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Chunilal Dahyabhai Vs. Dharamshi Nanji and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 372 of 1968
Judge
Reported inAIR1969Guj213; (1969)GLR734
ActsCode of Civil Procedure (CPC), 1908 - Sections 115 - Order 1, Rule 10 - Order 11, Rules 15, 18 and 20 - Order 13, Rule 3; General Clauses Act; Provincial Small Cause Courts Act - Sections 25; Stamp Act - Sections 2(22)
AppellantChunilal Dahyabhai
RespondentDharamshi Nanji and ors.
Appellant Advocate Suresh M. Shah, Adv.
Respondent Advocate J.R. Nanavati,; H.M. Mehta and; R.H. Pandya, Advs.
DispositionPetition allowed
Cases ReferredBagyalakshmi Ammal v. Srinivasa Reddiar
Excerpt:
civil - inspection - order 11 rule 20 of code of civil procedure, 1908 - suit filed for rendition of accounts in relation to act done by appellants - civil judge directed appellant to give inspection of all documents referred in affidavit to defendants - appellants challenged order of civil judge - court empowered to order inspection of documents if it feels necessary for disposal of suit - court passing order of inspection ignoring provisions of order 11 rule 20 would be void - no evidence to show that court had taken provisions of order 11 rule 20 into consideration - order set aside - matter referred back to court to decide afresh. - - --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.....orderj.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 section 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. j.r. nanavati and h. m. mehta raised a preliminary objection regarding the maintainability of this revision petition.....
Judgment:
ORDER

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 Section 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. J.R. Nanavati and H. M. Mehta raised a preliminary objection regarding the maintainability of this revision petition under Section 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 Section 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 the case of Shah Prabhudas Ishwardas v. Shah Bhogilal Nathalal : AIR1968Guj236 .

3. Before I advert to the decision cited above, in support of the contention regarding preliminary objection, I first propose 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 purposes. 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 office 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 shall be 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 in his affidavit 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 suit or 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. 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. 1 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 Section 115 of the Civil Procedure Code. The 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 or obligations arising out of the pleadings meaning thereby that it must be a controversy in relation to the rights 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 render 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 Section 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, AIR 1964 SC 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 Section 115 of the Civil Procedure Code has observed as under:--

'The section consists of two ports, 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 suit in a Civil Court But 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 Section 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 proceeding would be to impose a restriction upon the exercise of powers of superintendence to 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 bearing 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 Shah J. 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 Court's decision cannot be impugned under Section 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 the decision of a Division Bench of this- Court after referring to the observations made in the aforesaid Supreme Court decision, at pages 653-654 (of Guj LR) = (at p, 238 of AIR), 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 Section 115 is not confined to an entire suit or proceeding but includes an issue or a part of a suit or proceeding and if an order decides an issue or a part of a suit or proceeding, it would be a case decided within the meaning of Section 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 Section 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. The learned advocate Shri Mehta 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 Section 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 plaintiff's to recover the settled amount from the defendants. The document exhibit 4/1 being the foundation of the plaintiff's claim, the direct and inevitable consequence of it is that the plaintiff's claim must fail and the order, therefore, determined by its direct and immediate impact the right 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. 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. The learned advocate Mr. Shah appearing for the petitioner relied upon a decision of Raju J. in the case of Shantilal Chunnilal Shah v. Shantilal Fulchand : AIR1963Guj195 . It has been observed hi that decision that an order passed on an interlocutory application amounts to a 'case decided.' The fact that the third clause of Section 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 (of Guj LR) = (at p. 196 of AIR), 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 Full 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 Section 115 of Civil Procedure Code at p. 700 (of Guj LR) = (at p. 197 of AIR) It has been observed that the words 'case decided1 have not been defined in the Civil Procedure Code. The word 'case' is also not denned in the Civil Procedure Code. But the fact that the third clause of Section 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 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 Pra-sad : AIR1959SC492 as follows:

'Section 115 Civil P.C. 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 . 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. Kamalaksha Chaudhury 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 Section 115. Sir John Beaumont said at p. 142 (of Ind App) = (at p. 242 of AIR):-- There have been a very large number of decisions of Indian High Courts on Section 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-section (c), nevertheless, if the erroneous decision results in the subordinate Court exercising a jurisdiction not vested in it by law or failing to exercise a jurisdiction so vested, a case for revision arises under Sub-section (a) or Sub-section (b) and Sub-section (c) can be ignored. The cases of Babu Flam v. Munnalal : AIR1927All358 and Hari Bhikaji v. Naro Vishwanath, (1885) ILR 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 ease 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-section (b) of Section 115. In Keshardeo Chamria v. Radha Kissen : [1953]4SCR136 , both these judgments of the Privy Council as also the previous judgments in Amir Hussan Khan v. Sheo Buksh Sing. (1883-84) 11 Ind App 237 (PC) and Balakrishna Udayar v. Vasu-deva Aiyar, 44 Ind App 261 = AIR 1917 PC 71, were reviewed and it was held that Section 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 Section 115, Civil P.C., becomes operative'',

9-A. 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 Bhikhabhal : (1967)8GLR851 , 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. The ratio of that decision is the same as that in the earlier decision of his.

11. A Division Bench of the Lahore High Court in the case of Sadaaat Ali v. Mohammed Sajjad Ali, AIR 1929 Lah 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 Section 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, 17 Bom LR 1097 = (AIR 1915 Bom 269). 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 Section 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 Section 115 of the Civil Procedure Code of 1908. Is a word of 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 Section 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 & Co. v. Singer Manufacturing Co., AIR 1933 Lah 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 section 25 of the Provincial Small Cause Courts Act in the case of Laxmanrao Trimbakrao v. Gayadin Sheo Prasad AIR 1937 Nag 136. At P. 137 observations made in 27 Nag LR 251 = (A1R 1931 Nag 17) have been quoted end it is held 'the word 'case' in Section 115 Civil Procedure Code, is wide enough to cover an interlocutory order and therefore it should also be wide enough in Section 25, Provincial Small Cause Courts Act'

12-A. 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 something 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 grant 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 order of decision could be revised by this court in the exercise of its revisional jurisdiction under Section 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. The relevant rules require that a Court should immediately pass a decree for a part of the suit claim if admitted and should not postpone passing of a decree for that part of the claim till the rest of controversy in regard to which leave to defend is granted is decided. The Court refuses to allow those provisions, and postpones that 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, (Sic) The question that would arise would be whether such an order 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 light 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.

13. 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 Section 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. Emphasis was laid on the wordings 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 wrong decision. It may be that the discretion has 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 Section 115 cannot, therefore, have any application. In my opinion a careful reading of the relevant wordings 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 how 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 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 upper-most mind. It is only when those fetters are not there, that court can order inspection in such place and in such manner as 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. Furthermore, 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. 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 a 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.

14. The learned Advocate Mr. Nanavati invited my attention to the case of Razia Begum v. Sahabzadi Anwar Begum. : [1959]1SCR1111 . 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 all the facts and circumstances of particular case, but in some cases, it may raise controversies as to the power of the Court, in contradistinction to its inherent jurisdiction or in other words of jurisdiction in the limited sense in which it is used in Section 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 contradistinction to its inherent jurisdiction, or, in other words, of jurisdiction in the limited sense in which it is used in Section 115 of the Code.'

The controversy may be as well in regard to the power of the Court in regard to certain matters like present one.

15. Mr. Nanavati also invited my attention to the comments made by the 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:--

'Where the propriety of an order made in the exercise of a discretion is challenged in revision, the limitation imposed by Section 115 should be taken into account. In : [1959]1SCR1111 , 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 the Court, in contradistinction to its inherent jurisdiction, or, in other words, of jurisdiction in the limited sense in which it is used in Section 115 of the Code,' and that where the order was within the power of the Court, a discretion exercised judicially by it could not be questioned under Section 115.'

16. 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 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, he has passed an order, it could be said that the court has acted illegally or with material irregularity in the exercise of its jurisdiction. The present case is a case of that type.

17. The learned Advocate Shri Nanavati invited my attention to the observations made by a Division Bench of this Court in the aforesaid decision 1967-8 Guj LR 649 para 8 = (AIR 1968 Guj 236 para 8). The relevant observations are as under :--

'But the question may then be asked: what about Clause (c) of Section 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', Section 115 is not directed towards correcting errors of law in the exercise of jurisdiction. As held by the Supreme Court in Pandurang v. Maruti, AIR 1966 SC 153 (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 : [1953]4SCR136 , the Supreme Curt quoted with approval the observations of Bose J. in his order of reference in Narayan Soneji v. Sheshrao Vithoba AIR 1948 Nag 258 and observed that :-- '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 defects of procedure and not to errors of either law or fact after the formalities which the law prescribes have been complied with.'

18. It 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 . This is the test which must be applied in order to determine whether the case falls within Clause (c) of Section 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 Section 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 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 Section 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 had 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. The 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 the case of Bagyalakshmi Ammal v. Srinivasa Reddiar : AIR1960Mad510 . 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 defendant's 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 this Court to indicate its mind on this controversial question. The Court has to consider whether in a 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 No. 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.

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.


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