CHUNILAL DAHYABHAI v. DHARAMSHI NANJI — 1968 DIGILAW 53 (GUJ)

J. M. SHETH, J. ( 1 ) THIS is a revision petition filed by the Petitioner (Original defendant No. 1) against the opponents. The opponent No. 1 is the original plaintiff and the opponents Nos. 2 to 4 are the original defendants Nos. 2 to 4. This revision petition is filed under sec. 115 of the Civil Procedure Code against the order passed by the learned 2nd Joint Civil Judge Junior Division Rajkot in a Civil Suit No. 427 of 1967 below exhibit 37 directing the petitioner to give inspection of all documents referred to in his affidavit Exh. 23 to the plaintiff and to take copies thereof on or before 7-3-1968. ( 2 ) THE advocates appearing on behalf of the opponents M/s. I. R. Nanavati and H. M. Mehta raised a preliminary objection regarding the maintainability of this revision petition under sec. 115 of the Civil Procedure Code. The preliminary objection is raised on two grounds:- (1) It cannot be said that it is a case decided. (2) If it is a case decided it cannot be said that the Court has acted illegally or with material irregularity in the exercise of its jurisdiction. In brief the second objection is that there has been no illegality committed by the Court in the exercise of its jurisdiction. It also cannot be said that the Court has acted with material irregularity in the exercise of its jurisdiction. At the most it could be said that there has been an error of law committed in the decision given and hence clause (c) of sec. 115 of Civil Procedure Code could not have any application. In support of the preliminary objection reliance is mainly placed on the decision of a Division Bench of this Court in Shah Prabhudas Ishwardas v. Shah Bhogilal Nathalal VIII G. L. R. 649. ( 3 ) BEFORE I advert to the decision cited above in support of the contention regarding preliminary objection I first purpose to refer to the relevant provisions of Order 11 Rule 18 and Order 11 Rule 20 of the Civil Procedure Code which are material for our purpose. ( 3 ) BEFORE I advert to the decision cited above in support of the contention regarding preliminary objection I first purpose to refer to the relevant provisions of Order 11 Rule 18 and Order 11 Rule 20 of the Civil Procedure Code which are material for our purpose. Material part of Order 11 Rule 18 runs as under:-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 than at the officer 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 is of opinion that it is not necessary either for disposing fairly of the suit or for saving costs. (2) 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 ill his affidavits 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 suitor for saving costs. ( 4 ) THE material part of Order 11 Rule 20 for our purpose runs as under:-WHERE the party from whom discovery of any kind or inspection is sought objects to the same or any part thereof the Court may if satisfied that the right to the discovery or inspection sought depends on the determination of any issue or question in dispute in the suit or that for any other reason it is desirable that any issue or question in dispute in the suit should be determined before deciding upon the right to the discovery or inspection order that such issue or question be determined first and reserve the question as to the discovery or inspection. In the instant case it is the case of the opponents that the petitioner is the power of attorney holder. In the instant case it is the case of the opponents that the petitioner is the power of attorney holder. The suit is for rendition of accounts in relation to the acts done by the petitioner in his capacity as a power of attorney holder of the opponents and for recovering the sum that may be found due on taking accounts. The petitioner has challenged the factum of his holding a power of attorney for the opponents. It is significant to note that the opponent No. 1 has filed the suit in question. The opponent No. 1 had sought for discovery of documents on an affidavit. The Court ordered the petitioner to file an affidavit of documents and accordingly discovery was made. Thereafter the opponent No. I gave an application Exh. 37 for inspection of the documents referred to in the affidavit of documents and to permit him to take copies The petitioner raised an objection in regard to inspection of those documents. The Court overruled his objection and passed the impugned order ( 5 ) IN regard to the preliminary objection on the first ground the learned advocates for the opponents strenuously contended that the interlocutory order must be an order deciding directly or indirectly a right or obligation pleaded in a suit meaning thereby a claim made in the plaint and denied in the written statement or vice versa. In brief an Impugned order must be an order which must have an effect on such right or claim directly or indirectly and if such a controversy is the subject matter of the impugned decision it could be said that it is a case decided within the meaning of those words referred to in sec. 115 of the Civil Procedure Code. Learned advocate Mr. Mehta urged that the word controversy referred to in the decision of a Division Bench of this High Court was not a controversy of the nature contemplated by the provisions of Order 11 Rules 18 and 20. In brief his contention was that the controversy contemplated was a controversy which is likely to be the subject matter of the decision in regard to the rights of or obligations arising out of the pleadings meaning thereby that it must be a controversy in relation to the lights pleaded or obligations arising in the suit itself. In brief his contention was that the controversy contemplated was a controversy which is likely to be the subject matter of the decision in regard to the rights of or obligations arising out of the pleadings meaning thereby that it must be a controversy in relation to the lights pleaded or obligations arising in the suit itself. There are several matters which could be the subject matters of controversy as for example a right to recover the suit amount a right to take accounts an obligation to reader accounts meaning thereby a liability to render accounts. If there is any such controversy and the Court has decided such a controversy arising between the parties that decision could be said to be a case decided within the meaning of sec. 115 of the Civil Procedure Code. the present controversy is not of that nature; it is a controversy where one party claims a right of inspection and the other objects to it on the ground that it is not necessary for disposing fairly of the suit or for saving costs. It could not therefore amount to a case decided. ( 6 ) BEFORE I advert to the decision of a Division Bench of this Court relied upon by the learned advocate for the opponents I first propose to refer to the decision of the Supreme Court in the case of S. S. Khanna v F. J. Dillon A. I. R. 1964 p. 497 as a Division Bench of this Court also has laid-down a certain ratio relying upon the said decision of the Supreme Court. His Lordship Shah J. speaking for himself and Sarkar J. after referring to clauses (a) (b) and (c) of sec. 115 of the Civil Procedure Code has observed as under :the section consists of two parts the first prescribes the conditions in which jurisdiction of the High Court arises i. e. there is a case decided by a subordinate Court in which no appeal lies to the High Court the second sets out the circumstances In which the jurisdiction may be exercised. But the power of the High Court is exercisable in respect of any case which has been decided. The expression case is not defined in the Code nor in the General Clauses Act. It is undoubtedly not restricted to a litigation in the nature of a suit in a Civil Court. But the power of the High Court is exercisable in respect of any case which has been decided. The expression case is not defined in the Code nor in the General Clauses Act. It is undoubtedly not restricted to a litigation in the nature of a suit in a Civil Court. Bat it includes a proceeding in a Civil Court in which the jurisdiction of the Court is invoked for the determination of some claim or right legally enforceable. On the question whether an order of a Court which does not finally dispose of the suit or proceeding amounts to a case which has been decided. . there has arisen a serious conflict of opinion in the High Courts in India and the question has not been directly considered by this Court. After referring to several decisions of the various High Courts in para 8 it has been observed as under :an analysis of the cases decided by the High Courts-their number is legion-would serve no useful purpose. In every High Court from time to time opinion has fluctuated. The meaning of the expression case must be sought in the nature of the jurisdiction conferred by sec. 115 and the purpose for which the High Courts were invested with it. At page 501 in para 11 it has been observed :the expression case is a word of comprehensive import it includes civil proceedings other than suits and is not restricted by anything contained in the section to the entirety of the proceedings in a civil Court. To interpret the expression case as an entire proceeding only and not a part of a proceeding would be to impose a restriction upon the exercise of powers of superintendence which the jurisdiction to issue writs and the supervisory jurisdiction are not subject and may result in certain cases in denying relief to an aggrieved litigant where it is most needed and may result in the perpetration of gross injustice. No doubt Their Lordships had to deal with a case in relation to a decision given by the subordinate Judge by an interlocutory order that the suit filed by the plaintiff for recovery of the amount advanced to the defendant was not maintainable it was manifestly a decision having a direct beating on the right of the plaintiff to a decree for recovery of the loan alleged to have been advanced by him. which he says the defendant agreed to repay and if the expression case includes a part of the case the order of the subordinate Judge must be regarded as a case which has been decided. At the same time it could not be said that it is a ratio of the Supreme Court decision that the controversy decided must be a controversy of the nature as has been sought to be urged by the learned advocate appearing on behalf of the opponents. ( 7 ) MR. Mehta invited my attention to the observations made by His Lordship Hidaytullah J. (as he then was) at p. 505. Those observations are as under :this general power as shown above was intended to be used otherwise and the word case does not mean a concluded suit or proceeding but each decision which terminates a part of the controversy involving a matter of jurisdiction. Where no question of jurisdiction is involved the Courts decision cannot be impugned under sec. 115 for it has been said repeatedly a Court has jurisdiction to decide wrongly as well as rightly. These observations in my opinion do not restrict the meaning of the word controversy as has been sought to be urged. In toe decision of s Division Bench of this Court after referring to the observations made in the aforesaid Supreme Court decision at pages 653-654 the following observations have been made by Bhagwati J. (as he then was) speaking for the Division Bench : these observations clearly show that a case decided within the meaning of sec. 115 is not confined to an entire suit or proceeding but includes an issue or a part of a suit or proceeding and if any order decides an issue or a part of a suit or proceeding it would be a case decided within the meaning of sec. 115. It is evident that the present case is not a case where the said impugned order decides an issue or part of a suit or proceeding. However material observations made further therein are as under :if an order decides some right or obligation which is in controversy between the parties in the suit or proceeding a part of the suit or proceeding whether it forms the subject matter of a separate issue or not would be decided and that would be a decision of a case as contemplated by sec. 115. Such an order may decide the right or obligation expressly in so many terms or it may decide the right or obligation as a matter of direct and necessary consequence as in the case before the Supreme Court. But in either case it would be a case decided as the right or obligation would be determined and a part of the suit or proceeding relating to the controversy as to such right or obligation would be decided. ( 8 ) LEARNED advocate Shri Shah has laid emphasis on these observations and urged relying upon certain observations made in para 5 to which I will make reference presently that the said controversy must be in regard to the right or obligation claimed or pleaded by the party in a suit meaning thereby in the plaint or in the written statement. There are observations In para 5 as under :applying this test let us see whether the order impugned in the present case can be said to be a case decided within the meaning of sec. 115. Does the order decide an issue or a part of the suit by determining some right or obligation in controversy between the parties in the suit ? The answer must clearly be in the affirmative. The question whether the document Exhibit 4/1 was a promissory note and therefore inadmissible in evidence by reason of insufficiency of stamp formed the subject matter of issue No. 3 and the decision of this question had a direct bearing on the right of the plaintiffs to recover the settled amount from the defendants. The document exhibit 4/1 being the foundation of the plaintiffs claim the direct and inevitable consequence of it is that the plaintiffs claim must fail and the order therefore determined by its direct and immediate impact the sight of the plaintiffs to recover the amount claimed by them from the defendants which right was in controversy in the suit. It is no doubt true that in that case the decision which was sought to be revised was a decision which would have a direct and immediate impact on the right of the plaintiffs to recover the amount claimed. The case had to be decided in relation to the facts of that case. It is no doubt true that in that case the decision which was sought to be revised was a decision which would have a direct and immediate impact on the right of the plaintiffs to recover the amount claimed. The case had to be decided in relation to the facts of that case. In my opinion the ratio laid down in that decision does not necessarily indicate that in a case like the present case where the controversy between the parties is in regard to a right to inspection or an obligation of giving Inspection a decision in regard to such controversy will not amount to a case decided. The decision does not expressly lay down such a position of law and that position is also not by necessary implication indicated in that decision. ( 9 ) LEARNED advocate Mr. Shah appearing for the petitioner relied upon a decision of Raju J. in the case of Shantilal Chunilal Shah v. Shantilal Fulchand Shah and another IV G. I. R. p. 698. It has been observed in that decision that an order passed on an interlocutory application amounts to a case decided. The fact that the third clause of sec. 115 Civil Procedure Code refers to the powers of revision where the subordinate Court acted in the exercise of its jurisdiction illegally or with material irregularity would show that the words case decided would include an order passed by a subordinate Court in the exercise of Its jurisdiction and which is not the final order. In the body of the judgment at p. 699 decisions of several High Courts have been referred to by Raju J. and the following observations have been made:-THE question whether the decision of a Court on an interlocutory petition amounts to a case decided has been the subject of conflict. The learned Judges of the Pull bench of the Allahabad High Court considered that the word case could not be given a wide meaning so as to cover an interlocutory order passed by a Court during the trial of the suit. But the Calcutta High Court and the Madras High Court are of the contrary view. After referring to the provisions of sec. 115 of Civil Procedure Code at p. 700 it has been observed that the words case decided have not been defined in the Civil Procedure Code. But the Calcutta High Court and the Madras High Court are of the contrary view. After referring to the provisions of sec. 115 of Civil Procedure Code at p. 700 it has been observed that the words case decided have not been defined in the Civil Procedure Code. The word case is also not defined in the Civil Procedure Code. But the fact that the third clause of sec. 115 Civil Procedure Code refers to the powers of revision where the subordinate Court acted in the exercise of its jurisdiction illegally or with material irregularly would show that the words case decided would Include an order passed by a subordinate Court In exercise of its jurisdiction and which is not the final order. It has been observed by Their Lordships of the Supreme Court in Chaube Jagdish Prasad v. Ganga Prasad A. I. R. 1959 S. C. 492 at page 497 as follows:- sec. 115 Civil Procedure Code empowers the High Court in cases where no appeal lies to satisfy itself on three matters: (a) that the order made by the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise its jurisdiction; (c) that in exercising the jurisdiction the Court has not acted illegally that is in breach of some provision of law or with material irregularity that is by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. Per Sir John Beaumont in Venkatagiri Ayyangar v. Hindu Religious Endowment Board Madras 76 Ind. App. 67 at p. 73 A. I. R. 1949 P. C. 156 at p. 158 ). Therefore if an erroneous decision of a subordinate Court resulted in its exercising jurisdiction not vested in it by law or failing to exercise the jurisdiction so vested or acting with material irregularity or illegality in the exercise of its jurisdiction the case for the exercise of powers of revision by the High Court is made out. In Joy Chand lal Babu v. Kamalaksh Chaudhury. 76 Ind. App. In Joy Chand lal Babu v. Kamalaksh Chaudhury. 76 Ind. App. 131: (A. I. R. 1949 P. C. 239) the subordinate Court gave an erroneous decision that the loan was a commercial loan and therefore refused to exercise jurisdiction vested in it by law and the Privy Council held that it was open to the High Court to interfere in revision under sec. 115. Sir John Beaumont said at p. 142 (of Ind. App.): (at p. 242 of A. I. R.) :-THERE have been a very large number of decisions of Indian High Courts on sec. 115 to many of which Their Lordships have been referred. Some of such decisions prompt the observation that High Courts have not always appreciated that although error in a decision of a subordinate Court does not by itself involve that the subordinate Court has acted illegally or with material irregularity so as to justify interference in revision under sub-sec. (c) nevertheless if the erroneous decision results in the subordinate Court exercising a jurisdiction not vested in the by law or failing to exercise a jurisdiction so vested a case for revision arises under sub-sec (a) or sub- sec. (b) and sub-sec. (c) can be ignored. The cases of Babu Ram v. Munnalal 49 All. 454: (A. I. R. 1927 All. 358) and Hari Bhikaji v. Naro Vishvanath I. L R. 9 Bom. 432 may be mentioned as cases in which a subordinate Court by its own erroneous decision (erroneous that is in view of the High Court) in the one case on a point of limitation and in the other on a question of res-judicata invested itself with a jurisdiction which in law it did not possess and the High Court held wrongly Their Lordships think that it had no power to interfere in revision to prevent such a result. In the present case Their Lordships are of the opinion that the High Court on the view which it took that the loan was not a commercial loan had power to interfere in revision under sub-sec. (b) of sec 115. In Keshardeo Chamira v. Radha Kissen 1953 S. C. R. 136: (A. I. R. 1953 S C. 23) both these judgments of the Privy Council as also the previous judgment in Amir Hassan Khan v. Sheo Buksh Sing 11 Ind. App. 237 (PC) and Balkrishna Udayar v. Vasudeva Aiyar 44 Ind. App. (b) of sec 115. In Keshardeo Chamira v. Radha Kissen 1953 S. C. R. 136: (A. I. R. 1953 S C. 23) both these judgments of the Privy Council as also the previous judgment in Amir Hassan Khan v. Sheo Buksh Sing 11 Ind. App. 237 (PC) and Balkrishna Udayar v. Vasudeva Aiyar 44 Ind. App. 261: (A. I. R. 1917 P. C. 71) were reviewed and it was held that sec. 115 C. P. Code applied to matters of jurisdiction alone the irregular exercise or non-exercise of it or the illegal assumption of it. Thus if a subordinate Court has jurisdiction to make the order it made and has not acted in breach of any provision of law or committed any error of procedure which is material and may have affected the ultimate decision then the High Court has no power to interfere but if on the other hand it decides a jurisdictional fact erroneously and thereby assumes jurisdiction not vested in it or deprived itself of jurisdiction so vested then the power of interference under sec. 115 Civil P. C. becomes operative. It is therefore clear that if a material irregularity is committed by the subordinate Court as regards some error of procedure In the course of the trial which is material and may have affected the ultimate decision that order can be revised. This clearly shows that the words case decided Include an order relating to some error of procedure This decision lends support to the argument advanced by the learned advocate Shri Shah and negatives the contention urged on behalf of the opponents. I do not find that this decision runs in any manner counter to the ratio laid-down by the Division Bench of this Court in the aforesaid decision. ( 10 ) IN a later decision in the case of Lallubhai Virchand v. Ratilal Bhikhabhai and ors VIII G. L. R. p. 851 Raju J. has observed:-AN interlocutory order passed in the course of a proceeding in a suit or appeal may be a case decided. It may not amount to a case decided under Order 13 Rule 3 of the Civil Procedure Code. Whether it may amount to a case decided would depend upon the facts of each case. No doubt that case was decided by Raju J. on 8-2-1963. It may not amount to a case decided under Order 13 Rule 3 of the Civil Procedure Code. Whether it may amount to a case decided would depend upon the facts of each case. No doubt that case was decided by Raju J. on 8-2-1963. The ratio of that decision is the same as that in the earlier decision of his. ( 11 ) A Revision Bench of the Lahore High Court in the case of Sadaqut Ali v. Mohammad Sajjad Ali A. I. R. 1929 p. 257 has observed. The question as to whether a particular person should or should not be next friend is really ancillary to the suit itself and it is a case finally decided for that particular proceeding. It stands on the same footing as giving or refusing leave to sue as a pauper and therefore under sec. 115 High Court has to interfere. The Bombay High Court has also taken the same view in the case of Bai Atrani v. Deepsing Baria B. L. R. XVII p. 1097 A Division Bench of the Bombay High Court has observed:-THE application to the High Court against the order granting the temporary injunction was competent under sec. 115 of the Civil Procedure Code since the order was a case decided in which no appeal lies within the meaning of the section. The word case in sec 115 of the Civil Procedure Code of 1908 is a word is wide or comprehensive import and clearly covers a far larger area than would be covered by such a word as suit or appeal Inasmuch as sec 115 is merely an empowering section granting certain jurisdiction to the High Court and as the use or exercise of that jurisdiction will within the prescribed limits be regulated by the discretion of the High Court the section ought to receive rather a liberal than a narrow interpretation. The Lahore High Court has also in the case of Harichand Anand and Co v. The Singer Manufacturing Co. A. I. R. 1933 Lahore 1046 observed:-THE proceedings for a temporary injunction are taken under order 39 and must be deemed to be a case and therefore open to revision as they do not directly affect the ultimate decision of the suit one way or the other. A. I. R. 1933 Lahore 1046 observed:-THE proceedings for a temporary injunction are taken under order 39 and must be deemed to be a case and therefore open to revision as they do not directly affect the ultimate decision of the suit one way or the other. ( 12 ) A single judge of the Nagpur High Court had an occasion to interpret the word case referred to in sec 25 of the Provincial Small Cause Courts Act in the case of Laxmanrao Trimbakrao Chandawarkar v. Gayadin Sheoprasad A I R. 1937 Nagpur 136 At p. 137 observations made in 27 G L R. 251 have been quoted and it is held The word case in sec 115 Civil Procedure Code is wide enough to cover an interlocutery order and therefore it should also be wide in enough in sec. 25 Provincial Small Cause Courts Act. ( 13 ) I am therefore of the opinion that the word controversy need not be given a restricted meaning as has been contended by the learned advocates appearing on behalf of the opponents. The word controversy in my opinion is used in the general sense and it has got to be given a comprehensive meaning unless there is some thing to indicate that a narrow and restricted meaning was intended. It was urged by Mr. Nanavati that if the word controversy is given such a wide meaning the logical consequence would be that in case a Court decides an adjournment application and grants an adjournment or refuses an adjournment it could be said that there was a decision in regard to a controversy between the parties. The controversy would be only whether the adjournment should be given or refused and hence the question would be whether such older be revised by this Court in the exercise of its revisional jurisdiction under sec. 115 of the Civil Procedure Code. While deciding such an application no procedural right is even decided. It cannot be said that in a proceeding some controversy regarding some right which arises in relation to the procedure has been decided. A query was made by me to M/s. Nanavati and Mehta to consider a following hypothetical case and take into account the consequence that will follow if their arguments are accepted as well founded arguments. In a summary suit a part of the suit claim is admitted by the defendants. A query was made by me to M/s. Nanavati and Mehta to consider a following hypothetical case and take into account the consequence that will follow if their arguments are accepted as well founded arguments. In a summary suit a part of the suit claim is admitted by the defendants. The relevant rules require that a Court should immediately pass a decree for a part of the suit claim that is admitted and should not postpone passing of a decree for the part of the claim till the rest of controversy in regard to which leave to defend is granted is decided The Court refuses to follow those provisions and postpones the passing of a decree such controversy will not be a controversy in regard to the right or obligation of the nature urged by M/s. Nanavati and Mehta. The question that would arise would be whether such an older passed by the Court refusing to pass a decree ignoring the provisions contained in the Civil Procedure Code could be revised by this Court or not. In my opinion the answer should be clearly in the affirmative. I am of the opinion that the present decision would amount to a case decided as a controversy between the parties in regard to the right or obligation in relation to inspection of certain documents in a proceeding has been decided by the Court. I therefore hold that this preliminary objection is not maintainable on the first ground. ( 14 ) IT has been next contended that it cannot be said that the Court has acted illegally or with material irregularity in exercise of its jurisdiction and eventually the provisions of clause (c) of sec 115 of the Civil Procedure Code could not be pressed into service. It was contended that it could be at the most said that there was an erroneous decision given by the subordinate Court. It may be an error of law. It may be that the decision may be a wrong decision. It may be that the discretion vested in the Court under Order 11 Rule 18 of the Civil Procedure Code may have been wrongly exercised. In brief it was urged that it was a question relating to the erroneous exercise of discretion vested in the Court and this Court therefore cannot revise the order in question. It may be that the discretion vested in the Court under Order 11 Rule 18 of the Civil Procedure Code may have been wrongly exercised. In brief it was urged that it was a question relating to the erroneous exercise of discretion vested in the Court and this Court therefore cannot revise the order in question. Emphasis was laid on the wording of Order 11 Rule 18 which I have referred to in an earlier part of the judgment. I need not repeat the same. It is urged that the Court has got the initial jurisdiction to make an order for inspection or to refuse to make an order for inspection. For exercise of the jurisdiction two conditions were necessary; (1) Giving of notice-contemplated (2) The documents for which inspection has been sought should be the documents referred to in the pleadings or affidavits of the party. If both these conditions are satisfied and they have been satisfied in the instant case the Court has jurisdiction to pass an order for inspection. That being the position it could only be said that the Court committed an error in making an order for inspection It could therefore be at the most said that it is a wrong decision. It may be that the discretion may have been wrongly used. It is urged that the proviso referred to in sub-rule (1) of Order 11 Rule 18 or in sub-rule (2) of it postulates that the Court has jurisdiction to make such an order. Proviso only deals with the manner in which the discretion is to be used. It states that the order shall not be made when and so far as the Court shall be of the opinion that it is not necessary either for disposing fairly of the suit or for saving costs. It is therefore contended that the order is really an order in relation to the exercise of the discretion vested in the Court. The provisions of clause (c) of sec. 115 cannot therefore have any application. In my opinion a careful reading of the relevant wording of this rule 18 of order 11 does not indicate this contention to be a well-founded contention. It is true that two conditions referred to have been satisfied. The provisions of clause (c) of sec. 115 cannot therefore have any application. In my opinion a careful reading of the relevant wording of this rule 18 of order 11 does not indicate this contention to be a well-founded contention. It is true that two conditions referred to have been satisfied. If those two conditions are satisfied the Court has been given a discretion to make an order for inspection in such place and in such manner as it may think fit. It is left entirely to the discretion of the Court as to whether inspection be given and as to bow it should be given. At the same time by inserting a proviso the power of the Court is circumscribed by the proviso. It is stated 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. It is in my opinion a clear indication that there are fetters to the exercise of power by the Court. The Court has to keep this proviso in its uppermost mind. It is only when those fetters are not there that Court can order inspection in such place and in such manner it may think fit. In my opinion the powers vested in the Court are circumscribed. Before the Court therefore makes any such order the Court must find that the order of inspection is necessary either for disposing fairly of the suit or for saving costs as the Court is enjoined not to pass such an order if it is of opinion that it is not necessary either for disposing fairly of the suit or for saving costs. Further-more the Court has to take into account the provisions of Order 11 Rule 20. If it is a case of premature discovery the Court is empowered to pass an order of inspection in the manner referred to in this Rule 20. It indicates that in certain circumstances referred to therein passing of an order for inspection has got to be postponed till the determination of any issue or question in dispute. It is also necessary to see whether for any other reason it is desirable that any issue or question in dispute should be determined before deciding upon the right to the discovery or inspection. It is also necessary to see whether for any other reason it is desirable that any issue or question in dispute should be determined before deciding upon the right to the discovery or inspection. If it is so the Court has to order that such issue or question be determined first and reserve the question as to discovery or inspection. If the Court ignores these provisions that restrict and circumscribe the powers vested in the Court in my opinion it is not merely a case of wrong decision on 8 question of fact or law or a case of erroneous exercise of discretion. It is really a case where the Court has acted illegally or with material irregularity in the exercise of its jurisdiction. ( 15 ) LEARNED advocate Mr. Nanavati invited my attention to the case of Razia Begum v. Sahebzadi Anwar Begum and others A. I. R. 1958 Supreme Court p. 886. It has been observed therein :the question of addition of parties under Rule 10 of Order 1 of the Code of Civil Procedure is generally not one of initial jurisdiction of the Court but of a judicial discretion which has to be exercised in view of ail the facts and circumstances of particular case but in some case it may raise controversies as to the power of the Court in contradistinction to its inherent jurisdiction in limited sense in which it is used in sec 115 of the Code In a suit relating to property in order that a person may be added as a party he should have a direct interest as distinguished from a commercial interest in the subject matter of the litigation. In my opinion this decision on its careful reading does not lend support to the argument advanced by Mr. Nanavati. On the contrary it lends support to my conclusion. It is stated therein. In some cases it may raise controversies as to the power of the Court in contra. distinction to its inherent jurisdiction or in other words of jurisdiction in the limited sense in which it is used in sec. 115 of the Code. The controversy may be as well in regard to the powers of the Court in regard to certain matters like present one. ( 16 ) MR. Nanavati also invited my attention to the comments made by learned author Mr. 115 of the Code. The controversy may be as well in regard to the powers of the Court in regard to certain matters like present one. ( 16 ) MR. Nanavati also invited my attention to the comments made by learned author Mr. Mulla in his book-Code of Civil Procedure Thirteenth Edition Vol. I page 515 under the caption No revision from discretionary orders. The comments to which reference was made by him are as under :there the propriety of an order made in the exercise of a discretion is challenged in revision the limitations imposed by sec. 115 should be taken into account. In Razia Begum v. Anwar Begum discussing the power of the High Court to interfere in revision with an order made under Order 1 Rule 10 the Supreme Court observed: The question of addition of parties under Rule 10 of Order 1 of the Code of Civil Procedure is generally not one of initial Jurisdiction of the Court but of a judicial discretion which has to be exercised in view of all the facts and circumstances in a particular case but in some cases it may raise controversies as to the power of he Court in contradistinction to its inherent jurisdiction or in other words of jurisdiction in the limited sense in which it is used in sec. 115 of the Code and that where the order was within the power of the Court a discretion exercised judicially it could not be questioned under sec. 115. ( 17 ) STILL the question remains whether the order was within the power of the Court. Order 11 Rule 18 to which reference is made earlier clearly indicates that there is no power vested in the Court to order for inspection if the Court is of opinion that it is not necessary either for disposing fairly of the suit or for saving costs. The Court has therefore got to find that the order is necessary either for disposing fairly of the suit or for saving costs. If that is not the position the Court has no power to order for inspection. Furthermore the Court cannot exercise such powers in certain cases for the time being If the case is covered by Rule 20 of Order 11 of the Civil Procedure Code. If that is not the position the Court has no power to order for inspection. Furthermore the Court cannot exercise such powers in certain cases for the time being If the case is covered by Rule 20 of Order 11 of the Civil Procedure Code. If the Court ignoring these provisions or in the absence of anything in the order to indicate that it has applied its mind to those provisions has passed an order it could be said that Court has acted illegally or with material Irregularity In the exercise of its jurisdiction. The present case is a case of that typo. ( 18 ) LEARNED advocate Shri Nanavati invited my attention to the observations made by a Division Bench of this Court In the aforesaid decision VIII G. L. R p. 649 Para 8. The relevant observations are as under:- but the question may then be asked: what about clause (c) of sec. 115? That clause empowers the High Court to interfere where the subordinate Court has acted illegally or with material irregularity in the exercise of jurisdiction. Can the High Court not interfere in revision under this clause where it finds that the subordinate Court has wrongly decided a question of law in the exercise of its jurisdiction ? If the question is asked in general terms the answer is plainly No. Sec. 115 is not directed towards correcting errors of law in the exercise of jurisdiction As held by the Supreme Court in Pandurang v. Maruti (Supra) it is only if the error of law has relation to the exercise of jurisdiction illegally or with material irregularity by the subordinate Court that the High Court can correct such error of law in revision. What then is the meaning of the expression has acted illegally or with material irregularity in the exercise of jurisdiction ? This question is also no longer open to doubt or debate. In Keshardeo Chamaria v. Radhakisan Chamaria A. I. R. 1953 S. C. 23 the Supreme Court quoted with approval the observations of Bose J. in his order of reference in Narayan Soneji v. Sheshrao Vithoba A. I. R. 1948 Nagpur 258 and observed that: -. . . . . . . . THE words illegally and material irregularity do not cover either errors of fact or law. . . . . . . . THE words illegally and material irregularity do not cover either errors of fact or law. They do not refer to the decision arrived at but to the manner in which it is reached The errors contemplated relate to material defeats of procedure and not to errors of either law or fact after the formalities which the law prescribes have been complied withit Is clear from these observations that a mere error of law in the exercise of jurisdiction is not enough. What is necessary is that the subordinate Court must have acted illegally that is in breach of some provision of law or with material irregularity that is by committing some error of procedure in the course of trial which is material in that it may have affected the ultimate decision. Vide also Venkatagiri Ayyangar v. Hindu Religious Endowments Board Madras 76 I. A. 67. This is the test which must be applied in order to determine whether the case falls within clause (c) of sec. 115. That ratio indicated by a Division Bench of this Court is a ratio indicated in several decisions of the Supreme Court. The Division Bench had to deal with a case where the question was whether the document Ex. 4/1 was a promissory note within the meaning of sec. 2 (22) of the Stamp Act; it would be clearly an error of law but that error of law did not have relation to and was not concerned with the jurisdiction of the subordinate Court. In the present case that Is not the position. As stated earlier the Court has been empowered to order inspection of documents referred to in the pleadings etc. with a proviso added that the power shall not be used if the Court is of opinion that inspection is not necessary either for disposing fairly of the suit or for saving costs. It is therefore evident that unless one of those conditions is satisfied the Court has no power to order for inspection of such documents. If the Court ignoring these provisions and also ignoring provisions of Order 11 Rule 20 passes an order it could be said without any doubt that the Court has acted illegally or with material irregularity in the exercise of its jurisdiction. Clause (c) of sec. 115 would therefore be attracted. If the Court ignoring these provisions and also ignoring provisions of Order 11 Rule 20 passes an order it could be said without any doubt that the Court has acted illegally or with material irregularity in the exercise of its jurisdiction. Clause (c) of sec. 115 would therefore be attracted. I therefore overrule the preliminary objection and hold that this objection is not tenable. ( 19 ) THE impugned order has been referred to in extenso in the earlier part of the judgment. The only ground mentioned by the learned subordinate Judge in support of his order is that this provision for inspection is to avoid hardships to other parties. There is nothing in his order to indicate that he bad applied his mind to the provisions that the Court had no power to order inspection if it is of opinion that it is not necessary either for disposing of the suit fairly or for saving costs. There is no mention made that the order of inspection passed is necessary either for disposing of the suit fairly or for saving costs. There is nothing also in the order itself which by necessary implication would indicate that these relevant and material provisions were kept in mind by the Court when the impugned order was passed. Similar is the position regarding provisions found in Order 11 Rule 20. The Court has not applied its mind at all to these relevant and material provisions of Order 11 Rule 18 and Rule 20. The order therefore cannot be sustained in law. Learned Advocate Mr. Shah appearing on behalf of the petitioner has fairly stated that this Court would be justified only in sending the matter back to the Court directing the Court to pass an appropriate order keeping in mind the provisions of these two rules. In support of his arguments on merits he has invited my attention to the decision in Bagyalakshmi Ammal and others v. Srinivasa Reddiar A I. R. 1960 Madras 510 (V. 47 C 170 ). The relevant observations made therein are as under:-THE mere fact that certain documents have been produced and filed in a suit by a party does not by itself give the other side a right to inspect the same as a matter of course when the party producing the same objects to their being inspected before the determination of a particular issue or question. That the documents are relevant for the purposes of the suit is not by itself a sufficient reason for ordering premature inspection A party cannot be compelled to produce any document or to give inspection of the same for the Purpose of facilitating cross examination or for enabling the opposite party to understand the genuineness or purport of the documents relied upon by the party producing them for proving its case. Where the decision in any suit depends on the finding of a preliminary issue which goes to the very root of the plaintiffs case such as whether a suit temple is a public temple or not the Court cannot order the inspection of the defendants documents before the determination of such an issue. In cases where the right to discovery in any form depends on the determination of any question or issue in dispute in a case or matter or it is desirable that some issue or question of law or fact or mixed question of law and fact in dispute should be determined first the question of discovery should be deferred till after the issue or question has been determined. ( 20 ) AS the matter has got to be remanded for deciding whether inspection should be granted or not keeping in view the provisions of Order 11 Rule 18 and Rule 20 of the Civil Procedure Code it will not be proper for the Court to indicate its mind on this controversial question. The Court has to consider whether in 8 suit like the present suit where the factum of holding of power of attorney by the petitioner is challenged and the question whether there is a liability to render accounts is in Issue such inspection should be ordered or not or it should be postponed till that question is decided. . ( 21 ) IT was opponent Na. 1 who had sought for inspection of the documents in question. It will therefore be proper to order him to pay the costs of the petitioner in this revision petition. It will not be proper to order other opponents to pay the costs of the petitioner in this revision petition. They have appeared as they have been joined as opponents. No doubt opponent No. 4 has sought to support the order of the Court below but that will not make any difference. It will not be proper to order other opponents to pay the costs of the petitioner in this revision petition. They have appeared as they have been joined as opponents. No doubt opponent No. 4 has sought to support the order of the Court below but that will not make any difference. ( 22 ) THE revision petition is allowed. The order passed by the Court below Ex. 37 dated 20-2-1968 is set aside and the Court below is directed to decide that application in the light of the directions given above. Rule is modified. ( 23 ) THE opponent No. 1 to pay the costs of the petitioner in this revision petition. The opponents to bear their own costs. Revision allowed. .