1. An application on behalf of the plaintiffs was made on summons to the Registrar for an order in the usual form under Section 129 of the Code of Civil Procedure, directing the defendant, who is described in the cause title as an infant, to give discovery by affidavit of the documents in his possession relevant to the suit, and also to produce and give inspection of such documents.
2. In accordance with the usual practice in applications for discovery, no affidavit was used in support, but it was contended that, though the party against whom discovery was sought was an infant, still, having regard to the rule newly introduced by the Supreme Court of Judicature in England (Order 31, Rule 29, Supreme Court rules) which renders orders for discovery applicable to infant plaintiffs and defendants and their next friends and guardians ad litem, the practice should be adopted in this Court of requiring infant parties to suits to give discovery by affidavit.
3. The Registrar refused the application, and he has furnished a note which gives his reasons for his decision. This note clearly states what has been the practice in this Court with regard to applications for discovery, so far as it affects infant parties or their next friends or guardians ad litem. It is shown that it has been expressly decided that a guardian ad litem is not a 'party' within the meaning of Section 129 and cannot therefore be required to file an affidavit.
4. A guardian ad litem, however, may, under certain circumstances, be made a party for the purpose of obtaining discovery from him. Waghji Thackersey v. Khatao Rowji I.L.R. 10 Bom. 167. On the other hand, no instance is known in this Court of an infant party being required to make an affidavit of discovery.
5. The application, on a reference by the Registrar, was renewed in Chambers and was adjourned into Court for argument. Counsel have now been heard, and have been referred to various English authorities on the subject, and also to a recent decision by Farran, J., in the suit of Nathmull Narsingdas v. Malharrao Holkar I.L.R. 19 Bom. 350. It is admitted that the course I am urged to adopt in this case is opposed to the long-established practice of the Court. It is clear, also, that the order which is asked for would, if made, have the effect of introducing a novel practice, based on the principle that for the purposes of Section 129 of the Code all distinctions between parties sui juris and parties under the disability of minority are to be treated as abolished.
6. In the case just referred to, an order was undoubtedly made directing an infant defendant to give discovery by affidavit, but, though the learned Judge felt at liberty under the circumstances to depart from the usual practice, it is not clear that in so doing he intended to lay down any general principle. The circumstances of the case were peculiar. The plaintiff took out a summons calling on the defendants to show cause why they should not produce for the inspection of the plaintiff all books, papers, etc., in their possession, power or control, or in the possession, power or control of any person or persons on their behalf.
7. In answer, it was objected that the defendants, being infants, could not be required to discover by affidavit documents in their possession. It was not denied that documents relevant to the matters in question in the suit were in the possession of the defendants, or of their guardian ad litem, and eventually, on the understanding that the guardian ad litem was willing to make an affidavit of discovery on behalf of the infant defendants, the Court made an order against them, not for production as applied for, but for discovery by affidavit, which was in reality to be given by the guardian ad litem. It may therefore under the circumstances almost be said that the order as made was invited.
8. But the practice, for which the sanction of the Court is now sought, seems to me objectionable mainly on three grounds.
9. In the first place, it does not seem to be contemplated by the Civil Procedure Code; in the next place, it would be inconsistent with several of the existing rules of practice in force in this Court; and, lastly, there would seem to bo no means of enforcing orders made in pursuance of such a practice.
10. Under Section 136 of the Civil Procedure Code a party failing to comply with an order made under Section 129 is, if a plaintiff, liable to have his suit dismissed, or, if a defendant, to have his defence struck out and to be placed in the same position, as if he had not appeared and answered.
11. The section, moreover, provides that any party failing to comply with an order to answer interrogatories, or for discovery, or production or inspection, which has been served personally on him, shall be deemed guilty of an offence under Section 185 of the Indian Penal Code. These penalties are obviously inapplicable to infants and persons under disability as a class, and it seems reasonable to infer that the Legislature never contemplated or intended that the discretionary powers given by Section 129 should be exercised as against parties under disability. The practice of this Court has proceeded upon this view.
12. Rule 244 of the High Court Rules, Original Side, Bel. R. & O., p. 145, provides that an infant defendant is not to be required to file a written statement. If an infant defendant is to be considered incapable of filing an answer to a claim, it would seem to be anomalous that he should be required to give discovery by affidavit of documents, or make admissions in answer to interrogatories,
13. Under Rule 272, Bel. R. & 0., p. 152, an order for discovery or production may be enforced by the arrest and committal of the disobedient party. This, again, is not a penalty which would be ordinarily applicable to an infant.
14. Moreover, Rule 309, Bel. R & O., p. 163, provides that in no case shall a suit, in which there is an infant defendant, be heard ex parts.
15. The practice now sought to be introduced would seem to be inconsistent with these rules and some others which might be cited, and it is obvious, on a consideration of these rules, as well as of the English authorities which have been referred to, that compulsory orders for discovery or the like against persons under disability must, as a general rule, be incapable of enforcement and nugatory. I have not been referred to any case in this Court, in which the present practice has been found to work hardship or injustice, and as a matter of fact for special cases of hardship special remedies can generally be devised. In my opinion the present practice cannot be effectually altered except by fresh legislation, rendering the powers of the Court under Section 129 applicable to infant parties and to their next friends and guardians ad litem. As against infant parties, however, who may or may not have attained years of discretion, the exercise of these powers would necessarily depend on the facts of each case. I must refuse this application.