D. S. Dave J.
1. The above noted appeal and revision arise out of same case and therefore they are disposed of together.
2. The facts giving rise to them are that Ramswarup, who is appellant in the appeal and non-petitioner No. 1 in the revision application, has filed a suit for possession of gold and silver ornaments and utensils in the court of the learned District Judge, Jodhpur. It has been averred by him that he was adopted as a son by Shrikishan, deceased husband of defendant No. 1, Mst. Kesar. Bansilal, defendant No. 2 is brother of defendant No. 1. 4 It has been alleged by the plaintiff that defendant No. 1 has given certain ornaments to defendant No. 2 and that she wants to deprive the plaintiff of other ornaments and utensils which are in her possession on behalf of the plaintiff. He has filed with the plaint two lists -- first being about those articles which are said to have been given away to defendant No. 2 and the other about the ornaments and utensils which are still in possession of defendant No. 1.
3. On the same date on which the suit was instituted, i. e. 15-10-56, the plaintiff presented an application requesting the court to appoint a receiver and direct him to take into his possession the disputed property. The trial court allowed this application, appointed a receiver and directed him to take possession of the disputed property and prepare its inventory. It appears that after the said order, the receiver put his locks on a few rooms and also pasted slips on the door.
On 12-11-56, the plaintiff moved another application in the trial court stating that the receiver had locked 7 or 8 rooms which also contained certain things belonging to the plaintiff. In particular, it was mentioned that account books, rent notes and other papers belonging to the plaintiff and which related to the property for which the suit was filed, were also placed in those rooms. It was, therefore, prayed that the receiver should be directed to prepare an inventory of the ornaments and utensils in dispute and that other papers and articles belonging To the plaintiff should be ordered to be returned to him or in the alternative the receiver should be asked to prepare their inventory also and keep them in his custody.
On 21-11-56, the trial court passed an order that the receiver should prepare an inventory only of those ornaments and utensils about which the suit was filed. It rejected the plaintiff's application for preparing an inventory of other articles which were not claimed in the plaint. The plaintiff felt aggrieved by this order and he has preferred an appeal against it. It may be mentioned here that after the said appeal was filed, an interim order was passed on 30-11-56 by this Court as below:
'The court below will get a list of all the account-books, found in the rooms, which have been locked, prepared by the receiver.'
4. Thereafter, learned counsel for the plaintiff moved another application in the trial court under Order 39 Rule 7 and Section 351 of the Civil Procedure Code. It was contended by the plaintiff that Order 39 Rule 7 authorised the trial court not only to pass an order for detention, preservation or inspection of any property which is the subject-matter of the suit but also of other property 'as to which any question may arise therein'. It was urged before that court that a question could arise as to the account books which contained all the details about the property in dispute and that if thoseaccount-books were not preserved the plaintiff would be put to a great loss. This applicationwas hotly contested by the defendant. The trial court, however, came to the conclusion that 'the course sought by the plaintiff was covered by second part of Order 39 Rule 7 Clause (a). It, therefore, ordered the receiver that along with the list of gold and silver ornaments and utensils he should also make a list of the account books and the following documents:
1. Documents which strictly related to ornaments and utensils.
2. mortgage-deeds (a) by Meghraj Pancholi. (b) by Kalyansingh.
3. Rent notes executed by Meghraj, Kalyansingh, Lalchand, Ghewarchand, Narain-das and Pukhraj.
4. 5 pattas of houses and shops and no other documents.
It is against this order that the revision application has been filed.
5. It would be proper to deal with the revision application of the defendant first because so far as the plaintiff's appeal is concerned, he has, after the institution of the appeal, got from the trial court, much more relief than what he has sought in appeal and so there is nothing left therein,
6. Now, to start with the revision application, the defendant's learned counsel has urged that the only property in dispute in this case is that which is mentioned by the plaintiffs in the two lists presented with the plaint and therefore the trial court had no jurisdiction to pass any order with regard to property other than that comprised in the said lists or even if it had jurisdiction, it has committed material irregularity in directing the receiver to make inventory of other property.
Learned counsel for the plaintiff has urged on the other hand that under Order 39 Rule 7 (1)(a) of the Civil Procedure Code, the trial court could pass an order not only with regard to the property in dispute but about other property also as to which a question could arise in the suit. The decision of the point in dispute thus turns upon the interpretation of Order 39, Rule 7(1) (a) which runs 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.'
7. Learned counsel for the plaintiff has urged that the account-books contain the details about the ornaments and utensils in dispute and, therefore, the trial court's order regarding their detention, preservation or inspection comes within the ambit of the clause 'as to which any question may arise therein.'
8. We have given our careful consideration to the said arguments, but we find ourselves unable to accept it as correct. In our opinion, Order 39 Rule 7(1)(a) is primarily meant toempower the court to make an order about the detention, preservation and inspection of the property in dispute in the suit but it further authorises the court to pass similar orders about other property as to which any question might arise therein. This does not mean that the Court is authorised to pass an order on the application of one party to make a search of the documents which might be in the possession of the opposite party and then detain them by saying that a question might arise about them in the suit.
If the books of accounts or other documents are not themselves the subject-matter of dispute in a suit then they can only serve the purpose of evidence. If a party who is in possession of such evidence does not produce it in spite of being asked to do so by the court, tbe court is free to draw an adverse inference against that party; but it has no authority to issue a search-warrant or any order of the sort and take the documents into its custody under this Order. The word 'property' is a term of wide import and covers both movable or immovable and corporeal or incorporeal property. For instance, 'even benefit arising out of land' or 'covenants running with the land' are also Included within the meaning of property.
We think that by using the words 'as to which any question might arise therein', the legislature meant to provide for the detention, preservation and inspection of that property which is incidental to the property in dispute and about which a question may arise in the suit. For instance, if there is a suit for possession of a certain immovable property and if the plaintiff alleges that there is a danger to other property appertaining to the property in dispute for example, some property which is supporting the property in dispute and from which plaintiff also seeks a right of support or if some easement which pertains to the property in dispute is in jeopardy, the court may proceed to make an order about it.
Similarly in the case of movable property like the one involved in the present case, a question may arise about some precious jewellery-boxes in which the jewellery in dispute used to be placed. Such boxes may not be included in the plaint but if a question arises about them and if the court considers it necessary to make an order about their inspection, detention, preservation, it may pass an order about them. But this rule is not meant to authorise the court to pass orders about documents which are not the subject-matter of dispute and which, are only of evidentiary value and no more.
We therefore, agree with the defendant's learned counsel that the trial court has committed material irregularity in the exercise of its jurisdiction in so far as it has passed its order dated 6-12-1956 under Order 39 Rule 7 (1) (a) with regard to property other than that which is the subject matter of dispute in the suit and as to which no question can arise in the suit.
9. Learned counsel for the plaintiff hag referred to Totaram Ichharam Wani v. DattuMangu Wani AIR 1943 Bom 143 (A). In that case it was held that a Judge had power under Order 39 Rule 7 to give the Commissioners authority to dig up the ornaments alleged to be in the defendant's land. It may be pointed out that this case is not helpful to him because the property which was ordered to be dug out from the defendant's land was the subject-matter of dispute in the suit and the question of interpreting the words 'as to which any question might arise therein', did not arise in that case.
10. We are next referred to Mahamed Basek v. Tahidannessa AIR 1919 Cal 429 (B).In that case it was observed that :
'an order under Order 38 Rule 7 directing the preparation of an inventory of the property which is the subject-matter of a suit should be made only where such inventory is essential for a proper decision of the case and not otherwise'.
It would suffice to say that this observation also does not help the plaintiff since it does not say that the court may direct the preparation of an inventory of account-books or of property which is not the subject-matter of dispute in the suit.
11. Reference has also been made to Amulya Kumar v. Annada Charan Das AIR 1933 Cal 475 (C). In that case, all that was decided was that where the question to be decided is whether certain structures are old or new, the proper procedure is to issue commission under Order 39 Rule 7 and not under Order 26 Rule 4 or 9. In this case also there was no pointed discussion about the interpretation of the words 'as to which any question might arise therein'. Still it indirectly supports our view that, if in a suit about the possession of an immovable property, a question arises about certain structures being old or new, the 'court may pass an order about their inspection or preservation. This case also does not support the view that such an order may be passed under Order 39 Rule 7(1)(a) even about documents which are not the subject of dispute and which are of evidentiary value only.
12. On the other hand it was held in Rafiqa Begam v. Aisha Begam AIR 1945 All363 (D) that:
'there is no provision in the Civil Procedure Code which entitles a plaintiff in a case of this kind, when he files a suit, to have a search warrant taken, from the civil court and with the help of that, get hold of all the papers from the defendant's house and then have them inspected one by one and choose suck of them as the plaintiff considers may be of assistance to him in proving his case.'
13. In view of what we have discussed above, we cannot hold that the trial court was justified in directing the receiver under Order 39 Rule 7 (1), C. P. C. by its order dated 6-12-56 to make a list of the documents mentioned therein. It has committed material irregularity in adopting this procedure and therefore its order has got to be set aside.
14. Learned counsel for the plaintiff has urged in the end that even if the provisions of Order 39 Rule 7(1)(a) are not applicable, his client had also invoked the inherent powers of the court and that the trial court's order may be maintained under that section. It is urged that the documents, i. e., the Bahies which contain entries relating to the ornaments and utensils in dispute have come into the possession of the court and, therefore, they should be kept there and if they are destroyed or tampered with by the defendants, the plaintiff would be put to heavy loss. Learned counsel for the defendant says that these documents were in possession of his client and the plaintiff has no right to get them kept in the court so long as they are not produced by her.
Learned counsel for the plaintiff urges that they were in the plaintiffs possession and if the court does not think it proper to keep them in the receiver's or the court's custody, they should be returned to him. It may be observed that there is no material before us at present on whose basis it may be determined as to who was in possession of the documents or of the rooms in which the documents were placed. This difficulty has been created by the receiver. According to the order of the trial court dated 21-11-56, he should have taken into his custody only the property in dispute. Instead of that, he placed his locks on several rooms. He must now release from, his custody all other property except that which is mentioned in the list presented with the plaint and which is the subject of dispute in the suit. Even under Section 151, we cannot direct him to make a list of the following property:
1. mortgage deeds (a) by Meghraj Pan-choli (b) by Kalyansingh.
2. Rent-notes executed by Meghraj Kalyansingh, Lalchand, Ghewarchand, Narain-das and Pukhraj.
3. 5 pattas of houses and shops and no other document.
It is obvious that the above documents can only relate to some immovable property which is not the subject-matter of dispute in the suit. No question can possibly arise in the suit with regard to immovable property or the above documents. The trial Court's order about them has, therefore, got to be set aside.
15. As regards the account books or Bahis relating to the ornaments and utensils in dispute in this case, we think that since they have somehow come into the possession of the receiver on behalf of the Court, it would not be proper to hand them over to any party till the decision of the case, for if they are tampered with in any way, it would be difficult for the Court to arrive at the correct conclusion. Assuming without deciding that they were in possession of the defendant, the plaintiff can now request the trial Court to direct the defendant to allow him inspection of these documents and can also request that Court to direct the defendant to produce the same in the Court.
In view of the strained relations between the parties, anything may happen to them before a proper application for the above purposes is made by the plaintiff and it is decided by the trial Court. We, therefore, think it proper to use our inherent powers under Section 151, C. P. C. to direct them to be kept in the custody of the Court till the decision of the case.
16. The appeal and the revision application are, therefore, partly allowed and partly dismissed as noted above. That is, the trial Court will get the list of the ornaments and utensils which are in dispute in the suit and the list of the account-books or Bahis or documents relating to the property in dispute in the suit, prepared by the receiver and they will be kept in the custody of the Court till the decision of the case. The receiver will release from his custody all other property as early as possible after informing both the parties about the date and time on which he is to release the same, so that if there is dispute about them as to who was in their possession before the rooms were locked by the receiver they may take recourse to law. The parties will bear their own costs in this Court.