1. On 21st May, upon the application of Mr. Woodroffe, we granted a rule calling upon the plaintiff to show cause why the order of 13th May should not be see aside. The rule was argued on 17th ultimo, Mr. Evans showing cause and Mr. Advocate-General supporting it.
2. Any difficulty that exists in disposing of this rule arises from the fact that neither the Subordinate Judge nor the pleaders of the respective parties seem to have understood the procedure regarding inspection.
3. Chapter X of the Civil Procedure Code contains the provisions with regard to 'discovery, and the admission, inspection, production, impounding and return of documents.'
4. Section 121 of the Civil Procedure Code authorizes a plaintiff, at any time by leave of the Court, to deliver through the Court interrogatories in writing for the examination of the defendant, and authorizes a defendant, at any time after his written statement has been tendered, received, and placed on the record, to deliver through the Court interrogatories in writing for the examination of the plaintiff. Section 122 prescribes the method of service of interrogatories. Section 125 authorizes any party interrogated 'to refuse to answer any interrogatory on the ground that it is irrelevant, or is not put bona fide for the purposes of the suit, or that the matter enquired after is not sufficiently material at that stage of the suit or on any other like ground.' under Section 127, 'if any person interrogated omits or refuses to answer or answers insufficiently any interrogatory, the party interrogating may apply to the Court for an order requiring him to answer or to answer further, as the case may be.' The penalty upon a plaintiff for not obeying an order served upon him 'to answer or to answer further, as the case may be,' is that be is liable to have his suit dismissed for want of prosecution and to be prosecuted for an offence under Section 188 of the Penal Code ; the penalty upon a defendant for not obeying an order, served upon him to 'to answer or to answer further, as the case may be,' is that he is liable to have bis defence struck out and to be placed in the same position as if he had not appeared and answered, and to be prosecuted for an offence under Sections 188 of the Penal Code. An order of the Court is necessary before the plaintiff's suit can be dismissed, or the defendant's defence struck out.
5. Up to this point the chapter has dealt with the first branch of discovery, that by interrogatories. It then proceeds to deal with discovery as it affects documents.
6. The question of discovery as it affects documents obviously embraces two heads : first, discovery simply, that is to say, the power of compelling your opponent to disclose what documents he has in his possession ; secondly, the power of compelling their production. The subject of discovery simply is dealt with by Sections 129, which says that 'the Court may, at any time during the pendency therein of any suit, order any party to the suit to declare by affidavit all the documents which are or have been in his possession or power relating to any matter in question in the suit, and any party to the suit may at any time before the first hearing apply to the Court for a like order.' If the party served with the order objects to produce any of the documents disclosed in his affidavit, he must specify them, together with the grounds of his objection. The penalties for non-compliance with an order under Section 129 are the same as those provided by Section 136 for non-compliance with an order under Sections 127 to answer interrogatories.
7. Section 130, which says that 'the Court may at any time during the pendency therein of any suit order the production by any party thereto of such of the documents in his possession or power relating to any matter in question in such suit as the Court thinks right; and the Court may deal with such documents when produced in such manner as appears just,' deals as well with the power of compelling your opponent to disclose what documents he has in his possession, as with the power of compelling their production. The penalty for non-compliance with an order under Sections 130 is the same as that provided by Section 13& for non-compliance with an order under Section 127 or Section 129. The Chapter then proceeds to deal with the voluntary inspection of documents. Section 131 enacts 'that any party to a suit may at any time before or at the hearing thereof give notice through the Court to any other party to produce any specified document for the inspection of the party giving such notice, or of his pleader, and to permit such party or pleader to take copies thereof.'
8. Section 132 provides that 'the party to whom such notice is given shall, within ten days from the receipt thereof, deliver through the Court to the party giving the same a notice stating a time, within three days from such delivery, at which the documents, or such of them as he does not object to produce, may be inspected at his pleader's office, or some other convenient place, and stating which, if any, of the documents he objects to produce, and on what grounds.' The notice to be given through the Court under Section 131 should require the party from whom inspection is sought to deliver the notice under Section 132 within ten days from the receipt of the notice, and under Section 131 the time cannot be curtailed. The penalty for not delivering through the Court the notice required by Section 132 is that the party not so giving it shall not afterwards 'be at liberty to put in any such document in evidence unless he satisfies the Court that such document relates only to his own title, or that he had some other and sufficient cause.'
9. The chapter next proceeds to deal with inspection by order of the Court.
10. Section 133 enacts that, 'if any party served with notice under Section 131 omits to give notice under Section 132 of the time of inspection, or objects to give inspection, or names an inconvenient place for inspection, the party desiring it may apply to the Court for an order of inspection.'
11. Section 134 provides that, 'except in the case of documents referred to in the plaint, written statement or affidavit of the party against whom the application is made or disclosed in his affidavit of documents, such application shall be founded upon an affidavit showing (a) of what documents inspection is sought, (b) that the party applying is entitled to inspect them, and (c) that they are in the possession or power of the party against whom the application is made.' Section 135 provides that, 'if the party from whom discovery of any kind or inspection is sought objects to the same or any part thereof, and if the Court is satisfied that the right to such discovery or inspection 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 such issue or question should be determined before deciding upon the right to the discovery or inspection, the Court may order that the issue or question be determined first and reserve the question as to the discovery or inspection.' That the provisions of this section were not intended to come into operation until after an application has been made under Section 133 is plain from a consideration of the fact that Section 136 enacts the same penalties for non-compliance with an order under Section 133 as for non-compliance with orders Under Sections 127, 129 and 130, and no order could be made under Section 133 until the questions raised under Section 135 had been determined. If this view of the Chapter be correct, it follows that almost all the proceedings in this case are irregular.
12. In the first place the plaintiff's application of the 8th March was premature, for the notice under Sections 131 was served on the defendant on 10th February, three days after all proceedings in the suit were stayed. The application for transfer was refused on 3rd March, and it was not till then that the ten days' time within which to deliver the notice under Section 132 began to run against the defendant. The application was also bad, for it was not supported by an affidavit as required by Section 134.
13. In the second place the defendant's application of 16th March was unnecessary. If she did not want to produce the books for inspection, all she had to do was to refrain from delivering the notice under Section 132 and wait for the plaintiff to apply for an order under Section 133, supported by an affidavit under Section 134.
14. In the third place the defendant's application of 25th March was premature, for there had been no proper application for an order under Section 133.
15. In the fourth place the plaintiff's application of 25th March was irregular, for no order for inspection had been made on the defendant under Section 133.
16. In the fifth place the order of the Judge of 13th May, purporting to be made under Section 136, is bad, being made without jurisdiction.
17. The present position of the parties is this: If the defendant does not wish to give inspection of the books she need not do so at present, and the only penalty she will be subject to is that she will not be allowed, at the trial, to put in the books on her own behalf unless she satisfies the Court that they relate only to her own title, or that she had some other and sufficient cause for not complying with the notice served upon her on 10th February. If the plaintiff still wants to have inspection of the books be may apply for an order for inspection under Section 133 founded upon an affidavit under Section 134. The defendant may then claim the benefit of the provisions of Section 135. If she does, the Subordinate Judge will then have 'to satisfy himself whether the right to such discovery or inspection as the plaintiff seeks depends upon the determination of any issue or question in dispute in the suit, or that for any other reason it is desirable that any such issue or question should be determined before deciding upon the right to inspection ;' if he is so satisfied, he ought to order the issue or issues, question or questions, to be determined first and reserve the question as to inspection. In this view of the case it is unnecessary and undesirable to discuss the cases cited to us bearing upon the question of plaintiff's right to inspection under the circumstances of this case.
18. Only one more point remains to be considered. Mr. Evans contended that, as the order of 13th May was an interlocutory order, and there was an appeal from the final decree, we could not interfere under Section 622 of the Civil Procedure Code. In support of the contention the learned Counsel referred to the cases cited at page 573 of the second edition of Mr. Justice O'Kinealy's Code of Civil Procedure in the learned author's notes to Section 622 of the Civil Procedure Code to Amir Hassan Khan v. Sheo Baksh Singh 11 I.A. 237 : 11 C. 6, Sew Bux Bogla v. Shib Chunder Sen 13 C. 225, and Badami Kuar v. Dinu Rai 8 A. 111. In the case of Omrao Mirza v. Jones 12 C.L.R. 148, one of the cases cited by O'Kinealy, J,, the facts were these. The plaintiff brought a suit, alleging divers breaches of trust, asking for an account and for the appointment of a new trustee. The value of the trust property was five lacs of rupees. The suit was instituted on a 10-rupee Court-fee stamp as being the proper stamp under Article 17, Schedule II of the Court Fees Act. The Court in which the suit was instituted was of opinion that the Court-fee ought to have been calculated on the full value of the trust property, and made an order that the deficiency, Rs. 2,990, should be made good within a certain time. Before the time expired the plaintiff applied for a rule to show cause why the order should not be set aside. In showing cause against the rule it was argued that, if the plaintiff had waited until the expiration of the time allowed for making good the deficiency, the Court of first instance must have proceeded to deal with the case under Section 54 of the Civil Procedure Code, and that the order rejecting the plaint which would have been made in due course under that section, on the ground that the relief was not properly valued, would have been an appealable order ; and this being so, it was further contended that the applicant ought not to be allowed to come in under Section 622 of the Civil Procedure Code, when he could by law have an appeal in the case upon the very point he sought to raise under the rule. McDonell and Field, JJ., yielded to this argument; and holding that the case was not, with reference to the language of Section 622 of the Civil Procedure Code 'a case in which no appeal lies to the High Court, ' and that the matter under dispute ought to be determined on appeal, discharged the rule.
19. In Harscram Singh v. Muhammad Raza 4 A. 91, another of the cases cited by O'Kinealy, J., the plaintiff applied by his pleader to a District Judge for leave to appeal as a pauper against a decree of a Subordinate Judge ; the District Judge refused the application on the ground that it ought to have been made personally and not by a pleader. The plaintiff applied to the High Court to revise the District Judge's order under Section 662 of the Civil Procedure Code. Straight, J., in giving the judgment of the Court said : 'We are clearly of opinion that this application was inadmissible and cannot be entertained. Section 622 of the Civil Procedure Code does not, in our judgment, apply to a proceeding of so purely an interlocutory character as that mentioned in Section 592.'
20. In Chattar Singh v. Lekhraj Singh 5 A. 293, another of the cases cited by O'Kinealy, J., the facts were these : 'There had been a reference to arbitration under the provisions contained in Ch. XXXVII of the Civil Procedure Code; the arbitrator had made his award in favour of the defendant ; the award was set aside upon the application of the plaintiff on the ground of the arbitrator's misconduct. The defendant impugned the propriety of the decision of the Court of first instance that the arbitrator bad been guilty of misconduct,' and applied to the High Court to revise the order under Section 662 of the Civil Procedure Code. Oldfield, J., in giving judgment, said at page 294: 'We are of opinion that we have no power of revision under Section 622. The contention that the proceeding for arbitration is a decided case in which no appeal lies within the meaning of the section, and therefore open to revision under Section 622, is not tenable. The proceeding is of an interlocutory character only, made in the course of a suit; it is part of a case which is still undecided, and in which an appeal lies from the final decree. It was not the intention to allow of revision of interlocutory proceedings, in the course of a suit, which do not determine it. The order, which is the subject of this application, will be open to revision by appeal from the final decree in the suit, and even if Section 622 allowed of it, it would be highly inexpedient for us to interfere at this stage of the case.'
21. In Farid Ahmad v. Dulari Bibi 6 A. 233, the last of the cases cited by O'Kinealy, J., a District Judge had transferred to his own file a suit pending in the Court of an Additional Subordinate Judge without notice to the defendants and when the trial of the suit was nearly completed. The defendants moved the High Court under Section 622 of the Civil Procedure Code to revise the order of transfer. The application was refused, the Court holding that the order of transfer was not one which they could revise under Sections 622 of the Civil Procedure Code, as it was an order made in a suit, and there was an appeal in the case from the final decree.
22. These cases no doubt decide in so many words that Section 622 of the Civil Procedure Code does not apply to interlocutory orders when there is an appeal from the final decree. I confess that, after a careful consideration of the judgments, I am unable to concur in the interpretation placed on Section 622 of the Civil Procedure Code. I think that the word 'case' in Section 622 of the Civil Procedure Code is wide enough to include an interlocutory order, and that the words 'record of any case' include so much of the proceedings in any suit as relate to the interlocutory order. It is easy to imagine cases where irremediable injury may be done to a party by an interlocutory order made without jurisdiction, and unless the words of the section are clear beyond all doubt to the contrary, I cannot believe that the Legislature intended such injury to remain without a remedy.
23. The other cases cited by Mr. Evans do not, as far I can see, throw any light upon the subject. I am of opinion that the rule should be made absolute with costs.
24. Under the circumstances I concur in making this rule absolute, but I think that, even if we entertained doubt as to the power of this Court to interfere under Section 622 of the Civil Procedure Code, it would be our duty to express such an opinion upon the manifest irregularities set out in Mr. Justice Norris's judgment as would induce the Court below of its own accord to desist from enforcing the order against which the rule has been obtained.
25. The rule will be made absolute with costs.