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Gujarat High Court · body

1984 DIGILAW 75 (GUJ)

JAGATBHAI PUNJABHAI PALKHIWALA v. VIKRAMBHAI PUNJABHAI PALKHIWALA

1984-03-12

R.A.MEHTA

body1984
R. A. MEHTA, J. ( 1 ) THE petitioners have challenged the order of the trial Court refusing permission to take copies of the documents in the custody of the Court. ( 2 ) THE petitioners (original plaintiffs) have filed a suit for a decla- ration that all the ventures undertaken by the plaintiff and contesting defendants were joint ventures carried on behalf of the joint members in which all the family members have interest; and such business ventures and properties assets were more particularly described in the schedule to the plaint and it was contended that the plaintiffs side had 1/3 share therein and a prayer was made for accounts partition etc. In the suit by a notice of motion several interim prayers were made such as injunction regarding alienation of property appointment of receiver appointment of Commissioner to make inventory and to take possession of books of accounts and papers etc. One of the prayers was to take possession of the arbitration agreement and proceedings and documents from the arbitrators defendant No. 9 to 11. The learned Trial Judge granted ex-parte order appointing a Commissioner to make inventory in respect of the point referred to in para (d) in the prayer clause of the notice of motion. Accordingly the Commissioner made the inventory. The Commissioner also took possession of the documents from the arbitrator and brought to the court and the same were ordered to be kept in safe custody. By an application Ex. 43 the petitioner-plaintiffs applied for the inspection of documents produced by Commissioner. The request was objected by the defendants. However the learned Trial Judge granted inspection by his order dated Sept. 1 1981 Similarly defendants also applied for inspection by Ex. 44 which was also granted. Notice of motion was heard ant the arguments were advanced before the trial court. During the course of hearing certain of these documents were sought to be referred by the learned Counsel for the petitioners even though they were not referred to in any of the pleadings or affidavit. Same was objected by the defendants. ( 3 ) AN application was given by the plaintiffs at Ex. 100 praying that the documents collected by the Commissioner are required to be made part of the record and required to be exhibited in the suit. Same was objected by the defendants. ( 3 ) AN application was given by the plaintiffs at Ex. 100 praying that the documents collected by the Commissioner are required to be made part of the record and required to be exhibited in the suit. That application was rejected and the revision application against that order being CRA No. 708 of 1982 is dismissed by me today and I have confirmed the order of the trial court directing the parties to file proper affidavit in respect of the documents relied. ( 4 ) AFTER the above order below Ex. 100 the petitioners gave another application for inspection of the record collected by the Commissioner and the same was granted. However when the inspection was being taken it appears that there was some trouble between the parties and some heat was generated. Thereafter the petitioners-plaintiffs submitted an application Ex. 102 in continuation of the application Ex. 102 stating that to give complete justice to the parties and to see that controversy and litigations are avoided the court may permit the plaintiffs to have xerox copies of all the documents taken possession of by the defendants at their own costs. That application has been rejected by the impugned order on the ground that the record of the arbitration proceedings has yet not become part of the record of the suit and unless it becomes part of the R. and P. of this case the question of obtaining permission for xerox copies did not arise. ( 5 ) THIS reason given by the learned trial Judge is not correct and is too technical. If the inspection of the documents could be granted by the court there is no reason why the persons who were permitted to take inspection cannot take xerox copy of the same. The purpose of the inspection is to know and study the documents. The person who takes inspection can also take notes and even make copies of the same. In view of very large number of documents the petitioners wanted that they may be permitted to take xerox copies of the same. Their say is that instead of taking inspection and looking at the documents by their own-eyes they would like to have their view from the camera eye. The request for xerox copies at their own cost is reasonable. Their say is that instead of taking inspection and looking at the documents by their own-eyes they would like to have their view from the camera eye. The request for xerox copies at their own cost is reasonable. Once the court has granted inspection this request is merely to make that inspection more effective. By allowing the plaintiffs to take xerox copies the court is neither verifying nor certifying them to be true and correct copies. The plaintiffs will be taking copies for their own purpose in order that they can make effective and detailed study and have proper consultation with their lawyers. That would not only serve the cause of the petitioners but will also enable the Counsel to render proper assistance to the court. Since the court is not verifying or certifying the correctness of the copies there is no need of the documents to have become part of the record. Since the documents happen to be in the custody of the court the parties cannot take xerox copies of the same without permission of the court. But that does not mean that the court can refuse such permission only on the ground that they have not become part of the record. The reason given is fundamentally erroneous and merely technical. ( 6 ) IF the xerox copies are not permitted to be taken the purpose of the inspection will become ineffective and would be frustrated. No harm or prejudice can occur to the other side if the xerox copies are permitted to be taken. However only care is required to be taken to see that while the xerox copies are being taken an officer of the Court appointed by the trial court remains present and retains the custody of the documents and the representative of the other side is also allowed to remain present so that no allegation is made in future. The cost and remuneration of the court officer appointed for that purpose will have to be borne by the petitioners and the amount will have to be deposited by them as may be quantified by the trial court. The defendants would also be entitled to have the same facility subject to the similar conditions. ( 7 ) IN the result the revision application succeeds and the impugned order dt. 26/03/1983 below Ex. The defendants would also be entitled to have the same facility subject to the similar conditions. ( 7 ) IN the result the revision application succeeds and the impugned order dt. 26/03/1983 below Ex. 104 is quashed and reversed and it is directed that the petitioners-plaintiff shall be entitled to take xerox copies of the documents in question in the presence and under the Supervision of court officer appointed by the trial court who will retain the custody of the documents and a representative of the other side will be entitled to remain present during the course of taking xerox copies. The cost and remuneration of the Commissioner shall be borne and deposited by the petitioners as may be fixed by the trial Court. Rule made absolute accordingly with no order as to costs. Rule made absolute. .