KISHOREKUMAR v. RAJESHKUMAR JAYPRAKASH AGARWAL — 1990 DIGILAW 155 (GUJ)

K. G. SHAH, J. ( 1 ) RULE. Ms. V. P. Shah the learned Counsel for the contesting opponents has waived the service of the Rule. ( 2 ) IN paragraph 14 of the memo of the revision application the petitioners have firstly prayed for an order under Section 24 of the Code of Civil Procedure transferring Special Civil Suit No. 473 of 1990 pending in the court of Shri A. J. Brahmbhatt the learned Civil Judge (S. D.) Surat to the court of any other Judge competent to try and decide that suit. In the alternative the petitioners have prayed that the orders passed below applications Exhs. 5 7 8 and 36 in the aforesaid suit by the learned Civil Judge (S. D.) at Surat be set aside. However at the time of hearing of this Civil Revision Application Mr. D. D. Vyas for the petitioners fairly conceded that the order passed by the trial court on Exh. 5 cannot be the subject-matter of this revision petition for that is an order under Order XXXIX of the Code of Civil Procedure issuing certain injunctions and such an order could only be challenged by way of an appeal from order under Section 104 read with Order XLIII of the Code of Civil Procedure. So far as the request for transfer of the suit under Section 24 of the C. P. Code is concerned that request was also not seriously pressed Mr. Vyas at the hearing of this C. R. A. for it was apparent that in the present Revision petition such a request cannot be entertained. ( 3 ) HOWEVER at the hearing of this C. R. A. Mr. Vyas for the petitioners very vehemently chal- lenged the orders passed by the trial court on the applications Exhs. 7 and 8 moved by the original plaintiff who is Opponent No. 1 before me and the order on application Exh. 36 which was moved by petitioner No. 2 who is the Defendant No. 5 in the suit. ( 4 ) OPPONENT No. 1 Mukeshkumar Jaiprakash Agarwal for himself and as the Manager and Karta of his Hindu Joint Family filed the aforesaid suit from which this revision petition arises against the present two revision petitioners and Opponents No. 2 to 7. ( 4 ) OPPONENT No. 1 Mukeshkumar Jaiprakash Agarwal for himself and as the Manager and Karta of his Hindu Joint Family filed the aforesaid suit from which this revision petition arises against the present two revision petitioners and Opponents No. 2 to 7. In that suit Opponent No. 1 as the plaintiff prayed for a declaration that all the properties and businesses mentioned in the Schedule annexed to the plaint are the Joint Hindu Family properties and business of the plaintiff and Defendants No. 1 to 4. It may be mentioned that Defendants No. 1 2 and 3 in the suit are Opponents No. 2 3 and 4 respectively in this petition and Defendant No. 4 is petitioner No. 1 in this petition. Opponent No. 1 also prayed for declaration that he has one-fourth share in the suit properties. He also prayed for a declaration that a certain writing taken by Defendants No. 1 to 4 from him is nominal bogus and not to be acted upon and is even otherwise fraudulent illegal and null and void. He also prayed for an order for cancellation of that document. He also prayed an injunction restraining Defendants No. 1 to 4 from alienating the suit properties. A relief for accounts and getting his share in the properties or taking accounts was also prayed for by Oppo- nent No. 1. ( 5 ) ALONGWITH the suit which was filed or 20/08/1990 the plaintiff on the same day moved three applications Exhs. 5 7 and 8 However the plaintiffs learned Advocate did not take those three applications to the learned Judge for orders upto 26/08/1990 For the firs time the learned Advocate for the plaintiffs presents those three applications Exhs. 5 7 and 8 before the learned Judge for passing first orders on 27/08/1990 and the ground that was put up by the plaintiffs learned Advocate for not having pressed those applications earlier was that he had gone to Bombay where his daughter was operated upon. Be that as it may on the three applications Exhs. 5 7 and 8 which were filed before the court alongwith the suit on 20/08/1990 the courts first orders were sought by the plaintiff-opponent No. 1 through his Advocate for the first time on 27/08/1990 ( 6 ) BY Exh. Be that as it may on the three applications Exhs. 5 7 and 8 which were filed before the court alongwith the suit on 20/08/1990 the courts first orders were sought by the plaintiff-opponent No. 1 through his Advocate for the first time on 27/08/1990 ( 6 ) BY Exh. 5 opponent No. 1-plaintiff prayed for an interim injunction restraining Defendants No. 1 to 4 from alienating any movable or immovable properties mentioned in the Sched- ule annexed to the plaint or those that may be found on taking inventories in any way what so- ever or from inducting anybody in those properlies till the suit is finally decided. It appears that the learned trial Judge by his order dated 17/08/1990 passed on that application Exh. 5 issued an interim injunction as prayed in respect of immovable properties only ( 7 ) THE third application which was moved by he plaintiff on 20/08/1990 on which orders were sought on 27/08/1990 in Exh. 7 By that application Exh. 7 the plaintiff-opponent No. 1 prayed for appointment of various Commissioners for making certain inventories of uhe properties lying at different places. The trial court issued commissions and appointed five different persons as Commissioners for the purposes of preparing the inventories as prayed by the plain- tiff in that application Exh. 7. ( 8 ) THE third application which was moved by the plaintiff on August 20 1990 on which orders were sought on 27/08/1990 is Exh. 8 By that application Exh. The trial court issued commissions and appointed five different persons as Commissioners for the purposes of preparing the inventories as prayed by the plain- tiff in that application Exh. 7. ( 8 ) THE third application which was moved by the plaintiff on August 20 1990 on which orders were sought on 27/08/1990 is Exh. 8 By that application Exh. 8 the plaintiff contended that the defendants keep computers and they maintain accounts on computers According to the plaintiff even the accounts of black and while income is kept by the defendants on computers in code language it is the say of the plaintiff that in fact the computers are the real account books on which the accounts are maintained by the defendants According to the plain- tiff as and when the Commissioners for the purpose of preparing the inventories would visit the various places they would find the computers there and the Commissioners would not be able to operate the computers and decipher the data/ material recorded on the computers and such data-material could be deciphered by the persons trained in such work The plaintiff contended that when the work of preparing inventories would be going on it would not be possible to call the persons trained in the science of operating the computers and deciphering the data recorded thereon Therefore the computers in possession of the defendants were required to be kept in boxes or cupboards under proper locks and seals According to the plaintiff as contended by him in this application Exh. 8 within a few days trained personnel would be taken to the concerned prem- ises for operating the computers and deciphering the data recorded on the computers and reducing that data into writing and thereafter the computers could be released to the defendants con- cerned. It is the say of the plaintiff that that was in the interest of justice. 8 within a few days trained personnel would be taken to the concerned prem- ises for operating the computers and deciphering the data recorded on the computers and reducing that data into writing and thereafter the computers could be released to the defendants con- cerned. It is the say of the plaintiff that that was in the interest of justice. Otherwise the defen- dants would decipher all the accounts and figures recorded on the computers and the plaintiff would not be able to know the same and the plaintiff (in the application through typographical error the word defendant is written) would suffer irreparable loss and the important evidence of uhe account would be destroyed and would slip away from the plaintiff and the court and that would thereafter not be obtainable by any means whatsoever The plaintiffs therefore in the name of interest of justice in para 2 of that application Exh. 8 prayed for the following reliefs 2 The plaintiff therefore prays:that any computers hard discs floppy discs record etc. or any material pertaining to the computer that would be found by any Commissioner appointed in this case be ordered to be put into any box or cupboards to be supplied by the plaintiff or the defendants which is convenient and the same be kept in lock and key by the Commissioner and also sealed and the same be released in few days when trained men reduces into writing or into discs everything in the computers For that the Commissioner may be empowered to put the computers etc. in the box cupboard etc. and to lock the same and (to open the same) and to re-open the same for reading the computer by the trained persons and then release it to the defendants in whose posses- sion the computer was after the above work is done. ( 9 ) THUS by this application Exh. 8 what the plaintiff prayed for in substance is that the data recorded on the computers in possession of the defendants be copied on the floppy discs. ( 9 ) THUS by this application Exh. 8 what the plaintiff prayed for in substance is that the data recorded on the computers in possession of the defendants be copied on the floppy discs. The other material on the record shows that the plaintiff had requested the court to ask the Commissioners to copy the data recorded on the computers on the floppy discs with the aid of the experts in that science and to produce those floppy discs before the court in sealed condition In essence the plaintiff wanted to be brought to the court what according to him was the ac- counts maintained by the defendants on the computers with them and for that purpose the plaintiff wanted the Commissioners to be appointed with the directions to copy or transfer with the assistance of the exports in the line on the floppy discs the data/material recorded on the computers in the possession and custody of the contesting defendants ( 10 ) ON that application Exh. 8 the court on 27/08/1990 passed the following order:heard Mr. J. Z. Halatwala learned Advocate for the plaintiff Read application after perusing the same it establishes that defendants keep computers and they keep accounts on computers and when Commissioners go to make inventory they will find any computers the Commissioner will not be able to read the computers and decipher its contents and it can be done only by the persons trained in such work and during the inventory working it is not possible to call trained men to decipher computer and therefore I am of the opinion that if the said computers are ordered to be kept in lock and seal it would serve the purpose and the interest of justice also be main- tained. Otherwise the defendants will decipher all accounts and figures and the plaintiff will not be able to know the same. In the result I pass the following order. Court Commissioners appointed vide order below Exh. 7 are hereby directed that if the Commissioners found any computers in the property at the time of inventory he is au- thorised to put the same alongwith any computer discs or material in any cupboard or box or room in the property and to lock and seal the same. If there is no suitable place in the property to keep the computer etc. If there is no suitable place in the property to keep the computer etc. in the box under the lock an key the plaintiff is ordered to supply the same and the Commissioners shall put the computers etc. in such box and lock it and seal it. THE Computers etc. to remain under lock an key for 15 days i. e. upto 10-9-90 during which the plaintiff shall get the contents of the computer recorded by a computer person in discs or an other manner in presence of the Commissioner and any computer discs or any material on which the contents of the computers are recorded to the Commissioner who shall immediately seal the same and produce the same in court. Plaintiff is authorised to get the content of the computer recorded on his own disc in the presence of the Commissioner additional remuneration for the aforesaid work will be fixed after completion of the Com- missioners work. ( 11 ) IT appears that the same Commissioner were appointed by the court by its order on Exh. 7 to prepare the inventories were directed to out the work as per the order on Exh. 8. It further appears from the record that the Commissioners prepared the inventories of the properties as the order on Exh. 7. The Commissioners also kept certain computers which were found at the places of the contesting defendants into locks and seals It is further an admitted position that thereafter certain material which wore recorded on some of the computers have been copied/transferred/tran- scribed on floppy discs by the Commissioners with the assistance of the persons who are claimed to be trained in the line. The above extracted order of the trial court below Exh. The above extracted order of the trial court below Exh. 8 makes it clear that the computers wore to remain in lock and key upto 15 days i. e. upto 10/09/1990 and during that time the plaintiff was expected to get the contents of the data/material recorded on the computers copied/transferred/ transcribed by the competent persons on discs or in any other manner in the presence of the Commissioners and the computer discs and any other material on which the content on the computer were copied were expected by the Commission- ers to be produced before the court immediately and in any case within a period of 15 days ending on 10/09/1990 It appears that for diverse reasons the Commissioners have not been able to or could not or did not complete copying/ transferring/transcribing of floppy discs all the material and data recorded on all the computers even after taking the assistance of the persons who are claimed to be trained or experts in the line. ( 12 ) AS the Commissioners appointed by the court have placed certain computers of the defen- dants under locks and seals the defendants were experiencing difficulties in carrying on their business and activities Further according to the contesting defendants the Commissioners have illegally sealed certain premises which wore in their (the contenting defendants) possession. According to the contesting defendants the persons whose services were procured by the plain- tiff as experts or trained personnel for copying/transferring/transcribing on the floppy discs the data/material recorded on the computers have while attempting to copy/ transfer/transcribe such material recorded on the computer caused damage to their computers and have destroyed valuable data recorded on the computers and thus the process of the court has been misused On these allegations Defendant No. 5 moved application Exh. 36 before the trial court on Sep- tember 7 1990 with a request that the further work of the Commissioners in respect of copy- ing/transferring/transcribing on floppy discs the data/material recorded on the computer be stayed. By that application the said Defendant No. 5 also prayed for the early hearing of injunction appli- cation Exh. 36 before the trial court on Sep- tember 7 1990 with a request that the further work of the Commissioners in respect of copy- ing/transferring/transcribing on floppy discs the data/material recorded on the computer be stayed. By that application the said Defendant No. 5 also prayed for the early hearing of injunction appli- cation Exh. 5 and for vacating the interim injunction In that application Defendant No. 5 also expressed its apprehension that if the further execution of the work assigned to the Commis- sioners is not stayed immediately the so called experts whose services were procured by the plaintiff would cause further damage to the discs etc. ( 13 ) THIS application Exh. 36 as said above was moved by Defendant No. 5/09/1990 The trial Court by its order dated 17/09/1990 rejected that application Exh. 36. ( 14 ) MR. D D Vyas for the revision petitioners firstly contended that the order passed by the learned trial Judge on Exh. 7 is not only bad in law but is without jurisdiction As said above Exh. 7 is the application filed by the plaintiff for an order for appointment of Commissioners for the purpose of making certain inventories on that application the court passed an order ap- pointing some five persons as Commissioners for the purpose of preparing certain inventories ( 15 ) THOUGH before the trial Court the parties were at variance on the question whether all the work of preparing the inventories have been completed at the hearing of this revision petition it was not seriously in dispute the almost all the work of preparing the inventories have been completed by the Commissioners and what now remains to be done is only to copy/ transfer/transcribe on the floppy discs with the assistance of the experts some data/material re- corded by the defendants on some of the computers. According to Ms. V. P. Shah the learned Counsel for the contesting Opponents the Commissioners with the assistance of the experts have already copied/transferred/transcribed some material/data recorded on some of the comput- ers while the remaining data/material recorded on some other computers is yet to be copied/ transferred/transcribed on the floppy discs with the assistance of the experts. What I want to emphasis at this juncture is that the order passed by the trial court on Exh. . What I want to emphasis at this juncture is that the order passed by the trial court on Exh. . 7 has almost completely be carried into effect and the inventories have been made by the Commis- sioners. Therefore whether the order passed by the court on Exh. 7 was or was not proper legal reasonable etc. would at this juncture become only of academic interest. The fact remains that the Commissioners have prepared the inventories in execution of the order passed by the Court on Exh. 7. In that view of the matters the challenge by the petitioners to the order passed by the trial court on Exh. 7 becomes only of an academic interest and it would be better if this court does not proceed further in this revision petition to decide that challenge. The reason is that while deciding the revision petition like this this Court should speak the minimum and should examine only that much which is absolutely necessary to be examined. The matter before the trial court is yet in its initial stages and any observations made by this court while deciding this revision petition even if technically and in law may not have finality while deciding the matter finally before the trial court is surely likely to affect the thinking of the trial court on the merits of the case. It is therefore that I say that it is about that I should not enter into the question about the le- gality property reasonableness etc. or the question about jurisdictional error in the order on Exh. 7. ( 16 ) COMING to Exh. 36 the prayer there was that the court should stay the further execution of its order below Exh. 5. The other prayer was that the court should expeditiously decide appli- cation Exh. 5 on which injunction order was passed. So far as the later request is concerned Ms. V. P. Shah for the contesting opponents did not dispute that the trial court should be asked to hear and decide application Exh. 5 as early as possible. However she strongly opposed the request for the stay of the further execution of the order passed by the trial court on Exh. 8. There- fore it would be clear that the fate of the first request about the stay of the further execution of the order on Exh. 8 as is contained in Exh. 5 as early as possible. However she strongly opposed the request for the stay of the further execution of the order passed by the trial court on Exh. 8. There- fore it would be clear that the fate of the first request about the stay of the further execution of the order on Exh. 8 as is contained in Exh. 36 is linked with the order on Exh. 8 itself. ( 17 ) MR. D. D. Vyas for the revision petitioner very strenuously contained that the trial court had no jurisdiction whatsoever to appoint the Commissioners for copying/transferring/transcribing or ask the Commissioners to copy/transfer/trascribe on floppy discs the data/material recorded on the computers in the possession and Custody of the defendants. According to Mr. Vyas the order on Exh. 8 was sorely without jurisdiction. What the plaintiff in essence wanted to be done by obtaining the order on Exh. 8 submitted Mr. Vyas was to bring before the court the data/ material recorded and contained on the computers in the possession and custody of the contest- ing defendants and that was impermissible to the plaintiff. In the submission of Mr. Vyas the court had no jurisdiction to render any assistance to the plaintiff in such approach of his by ap- pointing the commissioners and/or directing the Commissioners appointed to copy/transfer/tran- scribe on the floppy discs the data/material recorded and contained on the computers of the defendants. ( 18 ) MR. Vyas submitted that the case in so far as application Exh. 8 is concerned it was not and could not be covered by Section 75 read with Order XXVI of the Code of Civil Procedure. Therefore the courts order below Exh. 8 was clearly without jurisdiction and it should be set aside. ( 19 ) MR. Vyas took me through the various material on the record of the trial court and submitted that the plaintiff has no case whatsoever to succeed in the suit for the substratum of the plaintiffs case about there being a Joint Hindu Family and about the suit properties being the Joint Hindu Family properties. has no basis whatsoever. In the submission of Mr. Vyas the Joint Hindu Family has already been disrupted by a decree of the Ghaziabad court and in that suit before the Ghaziabad court. A consent decree has been passed whereunder the present plaintiff has got his share. has no basis whatsoever. In the submission of Mr. Vyas the Joint Hindu Family has already been disrupted by a decree of the Ghaziabad court and in that suit before the Ghaziabad court. A consent decree has been passed whereunder the present plaintiff has got his share. Therefore the present suit on the basis of the existence of a Joint Hindu Family and for the partititon of the Joint Hindu Family properties in the submission of Mr. Vyas is thor- oughly misconceived and the plaintiff has no prima facie case to succeed in the present suit. Mr. Vyas nextly submitted that petitioner No. 2 which is the original defendant No. 5 in the suit is approval limited company which cannot be termed as Joint Hindu Family and the properties of pe- tititoner No. 2 can never be the subject-matter of the suit for partition of the Joint Hindu Family properties. Mr. Vyas further submitted that Defendant No. 5 which is Opponent No. 5 in this revision petition is a partnership firm and the assets of that firm also cannot be the subject- matter of a suit for partition of Joint Hindu Family properties. ( 20 ) I think while deciding this revision application I should not decide these question raised by Mr. Vyas about the maintainability of the suit for partition of the Joint Hindu Family properties. As I will personally point out the challenge to the order on application Exh. 8 which is the main challenge in this revision petition can be resolved without touching upon the question of maintainability of the suit. It is therefor not necessary for me to consider the question whether the suit is maintainable. . ( 21 ) THE contention of Mr. Vyas for the petitioners that the case so far as Exh. 8 is con- cerned is not covered either under Section 75 or under Order XXVI of the Code of Civil Proce- dure was sought to be met by Ms. V. P. Shah for the contesting Opponents by submitting that the case is clearly covered by the provisions of Section 75 read with Order XXVI of the Code of Civil Procedure and in the alternative Ms. Shah submitted that in any view of the matter the case would be covered by the provisions of Section 151 of the C. P. Code. ( 22 ) AFTER having heard Mr. Shah submitted that in any view of the matter the case would be covered by the provisions of Section 151 of the C. P. Code. ( 22 ) AFTER having heard Mr. D. D. Vyas the learned Advocate for the petitioners and Ms. V. P. Shah the learned Counsel for the contesting Opponents at length I think the order passed by the trial court on Exh. 8 cannot be sustained. That order in my opinion inherently lacks the trail courts jurisdiction to pass the same. ( 23 ) TO recapitulate by Exh. 7 the plaintiff asked for the appointment of Commissioners for preparing inventories. That request was granted. The Commissioners were appointed and as said above almost all the inventories which were prayed for have been prepared. Simultaneously the plaintiff by Exh. 8 requested the court for orders directing the Commissioners firstly to place the computers in locks and seals and secondly to get the data/material recorded and main- tained on computers copied/transferred/transcribed on some floppy discs with the assistance of the exports in the line and to produce those floppy discs before the court. The request of the plaintiff read in between the lines is clear. The request is that the court should ask the Commis- sioners to get the data/material on the computers copied/transferred/transcribed on the floppy discs with the assistance of the exports and to produce those floppy discs in the court so that he can utilise the data/material recorded and maintained on the computers by the defendants as his evi- dence in the suit. According to the plaintiff if the order as prayed by him in Exh. 8 is not passed the apprehension is that the contesting defendants might obliterate or erase or remove the data/ material recorded and maintained on the computers and if that happened the plaintiff would lose valuable evidence. ( 24 ) THE question is whether on the relevant facts of the case as mentioned hereinabove the court had under Section 75 read with Order XXVI of the Code of Civil Procedure jurisdic- tion to pass the order it has passed on Exh. 8. ( 24 ) THE question is whether on the relevant facts of the case as mentioned hereinabove the court had under Section 75 read with Order XXVI of the Code of Civil Procedure jurisdic- tion to pass the order it has passed on Exh. 8. ( 25 ) THOUGH in his order below Exh 8 the learned trial judge has not referred to the provi- sion of law under which that order was passed it becomes clear if we refer to the order passed by the court below Exh 8 the trial court had purported to exercise its jurisdiction and powers under Order XXVI Rule 9 of the Code of Civil Procedure By Exh 36 filed by it defendant No 5 inter alia challenged the courts jurisdiction to pass the order as was passed on Exh. 8 while considering that challenge raised by defendant No 5 this is what the learned trial Judge in paragraph 6 of the order below Exh 36 said:to my mind when the Commissioners (are) already appointed under Order XXVI Rule 9 C. P C to make local investigations unless and until that commission work (is) completed - by the appointed Commissioners no stay could be given for performing the remaining commission work for local investigation As per the provisions of Order 26 Rules 9 and 10a there is a provision for making appointment of Commissioner to make local investigation and Commis- sioners for scientific investigation perform all investigation acts no stay can be granted. Thus it is clear that while passing the order on Exh. 8 the learned Judge has purported to do so in exercise of the jurisdiction and power conferred upon him under Rules 9 and 10a of Order XXVI of the Code of Civil Procedure ( 26 ) SECTION 75 of the Code of Civil Procedure reads as follows:75 Subject to such conditions and limitations as may be prescribed the court may issue a Commission- (A) to examine any person; (B) to make a local investigation; (C) to examine or adjust accounts; (D) to make a partition; (E) to hold a scientific technical or expert investigation; (F) to conduct the sale of property which is subject to speedy and natural decay and which is in the custody of the court pending the determination of the suit; (G) to perform any ministerial act. Section 75 makes it clear that the court has jurisdiction and power to issue a commission for any of the seven purposes mentioned in clauses (a) to (g) of that section. In the present case we are not concerned with the purposes mentioned in Clauses (a) (c) (d) (f) and (g) at all. As indicated hereinabove the learned Judge of the trial court has purported to exercise the jurisdic- tion and power to appoint the Commissioners for the purposes mentioned in Clauses (b) and (e) ( 27 ) ORDER XXVI Rule 9 of the C. P. Code deals with the issuance of commission for local investigation and that would be corresponding to the purpose mentioned in Clause (b) of Section 75 of the C. P. Code Rule 10a of Order XXVI deals with the issuance of commission for scien- tific investigation i. e. for the purpose corresponding to the one mentioned in Clause (e) of Section 75 of the Code or Civil Procedure ( 28 ) IN the present case issuance of commission or directions given to the Commissioners to copy/transfer/transcribe the dam/material recorded or maintained on the computers on the floppy discs with the assistance of experts could never be said to be an appointment of the Commissioner or direction to the Commissioner for the purpose of making local investigation and asking the Commissioner to get the data/material recorded and contained on the computers cop- ied/transferred/transcribed on the floppy discs and to bring the floppy discs to the court for the purpose of enabling the plaintiff to rely upon that data/material at the trial could never be said to be carrying out local investigation. There was nothing on the premises of the defendants which was required to be locally investigated. The case is therefor clearly out of the scope of the issu- ance of commission for the purpose of making local investigation. A bare reading of the opening words of Rule 9 of Order XXVI would make it clear that a commission for local investigation could be issued if the court deems it to be requisite or proper for the purpose of elucidating any matter in dispute or for ascertaining the market value of any property etc. A bare reading of the opening words of Rule 9 of Order XXVI would make it clear that a commission for local investigation could be issued if the court deems it to be requisite or proper for the purpose of elucidating any matter in dispute or for ascertaining the market value of any property etc. In the present case there was no question of elucidating any matter in dispute for which the local investigation of the type which was contemplated by the learned trial Judge while passing the order on Exh. 8 would be necessary. ( 29 ) THE case is also not covered by Clause (a) of Section 75 of the Code of Civil Procedure and Rule 10 of Order XXVI of the Code of Civil Procedure. What was sought to be done by the order on Exh. 8 was not in any sense to hold scientific technical or expert investigation. What was sought to be done was only to bring to the court on floppy discs the data/material which was contained on the computers. Nothing of the sort of expert/scientific/technical investigation was involved in what was sought to be done by the order on Exh. 8. The question that arose in the suit could never be said to involve any scientific investigation for which the issuance of commis- sion could be said to be necessary. ( 30 ) WHAT was sought to be done by the prayer made in Exh. 8 and the order passed by the court hereon is something like this: the defendants had in their possession and power certain material regarding accounts and account entries recorded and maintained on the computers and the plaintiff wanted that material to be brought to the court on floppy discs. It is the plaintiffs case that the defendants maintain accounts on computers and the plaintiff wanted those account materials to be brought to the court. Before the advent of computers the known method of maintaining account was in the shape of entries in the account books. With the scientific advancement and the advent of computers it is now known that the accounts could also be maintained on computers. What is sought to be done by the order on Exh. 8 would be something parallel to this in past viz. With the scientific advancement and the advent of computers it is now known that the accounts could also be maintained on computers. What is sought to be done by the order on Exh. 8 would be something parallel to this in past viz. that the defendants had certain entries in their account books and the plaintiff by seeking an order of the court for issuance of the commission wanted to have those account entries in the account books copied and brought to the court with a view to using those entries at the trial as his evidence. The question is if instead of maintaining the account entries on the comput- ers the defendants had maintained those entries in the account books made of ledger papers etc. could the court have jurisdiction and power to order issuance of a commission for the purpose of getting the copies of those account entries in the account books prepared and brought to the court. The answer simpliciter should be in the negative. If such is the answer in relation to the entries made in the account books the answer should not be different in relation to the entries of accounts made on the computers. In principle it makes no difference whether by the courts order what is sought to be done is copying the account entries from the account books and bringing the same to the court or copying on floppy discs the account entries and the data and material recorded on the computers and bringing those floppy discs to the court. For such a purpose in neither case could the court have any jurisdiction and power to issue a commission. ( 31 ) WHAT is done in this case by Exh. 8. For such a purpose in neither case could the court have any jurisdiction and power to issue a commission. ( 31 ) WHAT is done in this case by Exh. 8. filed by the plaintiff is to seek the assistance of the court in collecting evidence for him and what is done by the court by its order below Exh 8 is to render active assistance to the plaintiff in collecting evidence for him This could certainly never be done and the court certainly has no jurisdiction or power to do this either under Section 75 of the Code of Civil Procedure or under Rules 9 and 10a of Order XXVI of the Code of Civil Procedure ( 32 ) THOUGH in a different context a question very much similar to the one before me arose in the case of Padam Sen and Another v. The State of Uttar Pradesh A. I. R. 19 61 S. C. p. 218. In that case the plaintiff had filed a suit against the defendant for money on the basis of certain promissory notes. The defendants apprehended that the plaintiff would fabricate his books of accounts with respect to payments made by them. The defendants therefore applied for the seizure of the account books of the plaintiff The Additional Munsiff by his order appointed Shri Raghubir Pershad Vakil as the Commissioner to seize all those books of accounts The Commis- sioner accordingly seized those books of accounts and brought them to Ghaziabad. Thereaf- ter the appellants of that case approached that Commissioner with an offer of bribe for being al- lowed an opportunity to tamper with case books of account. Those appellants were therefore prosecuted and ultimately convicted for an offence under Section 165-A of the I. P. Code. The only question that was canvassed on behalf of the appellants of that case was that Shri Ragubir Pershad the Commissioner was not a public servant and therefore the appellants could not be said to have committed an offence punishable under Section 165-A of the I. P. Code. It was con- tended on behalf of the appellants that the Civil Court had no jurisdiction to appoint a Commis- sioner for the purpose of seizing the account books of the plaintiff. It was con- tended on behalf of the appellants that the Civil Court had no jurisdiction to appoint a Commis- sioner for the purpose of seizing the account books of the plaintiff. The contention was that neither under Section 75 nor under Order XVII of the Code of Civil Procedure the Civil Court had any jurisdiction or power on the facts of the case to appoint a Commissioner for the pur- pose of seizing the account books of the plaintiff. On behalf of the State-Prosecution the order ap- pointing the Commissioner was sought to be supported by placing reliance on Section 151 of the C P Code In that connection Their Lordships of the Supreme Court in paragraph 7 of the report examined the scheme of Section 75 and Order XXVI of the C. P. Code. It appears that before Section 75 of the C. P. Code and the corresponding provisions of the Order XXVI came to be amended there were only four purposes enumerated in Clauses (a) (b) (c) and (d) of Section 75 for which the Court was empowered to issue commissions of course after the amend- ment three new purposes envisaged by Clauses (e) (f) and (g) in Section 75 and certain Rules in Order XXVI have been added so far as this addition is concerned for our purpose only Clause (e) of Section 75 and Rule 10-A of Order XXVI would be relevant and I have dealt with the same hereinabove and I have held that the present case is not even governed by the scope of holding a scientific technical or expert investigation Reverting to the Supreme Court decision in the case of Padam Sen it was decided on the basis of Section 75 as it stood before the amendment and in para 7 of the report Their Lordships have said that Section 75 of the Code empowers the Court to issue a commission subject to the condition and limitation which may be prescribed for four purposes; viz. the purposes mentioned in Clauses (a) (b) (c) and (d) of Section 75 of the C. P Code It was submitted before the Supreme Court on behalf of the appellants of that case that the powers of the court to issue a commission must be found within the four corners of the Code and that when the Code has expressly dealt with the subject-matter of Commissions in Section 75 the Court cannot invoke its inherent powers under Section 151 and there by add to its powers The argument on behalf of the appellants was sough to be met by the State-Prosecution by submitting that the Code is not exhaustive and the courts in the exercise of its inherent powers can adopt any procedure not prohibited by the Code expressly or by necessary implication if the Court consider it necessary for the ends of justice or to prevent abuse of the process of the Court. ( 33 ) IN paragraph 8 of the report after reproducing Section 151 C. P. Code Their Lordships of the Supreme Court observed as follows: The inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and therefore it must be hold that the Court is free to exercise them for the purposes mentioned in S. 151 of the Code when the exercise of those powers is not in any way in connect with what has been expressly provided in the Code or against the intention of the Legislature. They are complementary to those powers and therefore it must be hold that the Court is free to exercise them for the purposes mentioned in S. 151 of the Code when the exercise of those powers is not in any way in connect with what has been expressly provided in the Code or against the intention of the Legislature. It is also well recognized that the inherent power is not to be exercised in a manner which will be contrary to or different from the procedure expressly provided in the Code ( 34 ) AFTER making the aforesaid observations coming to the facts of that case this is what Their Lordships of the Supreme Court have said in paragraphs 9 10 and 11 of the Report9 The question for determination is whether the impugned order of the additional Munsif ap- pointing Shri Raghubir Pershad Commissioner for seizing the plaintiffs books of account can be said to be an order which is passed by the Court in the exercise of its inherent powers The inher- ent powers saved by Section 151 of the Code are with respect to the procedure to be followed by the Court in deciding the cause before it These powers are not powers over the substantive rights which any litigant possesses specific powers have to be conferred on the courts for passing such orders which would affect such rights of a party. Such powers cannot come within the scope of inherent powers of the court in the matters of procedure which powers have their source in the Court possessing all the essential powers to regulate its practice and procedure. A party has full rights over its books of account. The Court has no inherent power forcibly to seize its properly If it does so it invades the private rights of the party Specific procedure is laid down in the Code for getting the relevant documents or books in Court for the purpose of using them as evidence A party is free to produce such documents or books in support of its case as may be relevant. A party can ask the help of the Court to have produced in Court by the other party such documents as it would like to be used in evidence and are admit- ted by that party to be in its possession. A party can ask the help of the Court to have produced in Court by the other party such documents as it would like to be used in evidence and are admit- ted by that party to be in its possession. If a party does not produce the documents it is lawfully called upon to produce the Court has the power to penalize it in accordance with the provisions of the Code. The Court has the further power to draw any presumption against such a party who does not produce the relevant document in its possession especially after it has been sum- moned from it. Even in such cases where the Court summons a document from a party the Court has not been given any power to get hold of the document forcibly from the possession of the defaulting party. 10 The defendants had no rights to these account books. They could not lay any claim to them They applied for the seizure of these books because they apprehended that the plaintiff might make such entries in those account books which could go against the case they wore setting up in Court The defendants request really amounted to the Courts collecting documentary evidence which the defendants considered to be in their favour at that point of time 11 is no business of the Court to collect evidence for a party or even to protect the rival party from the evil consequences of making forged entries in those account books If the plaintiff does forge entries and uses forged entries as evidence in the case the defendants would have ample opportunity to dispute those entries and to prove them forgeries11 We are therefore of opinion that the Additional Munsif had no inherent power to pass the order appointing a Commissioner to seize the plaintiffs account books The order appointing Shri Raghubir Pershad as Commissioner for the purpose was therefore an order passed without jurisdiction and was therefore a null and void order. ( 35 ) THUS it is clear that in Padam Sens case. ( 35 ) THUS it is clear that in Padam Sens case. Their Lordships have clearly laid down that a party has full rights over its books of accounts and the Court has no inherent power forcibly to seize its property and if the Court did so that would amount to the invasion on the private rights of the party Their Lordships of the Supreme Court in para 9 of the report clearly indicated that a specific procedure is laid down in the Code for getting the relevant documents and books in Court for the purpose of using them us evidence The various modes that could be adopted for the purpose have been indicated in that paragraph The different consequences that would follow if a party who is legally called upon produced the documents or account books in its possession fails to do so have been indicated. Even so it has clearly been laid down that the Court has not been given any power to get hold of the documents forcibly from the posses- sion of the defaulting party. IN Para 10 of the Report Their Lordships of the Supreme Court clearly observed that the defendants of that case had no right to the account books of the plaintiff and the defen- dants request before the Civil Court really amounted to the Courts collecting documentary evidence that the defendants considered to be in their favour at that point of time. Then Their Lordships of the Supreme Court clearly laid down as a proposition of law that it is not the business of the Court to collect evidence for a party or that even to protect a rival party from the evil consequences of making forged entries in the account books and if the plaintiff did forge entries and use the forged entries as evidence in the case the defendants would have ample op- portunity to dispute the entries and prove them to be forged With these observations in para 11 of the report Their Lordships held that the Civil Court in that case had no inherent powers to pass an order appointing the Commissioner to seize the plaintiffs account books. Therefore the order appointing the Commissioner for that purpose was an order passed without jurisdiction and the same was therefore null and void. Therefore the order appointing the Commissioner for that purpose was an order passed without jurisdiction and the same was therefore null and void. Of course the question in that case arose be- fore the Supreme Court in a criminal trial where the contention was that the Commissioner to whom the appellants of the case offered bribe was not a public servant as he was not appointed under an order passed by the court having jurisdiction to pass the same. But the principle of law bearing on Section 75 of the C P Code read with Order XXVI and Section 151 of the c. p. Code is clear the same having been enunciated in a criminal case notwithstanding The principle of law is that the courts jurisdiction and power to appoint a Commissioner should flow from Sec- tion 75 read with Order XXVI of the C. P. Code and if the jurisdiction to pass an order appointing the Commissioner cannot be traced either to Section 75 or to Order XXVI of the Code of Civil Procedure the Court cannot fall back upon Section 151 to pass such an order appointing the Commissioner This in my opinion is the law laid down by Their Lordships of the Supreme Court in Padam Sens case which was very heavily relied upon by Mr. D. D. Vyas for the Revi- sion Petitioners Applying the proposition of law laid down by Their Lordships of the Supreme Court in Padam Sens case to the facts of the present case it has got to be said that as the case for an order made out in Exh X did not fall in an of the clauses of Section 75 of the C. P. Code an as it clearly did not fall within Rules 9 and 10a of Order XXVI of the C. P. Code the appointment of Commissioners can never be justified by taking resort to Section 151 of the C. P. Code. As I have hereinabove indicated with reference to the observations made by the trial Court in para 6 of the order below Exh. 36 the Court while passing an order on Exh. 8 purported to do so in exercise of its powers under Rules 9 and 10a of Order XXVI. As I have hereinabove indicated with reference to the observations made by the trial Court in para 6 of the order below Exh. 36 the Court while passing an order on Exh. 8 purported to do so in exercise of its powers under Rules 9 and 10a of Order XXVI. I have herein indicated that the case was clearly out of the scope of Rules 9 and 10a of Order XXVI of the C. P. Code and it was equally out of the scope of Clauses (b) and (e) of Section 75 of the Code. That being the position the Court had no jurisdiction to pass an order such as the one it has passed on Exh. 8. Bypassing that order on Exh. 8 the Court has ordered collection of documentary evidence for the plain- tiff and as laid down by the Supreme Court in Padam Sens case the Court had no business to collect evidence for any party to a suit or even to protect the other party from the civil conse- quences which would follow if an order was not made. Applying the ration of Padam Sens case to the facts of the case before me I have no doubt in my mind that the trial Court had no jurisdiction or power whatsoever to pass the order which it has passed on Exh. 8. ( 36 ) MS. V. P. Shah the learned Counsel for the plaintiff-opponent relied upon the decision in the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal A. I. R. 1962 S. C. p. 527 in which the Padam Sens case (supra) has been referred to. Manohar Lal s case had a bearing on the courts powers to issue temporary injunction in cases which were not governed by the provi- sions of Order XXXIX Rule 1 of the Code of Civil Procedure. On one hand in that case it was contended that if the case is not clearly governed by Order XXXIX Rule 1 C. P. Code the court would have no power to issue interim injunction taking resort to Section 151 of the Code of Civil Procedure. On the other hand a contrary proposition was canvassed. On that question the Su- preme Court was divided in its opinion. On the other hand a contrary proposition was canvassed. On that question the Su- preme Court was divided in its opinion. Justices K. N. Wanchoo K. C. Das Gupta and Raghubar Dayal took the view in favour of the proposition that in a case which is not governed by Order XXXIX Rule 1 C. P. Code if the facts so justified the Court can resort to Section 151 of the Code of Civil Procedure and issue temporary injunction. On the other hand Justice J. C. Shah held that the Civil Court generally has no inherent jurisdiction in cases not covered by Rules I and 2 of Order XXXIX Civil Procedure Code to issue temporary injunction restraining parties to the proceedings before it from doing certain acts. Both the majority view in that case as also the minority view of Justice J. C. Shah have considered the decision in the case of Padam Sen (supra ). However it is clear that in Manohar Lals case Their Lordships of the Supreme Court have neither over-ruled nor disapproved the view expressed in Padam Sens case. It would be interesting to note that Raghubar Dayal J. was a party to both the decisions (1) in Padam Sens case and (2) in Manohar Lals case. In Padam Sens case the opinion of the court was unanimous and was rendered by Raghubar Dayal J. In Manohar Lals case also the opinion of the majority of the Court was rendered by Raghubar Dayal J. Neither on the minority view in Ma- nohar Lals case nor in the majority view in that case the proposition of law laid down by the Supreme Court in Padam Sens case has been over-ruled disapproved or dissented from. The proposition of law laid down in Padam Sens case therefore remained unaffected even by Manohar Lals case though in Manohar Lals case Padam Sens case has been specifically referred to and analysed. The proposition of law laid down in Padam Sens case is therefore the correct principle of law which holds the field the decision in the case of Manohar Lal notwith- standing. The proposition of law laid down in Padam Sens case is therefore the correct principle of law which holds the field the decision in the case of Manohar Lal notwith- standing. The proposition of law laid down in Padam Sens case as indicated hereinabove when applied to the facts of the case before me would go to show that the trial court here had no jurisdiction and/or power to appoint the Commissioner for getting or to direct the Commis- sioner appointed to get the copies of the data/ material contained in the computers prepared on floppy discs with the assistance of the experts in the line. That order being clearly without juris- diction has got to be set aside in this revision petition and appropriate orders consequent upon setting aside that order in the faces and circumstances of the case shall have to be passed. ( 37 ) IN the view what I have taken about the order on Exh. 8 that order as said just now is required to be set aside There would therefore remain no question of considering the first re- quest of defendant No 5 in Exh. 36 for the stay of the further execution of the order on Exh. 8. However as said above so far as Exh. 5 the injunction application is concerned Ms V. P. Shah the learned Counsel for the plaintiff-opponent was agreeable to an order directing the trial court to expeditiously hear and decide that application Exh. 5. ( 38 ) IN the result the order passed by the trial Court on Exh 8 is hereby set aside The contest- ing defendants are at liberty to remove the locks and seals applied by the Court Commissioners to their computers discs and other material If there be in the possession of the court any keys of the locks appllied to the rooms cupboards or boxes wherein the computers discs etc. might have been kept or to the computers and other material then the keys alongwith the discs etc. that may be in possession of the trial Court should be handed over by the trial Court immediately to the concerned defendant. THE trial Court shall give as high a priority to the hearing and disposal of the plaintiffs interim application - Exh 5 as is possible to be given regard being had to the exigencies of other matters before it. THE trial Court shall give as high a priority to the hearing and disposal of the plaintiffs interim application - Exh 5 as is possible to be given regard being had to the exigencies of other matters before it. The Rule is made absolute to the aforesaid extent. .