalf that they are legally entitled to look into the whole books of account for the relevant period and to get the whole book entries exhibited, if necessary. All these submissions and claims made on behalf of the defendants were irrelevant for directing inspection of the documents as referred to in the pleading of the plaintiff. All these submissions and claims made on behalf of the defendants were irrelevant for directing inspection of the documents as referred to in the pleading of the plaintiff. Such an order could be made either under Sub-rule (2) of Rule 18 of Order 11, as I have said above, or under the other relevant provisions of the said Order of the Code to which I need not make any specific reference as it is unnecessary for me to do so. But, for an order under Sub-rule (1) of Rule 18 of Order 11, the burden could not be cast on the plaintiff to show as to what particular entries related to their allegedly secret business to which they were objecting or claiming the same sort of privilege. The learned Munsif has not said in his order that he was satisfied on the issue raised in the suit to permit inspection of the entries in the books of account of the plaintiff other than those referred to in the pleading nor does it seem that the defendants had made a proper and legitimate prayer by filing a proper application in that regard, because I find from their rejoinder application filed on the 18th April, 1963, that the whole of the claim based was with reference to the provisions contained in Sub-rule (1) of Rule 18 of Order 11 of the Code. 5. I may lend some support to the view 1 have expressed above by a scant observation of Jessel M. R. in the case of Quilter V/s. Heatly, (1883) 23 Ch. D. 42 at p. 49. Of course, the moot question before the court of appeal there was as to whether inspection of the document referred to in the pleading or affidavit could be allowed to the defendants before the filing of their statement m defence. The trial Judge had disallowed it and while allowing the prayer in regard to item 3, which consisted of books of the plaintiff mentioned in paragraph 13 of the plaint, Jessel M. R. said: "There must be an order for production of items 2, 3 and 5, with the usual liberty to seal up such parts of the books as do not contain the entries referred to by the plaintiff in his statement of claim". In the same case Lord Justice Lindley has pointed out-- "There it, a broad distinction between a general application for discovery of documents relating to the matters in question in the action and an application for production of documents referred to in the pleadings". I may point out that the provisions contained in order 31 of the Rules of the Supreme Court in England then in force when Quilters case was decided were almost, identical to the relevant provisions prescribed in Order 11 of our Code. 6 in the result, I allow the applica tion and set aside the order of the learned Munsif. As the other side has not appeared, I shall make no order as to costs.