Rajagopala Ayyangar, J.
1. The State of Madras who is the petitioner in this revision petition is the second defendant in the suit filed for recovery of certain transport charges stated to have been incurred by the plaintiff-respondent before me in the course of his activities as a wholesale dealer in food-grains in Kotayam taluk and which extra expenses, he alleged was undertaken in pursuance of a contract with the Government.
2. The plaintiff-respondent filed an application calling upon the Government to produce certain documents. They were produced and when at the time of trial the plaintiff sought to exhibit them, the Government raised an objection to their being exhibited claiming privilege under Sections 123 and 124 of the Evidence Act.
3. The documents in respect of which privilege was claimed by the Collector of South Malabar who originally filed an affidavit in support, of this claim fail under two groups: (1) office notes maintained in the office of the Collector, (2) internal official correspondence which passed between the Collector and his subordinate officials. The claim was rested on the ground of these documents being unpublished official records relating to 'affairs of State' whose publication would be prejudicial to public interests, The plaintiff filed a counter affidavit disputing the privilege claimed by the Collector mainly on the ground that the subject-matter dealt with in the documents related to ordinary commercial transactions and not to 'affairs of State.'
4. The matter was argued elaborately before the Subordinate Judge who after discussing the case law upon the point stated his definition of what constituted 'an affair of State' and was of the opinion that the head of the department was not the sole Judge as to whether any particular, document fell within the meaning of the expression 'relating to an affair of the State' but that the court ought to be satisfied in this regard and that the court had to reach its conclusion not by looking into the relevant documents, as this was precluded by Section 162 of the Evidence Act, but by taking other evidence.
The learned Subordinate Judge next dealt with another objection raised by the plaintiff that the privilege to be claimed under Section 123 of the Evidence Act had to be by the head of the department and not by the Collector. The learned Subordinate Judge dealt with the decisions on this point also and guiding himself mainly by the observations contained in the decision of the Privy Council in 'Robinson v. State of South Australia', 1931 1 AC 704 (A) and of the House of Lords in Duncan v. Cammel Laird & Co., Ltd.', 1942 AC 624 (B) held that the affidavit in support of the claim for privilege would have to be filed by the Minister within whose portfolio the subject of the correspondence fell, if the same had to be acted upon by the court under Section 123 of the Evidence Act. In this view, the learned Subordinate Judge called upon the state of Madras to produce an affidavit from the Minister in charge of the Department stating in it clearly the reason for claiming privilege in respect of each and every one of the several documents.
5. In pursuance of this order dated' 19-1-1951 the Secretary to the Food Department of the Government of Madras, Mr. Kuttalingam Pillai, filed an affidavit on 26-2-1951 in which he stated that he was the head of the Department of Food and Agriculture, that he had gone through the relevant files and was of the opinion that it was essential in the public interest that the communication between the officers and the department should be kept secret and that it would be injurious to public interest to have evidence relating to them being given in court and he accordingly claimed privilege under Section 123 of the Evidence Act. A formal application was also filed by the Government, I. A. No. 467 of 1951, praying that the court might be pleased to uphold the privilege claimed. On this learned Subordinate Judge has passed the order which is the subject of this revision. He dismissed the petition and directed the State to file an affidavit from the Minister in charge of the Department.
6. The State of Madras in this revision petition challenges the Jurisdiction of the court below to direct them to file an affidavit from the Minister if they desire to claim privilege under Section 123 of the Evidence Act. The learned Advocate General for the Government contends that under Section 123 of the Evidence Act the claim had to be made by 'the officer at the head of the department', that the Secretary to the Department was such an officer and that the court below had no Jurisdiction to insist on the Minister in charge filing an affidavit.
7. Before dealing with the merits of this contention it is necessary to consider a preliminary objection raised by Mr. Pocker for the plaintiff-respondent, that the Government was precluded from raising this objection by reason of the order passed on 19-1-1951 referred to already. If on a proper construction of Section 123 of the Evidence Act I should hold that the Secretary to the Government is an Officer at the head of the department, the order of the learned Subordinate Judge directing the Minister alone to file an affidavit would be beyond his jurisdiction and would amount to a material irregularity in the exercise thereof. I consequently intimated to the counsel for respondent that if he insisted/upon the preliminary objection, I was prepared to call for the records suo motu under Section 115, C. P. C. and revise the earlier order as beyond the jurisdiction of that court. I therefore directed the learned counsel to address arguments to support the learned Subordinate Judge's view that the Secretary to the Department is not 'an officer at the head of the department.'
8. The view of the learned Subordinate Judge that it was only the Minister that has to swear to an affidavit if a claim of privilege under Section 123 of the Evidence Act is to be upheld is derived mainly from the decisions of the Privy Council and the House of Lords referred to already. Neither of these decisions had anything to do with the interpretation of the expression of 'officer at the head of the department' used in Section 123 but with the common law claim of privilege on grounds of public policy. When the law relating to a topic has been codified into statute as in the Evidence Act the duty of the court is merely to interpret the statute and recourse to decisions in other jurisdictions laying down principles applicable there, though they might be of the highest tribunals is not very profitable.
9. Of course, if there had been legislation in those Jurisdictions using the same or similar expressions as in the Indian enactment, the guidance afforded by such decisions would indeed be valuable. As the decisions already referred to had not to deal with the interpretation or proper construction of language similar to that employed in the Evidence Act, the question in the present case has to be decided on the proper meaning of the expression 'officer at the head of the department' unaffected by the principles of policy laid down by the Privy Council and the House of Lords. Moreover, it is not as if there is no guidance furnished by the decisions in India dealing with the proper construction of the relevant provision.
In -- 'I M. Lall v. Secretary of State', AIR 1944 Lah 209 (C), a Bench of the Lahore High Court had to deal with the sufficiency of the claim to privilege under Section 123 of the Evidence Act supported by an affidavit by the Chief Secretary to the Government of Punjab and by Mr. Conran Smith, Secretary to the Government of India, Home Department, in respect of certain documents in their respective custody. An objection was raised that the affidavit by these officers was insufficient and that the Minister in the Provincial Government and the member of the Viceroy's Executive Council who, it was contended, were the only heads of departments, had to file the affidavits if the claim was to be upheld. Reliance was placed for this contention on the decisions of the Privy Council and the House of Lords already referred to. Abdul Rashid J. who delivered the Judgment of the Bench dealing with this construction stated : 'This contention, in our opinion, is without any force'. After referring to a passage 'from Taylor on Evidence where the permanent head of the department is referred to as an authority competent to claim privilege the learned Judge proceeded:
'In England also permanent heads of departments are placed on the same footing as the Ministers in respect of an affidavit relating to production of documents'
and thus overruled the objection to the privilege claimed.
10. In 'Din Bai v. Dominion of India' : AIR1951Bom72 a Bench of the Bombay High Court consisting of Chagla C. J. and Bhagwati J. upheld the claim of privilege under Section 123 of the Evidence Act based on affidavits filed by the secretaries to the Bombay Government in the Home and Revenue departments. Though the point was. not specifically raised it is clear from the Judgments that their Lordships considered the affidavits of these permanent heads of departments a sufficient compliance with the terms of Section 123 of the Evidence Act. I respectfully concur with the views expressed in these decisions.
11. The learned Subordinate Judge was, therefore, not right in considering that the Secretary to the Government in charge of the department was not an officer at the head of the department within the meaning of Section 123 of the Evidence Act and insisting on an affidavit from the Minister in charge. His order is to that extent vacated and the learned Subordinate Judge will treat the affidavit of the Secretary to the Food and Agriculture Department as sufficient compliance with his order dated 19-l-1951. I wish to make it clear that I say nothing about the other portions of the same order relating to the jurisdiction of the court to go into the question as to whether the documents in respect of which privilege is claimed are or are not documents relating to affairs of state. The correctness of the learned Judge's order in this regard has not been canvassed before me either by the learned Advocate General or by the learned Government Pleader who followed him.
12. In the light of these considerations, the revision petition is allowed, but there will be no order as to costs in this revision. It is really regrettable' that a suit of the year 1948 should be pending in 1954. I have no desire to apportion the blame for the delay which has already occurred but I would direct the learned Subordinate Judge to proceed with the trial of the suit as expeditiously as possible.