1. In Civil Suit Na 1825/81 by 1hopelitkinemkplaintiffs, an application (notice of motion) was given for certain interim orders. The dispute is against family members and relates to number of businesses and large properties. It -appears that there was some Appointment made of arbitrators and certain records was with the arbitrators who are defendant-opponents Nos 9. 10 and 11.
2. In the suit a declaration is sought that the various businesses mentioned in schedule 'N and all the assets and properties of the businesses mentioned in schedule A and described in particular in schedule E were the properties of the entire family in which three branches of the family including that of the plaintiffs had V3 share each and the defendants were liable to render true and full accounts thereof and for partition of the share etc. In the -notice of motion, prayers were made for an interim order and injunction restraining the defendants Nos 1 to 8 from carrying on businesses mentioned in schedule A and from alienating in all the properties of the said businesses and for appointment of receiver of the said businesses for appointment of Commissioner to make inspection and take possession of books of account income-tax files share transfer books etc. The plaintiffs also prayed for an interim order for appointment of a Special officer of the Court to collect the arbitration agreement and all records and proceedings and documents produced in the arbitration proceedings from the arbitrators. A notice of motion was presented on 8th July 1980 and on the same day the Court was moved for urgent ex parte order and the trial Court passed the following order: -
A person to be named by Registrar is appointed as a Commissioner to make inventory of the properties referred to in para (c).
The plaintiffs to deposit Rs 750/-. Another person to be named by Registrar is appointed as a Commissioner to make inventory in respect of point referred in Para Dal the place mentioned herein.
The plaintiffs to deposit Rs.200/- (Rs. Two hundred only).
3. The prayers (c) and (D) are as follows:-
(C)That Commissioner be appointed for making inventory and take possession of all the books of accounts papers, documents, income- tax returns files share registers share transfer books, share transfer forms. Minute books and all other papers documents statements etc-, which may be found at the places of the aforesaid businesses and the residence of the first defendant and 6th defendant whose addresses are given in the cause title of the notice of Motion and he be directed to keep the same in safe custody, of the Hon'ble Court'
(D) That a Special Officer of the Court may be deputed to collect the aforesaid arbitration agreement and all the record and proceedings and documents produced in the arbitration proceedings from one of the arbitrators Shri Navnitlal Chokshi defendant No.11I at the following address, or from such other place where the above mentioned documents are available at present.'
4. For obtaining the above relief, the relevant averments in this connection are in paras61 and63 of the application. In para6l, it is alleged that if the defendants come to know about the institution of the suit. the first and/or sixth defendant is likely to manipulate the accounts in such a manner so as to deprive the plaintiffs ' of their legitimate share and it will also make it difficult for the plaintiffs to prove their case.
5. In para 63, the plaintiffs have stated as follows: -
'The plaintiffs apprehend that if the laid arbitration agreement-and the record ad proceedings of said arbitration are, for one reason or other destroyed or become not traceable, great injustice would be done to the plaintiffs. It is, therefore, necessary in the interest of justice that a Special Officer of the Court may be deputed to collect the said documents from Shri Navnitbhai ChokshL defendant No. I I and to keep the same in the safe custody of the Hon' ble Court. By such an order no injustice or inconvenience is likely to ensue to the defendants. It is also necessary that immediate express order in this behalf be passed so that the above mentioned apprehension may not turn out to he real.
6. The plaintiffs have not mentioned as to under which particular provision of law these prayers were sought and the Court has also not specified any particular provision at the time of passing order.
7. It is contended by the petitioners plaintiffs that this is the only order of appointment of Commissioner under 0. 26 R. W-B and therefore. under subr. (21, (he provisions of R. 10 are applicable and, therefore, all the documents taken possession of by the Commissioner and produced in the Court is to be considered as the evidence taken by film and under R. 10(2), the report of the Commissioner and the evidence is to be treated as evidence in the suit and it is a part of the record and. therefore, there is no need to file any affidavit and pleading to show the relevance, admissibility and reliability of the documents and they are required to be exhibited.
8. An application Ex.100 was presented to the trial Court during the course of arguments at the hearing of the application for interim orders. In the application it was pointed out that the record of arbitration proceedings was kept under the safe custody and now is brought in the Court and it was further claimed that it was required to be ordered it) he made part of (he record of the suit and the files were required to be given exhibit numbers as the same were required to be referred it) at (hat stage and therefore. the prayer was made it take the record of arbitration proceedings on the file of the suit and to give exhibit numbers Io the aid files. The same was objected on behalf of the defendant No. 1 and sonic of the other defendants and the stated that such record brought on the Court Commissioner cannot be taken of record as prayed for was also pointed out that no affidavit referring to the documents had been filed. The learned trial Judge rejected the application with an observation that the plaintiffs if they so desire, shall make necessary affidavit pointing out the relevance and correctness of the documents they rely after giving proper opportunity to the other side to meet with the same. This order is challenged by the plaintiffs by the present revision under Section 115 of the CPC and it is contended that under .0. 26 R 10 R read with R 10(2), the Court ought to have treated all the documents brought by the Commissioner on record as part of the record and should have exhibited the same.
9. The learned Counsel for the petitioners has submitted and clarified that his argument would cover not only the hearing of the interim application. but also the entire suit Lind all the documents are required to be exhibited under these provisions for the purpose of suit also. He had also made it clear that his argument is based on the provisions of P, 10B added by amendment in 1976 and but for that rule, he could not have raised such contention and made any such prayer.
10. It would therefore, be necessary to refer to those provisions. R 10B is a provision for commission for performance of a ministerial set and it reads as follows: -
10B(i) Where any question arising in a suit involves the performance of any ministerial act which cannot. in the opinion of the Court be conveniently performed before the Court the Court may, it for reasons to be recorded, it is of opinion that it is necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit directing him to perform that ministerial act and report thereon to the Court.
(2)The provisions of R. 10 of this Order shall apply in relation to a Commissioner appointed under this rule as they apply in relation to a Commissioner appointed under R. 9.)
11. Since sub- r. 12) applies the provisions of R 1012) that also maybe reproduced here for easy reference.
Rule 10(2) the port of the Commissioner and the evidence taken by him I but not the evidence without the report) shall be evidence in the suit and shall form a the part of record the Court or with the permission of the Court any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report or as to his report or as to the manner in which he has made the investigation.'
12. On the basis of the above rules, the learned Counsel for the petitioners contends that the Commissioner who was appointed to perform the ministerial act of making inventory of the arbitration agreement and of the record and proceedings and the documents produced in the arbitration proceedings has in discharge of the commission taken possession of the documents and made a report and produced the documents in the Court and, therefore, the said report and the documents brought by him (as if it was' evidence taken by' him) be treated as evidence in the suit and made part of the record and be exhibited
13.The learned Counsel for the petitioners argued that R 10B(2) applies to the provisions of R 10 in relation to a Commissioner appointed to perform a ministerial act and made an exception in respect of the documents and materials collected by him and the learned trial Judge ought to have directed the same to be treated as evidence in the suit and be made a part of the record
14. It is not possible to accept the contentions of the petitioners, The effect of the contention is to derogate the ordinary rules of procedure and evidence and there does not appear to be any reason whatsoever for attributing such legislative intention. First of all, the order of appointment of the Commissioner cannot be said to be under R. 10B. The petitioners plaintiffs had not sought order under that rule nor the Court has passed the order under that rule. It appears that the Court had passed the orders in exercise of its inherent powers under S. 151 of the C. P. C. as the Courts have always been moved for passing the orders of inventory.
15. Even assuming that the order was passed under R IOR the order could he for performance of any ministerial act which cannot be conveniently performed before the, Court It is inconvenient for the Court to go and make inventory itself and therefore a Commission is issued for performance of making of an inventory. However, merely because Commissioner has been appointed to perform that ministerial act. the rules of procedure and evidence will not change and will not be different. If the Court itself had performed the act, R 10B would not have come into picture. Merely because the Court has ordered Commissioner to perform the ministerial act, there does not seem to be any reason why the fundamental rules of procedure and evidence should change.
16. It is, however, contended by the learned Counsel for the petitioners that subr. (2) is in simple and unambiguous terms and contains legislative mandate and makes an exception and it has to be given its due and full effect. However, the effect of R 10 which is applicable by virtue of R 10B(2) is not as the petitioners contended Ministerial act is defined in Black's Law Dictionary (Page 899) as one which a person performs - in obedience to the mandate of legal authority without regard to or the exercise of his judgment upon the propriety Of the act being done The dictionary also says that ministerial duty is one regarding which nothing is left to discretion and ministerial function is a function as to which there is no occasion to use judgment and discretion and ministerial officer is one whose duties are purely ministerial as distinct from executive, legislative or judicial not involving exercise of judgment or discretion. The term 'ministerial is used in contrast to judicial, Thus under R. IOR when, a Court appoints a Commissioner for performance of any ministerial act which cannot conveniently be performed before the Court, the Commissioner is not performing any judicial act nor any act which would change the rights of parties or the procedures and rules of evidence so as to prejudicially affect the rights .of parties in the matter of procedure.
17. Moreover, the Commissioner was appointed to make inventory only and he was not appointed to take possession of the documents. Even if he was appointed to take possession of the documents, it would not have made any difference under O. 26 R 1013 the appointment is to perform merely a ministerial act and only those acts which are covered by sub- r. ( 1) i.e. ministerial acts, to which only that sub, r. (2) will apply. so as to attract the application of sub-r. 10(2). Therefore, the report of the Commissioner for the performance of that ministerial act and the evidence if he has recorded himself would become the part of the record in the suit under R. 10(2), but not whatever documents that may be incidentally or in course of the ministerial duty come to his notice and he may take possession there of Such collection of documents is not recording of evidence and he was not appointed for that purpose and if the appointment is construed to such an extent as contended by the petitioners such appointment would be ultra vires the scope of R 1013, R 1013 read with R 10 does not make any radical departure suggested by the learned Counsel for the petitioners In fact, their contention is against the common sense and ordinary rules of convenience and proper conduct of a litigation. Neither the language nor the spirit nor the purpose of R. 1013 justifies such radical departure from the ordinary rules of procedure and evidence which are meant to facilitate convenient trial and fair opportunity the other side
18.The other side has made a legitimate and right grievance that if any documents are referred to at the hearing, about which the other side has no prior notice. not only they will be taken by surprise~ but they will also be prejudiced in view of the large mass of the documents. They may have valid objections about the relevance, admissibility and reliability of the same. Unless the petition plaintiffs refer to and rely upon the same by way pf some pleadings and affidavit, neither the Court would be in a position to conveniently conduct the trial nor the defendants would be having reasonable and effective opportunity to defend
19. In view of the circumstances stated above the impugned order of the learned Trial Judge is perfectly justified and no interference is called for.
20. The learned Counsel for the opponents has raised objections about the maintainability of the revision application on the grounds that (1) there is no case decided and that (2) the trial Court has neither admitted nor rejected any evidence at this stage and admissibility or otherwise of a document even if decided would not be a case decided or even a part of the case decided because no rights and liabilities of the parties are decided It was also pointed out that there was no error of jurisdiction and no material irregularity and no failure of justice or irreparable injuries caused to the petitioners by the impunged order and hence the High Court ought not to entertain and interfere in the revision application. In view of my conclusion that no interference is called for in the present case, it is not necessary to deal with the objections.
21. In the result the revision application fails and is dismissed with costs want of publication in Gujarati in a newspaper.
22. Revision dismissed.