1. This case has been referred to a Division - Bench by the learned Judge before whom it was first posted for hearing as the point Involved for decision is said to be a novel one about which there Is no ruling of tills Court.
The question raised is whether a stranger can be directed or rather compelled at the Instance of a party to & suit to allow a Commission appointed by the Court to enter upon his lands for purpose of inspection and preparation of an inventory as regards stumps of trees etc.
On the application I. A. 23 filled by the plaintiff in a suit relating to partnership after passing of a preliminary decree a Commissioner was appointed to make a report about the quality & number of trees cut and removed some years ago by seeing the stumps. It appears that the petitioner sold the trees to the defendant in the suit under Ex. VIII or Ex. M and that the information sought for has a bearing on the final decree to be passed in the case. The petitioner offered obstruction to the commissioner when he tried to enter upon his lands and thereupon an application, I. A. XXXI for removal of the obstruction was filed by the plaintiff. The learned Sub-Judge allowed the application rejecting petitioner's contentions arid the correctness of this is required to be examined.
2. It is conceded that the order can be Justified if the provisions of Order 39, Rule 7, Civil P. C. are applicable to the case and not otherwise.
The said Rule is as follows: 'The Court may, on the application of any party to a suit, and on such terms as it thinks fit,
(a) make an order for the detention, preservation or inspection of any property which is the subject-matter of such suit, or as to which any question may arise therein;
(b) for all or any of the purposes aforesaid authorise any person to enter upon or into any land or building in the possession of any other party to such suit;'
X X X , X
As is evident from the words in the Rule, an order of the kind mentioned therein can be passed only with respect to property which is the subject matter of the suit. Admittedly the lands belong to the petitioner and are not included in the litigation. There are also no trees at present on the lands. It is difficult to hold that the stumps alleged to be and if at all in existence are the subject matter of the suit, whatever may be the view as regards the trees which were cut and removed some years ago after sale to one party or the other in the
3. A more important point than this which has to be taken into account is that petitioner isnot a party to the suit. Clause (b) of Rule 7 expressly (mentions that the person against whom the ordermay be made should be a party to the suit.
Sri Chandrasekhar on behalf of the respondent argued that it is enough if the requirement of Clause (a) about the property being the subject matter of the suit is satisfied and that Clause (b) is disjunctive. He did not refer to any case in support of such a construction. -- 'Jitendra Nath v. Asoke Nath, AIR 1919 Cal 312 (A), cited for the petitioner is distinguishable as the order was one against a party to the action but it suggests that he should have at least control over the property he is called upon to produce.
As pointed out by Ameerali J. in -- 'Dhoroney Dhur y. Radha Gobind', 24 Cal 117 (B), the words of Order 39, Rule 7, Civil P. C. are the same as in the English Supreme Court rule. In --'Comes & Son v. Hayward', 1913-1 KB 150 (C), the construction, of Order 12 Rule 3 of the County Court Rules 1903 and 1904 Similar to Clause 2 of Order 39 Rule 7, Civil P. C. was raised. It was held that an order cannot be made under the rule to inspect the property of several tenants in common, some of whom are not before the Court. Reliance was placed in that case on the observation in -- 'Kearsley v. Philips', (1883) 10 Q. B. D. 465 (D) that
'the right to the production and inspection of documents does not apply to documents which are not in the sole possession or power of the party to the suit who is called upon to produce them but are only in his possession or power jointly with some other person who is not 'before Court'.
with the remark that those words apply to the case and that the other co-tenants should have been made parties to the action. There is stronger 'reason for not allowing inspection in the present case as the lands are the exclusive property of the petitioner and the defendant has no interest whatever in these.
4. Except in cases such as representative suits a person who is not a party to a proceeding is not bound by orders passed therein and as such the court should avoid contingency of causing unnecessary annoyance and harassment to third parties by passing orders on the ground that these would further the interests of a litigant. The proper course to be adopted if the order is to be binding on them is to implead them as parties to the action.
5. The order of the lower Court suffers from other defects. It has been stated in several cases that ordinarily notice should' be given to the party against whom the order under the Rule is sought or (sic) to be enforced. While that is so when the person concerned is a party to the suit, there is greater need for it in the case of a third party. It is not shown that there was urgency or other justifiable reason to dispense with notice to the petitioner. The learned Judge seems to be influenced by the fact that the petitioner was represented by counsel for the defendant. This cannot be a ground to pass an order not warranted by law and extend the scope of the Rule to the prejudice of persons not concerned with the proceedings. The petitioner was not even asked if he has any objection to the application of plaintiff and when he protested against enforcement of the order he is directed to give way as if there is an obligation on him in relation to the plaintiff.
The order is unjust and summary. It is therefore set aside. I. As. 23 and 31 are both dismissed. Parties will bear their own costs in this Court.
6. Order set aside.