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Fatmabai Vs. Hajee Cassam Jusab - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in2Ind.Cas.422
AppellantFatmabai
RespondentHajee Cassam Jusab
Excerpt:
civil procedure code (act v of 1908), order xi, rule 15 - inspection of documents--verbatim et literatim copies may be taken--costs of inspection and copies--practice. - - the principle upon which this right of inspection rests, has been discussed in other cases, and it has been distinctly stated when the question has arisen whether the right to inspect implies the right to take copies. 352 that the general rule of practice with regard to the inspection of documents is that the costs of inspection must be paid by the party inspecting, though, semble, that under exceptional circumstances, such costs may be made costs in the cause......the purpose of. assisting the memory, and is not evidence unless the original is lost. if i have a right to inspection, i can learn the original by heart, and i then have a copy in my mind. what is to prevent me from writing it out from memory when i get home? then why should not a copy be taken? the summons must be allowed.6. then i see the same principle has been followed in bevan v. webb (1901) 2 ch. 59 : 70 l.j. ch. 536 : 49 w.r. 548 : 84 l.t. 609 : 17 t.l.r. 440 where collins, l.j., says:the principle upon which this right of inspection rests, has been discussed in other cases, and it has been distinctly stated when the question has arisen whether the right to inspect implies the right to take copies. it has been held that that right is implied in the right to inspection and why?.....
Judgment:
ORDER

Russell, J.

1. This suit was filed by the two widows of one Hajee Suleman Hajee Cassam against several defendants, and claims amongst other things administration of the estate of the said deceased, and that the rights of the deceased and defendants Nos. 1 to 4 may be ascertained and declared, and for maintenance. The defendants Nos. 1 and 2 have put in a lengthy written statement raising a number of contentions. Stated very shortly the effect of the written statement is this that there is nothing due to the estate of the deceased.

2. In the course of the conduct of the case the usual order for inspection was made; and when the defendants' attorneys found that the plaintiffs' attorneys were copying a large number of documents which had been referred to in their affidavit of documents, they raised objection. They said that copies of documents verabtim et literatim were unnecessary and that time was being wasted; and they declined to give any further inspection, Thereupon, the plaintiffs took out the present summons, which calls upon defendants Nos. 1 and 2 to appear to show cause why they should not give inspection to the plaintiffs of the documents disclosed in the affidavit of documents of the said 1st and 2nd defendants. And it appears the defendants' attorneys declined to allow the inspection to go on unless the sum of Rs. 200 was deposited for the costs of such inspection.

3. Now, obviously a somewhat important point is raised viz., as to the right to take copies of documents, and I have taken the opportunity, since the matter was argued, of looking into the cases on the point.

4. The first thing obviously to refer to is Order XI, Rule 15, of the Civil Procedure Code, 1908. That says:

Every party to a suit shall be entitled at any time to give notice to any other party, in whose pleadings or affidavits reference is made to any document, to produce such document for the inspection of the party giving such notice, or his pleader, and to permit him or them to take copies thereof.

5. That is a distinct assertion that copies are permissible and ought to be allowed and I find that in the case of Pratt v. Pratt (1882) 51 L.J.Ch. 839 Bacon; V.C. says:

Then it is said that the plaintiffs have no right to take copies. Why should they not take copies? A copy is merely for the purpose of. assisting the memory, and is not evidence unless the original is lost. If I have a right to inspection, I can learn the original by heart, and I then have a copy in my mind. What is to prevent me from writing it out from memory when I get home? Then why should not a copy be taken? The summons must be allowed.

6. Then I see the same principle has been followed in Bevan v. Webb (1901) 2 Ch. 59 : 70 L.J. Ch. 536 : 49 W.R. 548 : 84 L.T. 609 : 17 T.L.R. 440 where Collins, L.J., says:

The principle upon which this right of inspection rests, has been discussed in other cases, and it has been distinctly stated when the question has arisen whether the right to inspect implies the right to take copies. It has been held that that right is implied in the right to inspection and why? Because the inspection would not be effectual in the sense in which it was intended to be, unless it carried with it as a corollary that incidental right.

7. To the same effect is the case which arose as to the right of inspection and perusal of the register of debenture stock-holders, viz., the case of Mutter v. Eastern and Midland Railway Co. 38 Ch. D. 92; 59 L.T.: 36 W.R.B. 401 : 57 L.J. Ch. 615 where Lindley L. J. says:

I have not been able to find a single case either at law or in equity in which the Court has ever held that a person having a right to inspect a document has not also a right to take a copy of it, or of so much of it as ho requires for some legitimate purpose. The right to take a copy, is treated as incidental to the right to inspect and the common form of orders to inspect is to inspect and take copies.

8. Therefore, it appears to me that I am bound to hold that in this case the plaintiffs are entitled to take copies of the documents.

9. Then it is said that I ought to make an order under Rule 173 of the High Court Rules that further security be given. The rule is as follows:

Any party seeking discovery by interrogatories shall, before delivery of interrogatories, pay into Court, to abide further order, the sum of Rupees 50 or such greater sum as the Judge may direct. Any party seeking discovery otherwise than by interrogatories shall, if so ordered by the Judge, pay into Court, to abide further order the sum of Rupees 50 and may be ordered further to Pay into Court as aforesaid such additional sum as the Court or a Judge shall direct. The party seeking discovery shall, with his interrogatories or where any payment into Court has been so ordered as aforesaid, with the order for discovery, serve a copy of the receipt for the said payment into Court, and the time of answering or making discovery shall in all cases commence from the date of the service of the interrogatories or order for discovery. The party from whom discovery is sought shall not be required to answer or make discovery unless and until the said payment, if so ordered as aforesaid, has been made.

10. Having regard to the order that I propose to make in this case, I do not propose to order any security to be given by the plaintiffs.

11. It appears from the case of the Republic of Peru v. Weguelin (1872) L.R. 7 C.P. 352 that the general rule of practice with regard to the inspection of documents is that the costs of inspection must be paid by the party inspecting, though, semble, that under exceptional circumstances, such costs may be made costs in the cause. There is a very lengthy judgment of Bovill, C.J., in that case and it appears to me that is a case which I shall be justified in following.

12. Were it not for the rule I have referred to and the practice, I confess it would require a very great deal to make me hold that it was ' absolutely necessary for any party to take verbatim et literatim copies of documents. I had the opportunity of seeing one of the copies made and that copy contained every word and every letter of the document, which obviously adds to expense and delay. However, there is the law and I am bound to follow it.

13. The order which I make is that the summons be made absolute. The plaintiffs to be allowed to continue their inspection and to take copies of any documents, but that the plaintiffs do bear their own costs of taking such inspection and making such copies in any event. The defendants' costs of such inspection to be costs in the cause.

14. I wish to refer to another matter, and that is this, that the correspondence attached to the affidavit, on which the summons was granted, to my mind is absolutely and entirely a waste of money and unnecessary, and I am determined to, as far as I can, stop such a state of things. The last letter of the defendants, attorneys goes over two full brief sheets and is a recapitulation of the whole correspondence before, and, in my opinion, the Taxing Master ought not to allow the costs of this correspond-once except at the outside one letter to the plaintiffs and one letter to the defendants.

15. With this direction costs of the summons to be costs in the cause.


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