Authored By : John Freeman Norris, Loftus Richard Tottenham

John Freeman Norris, J.

1. On 21st May, upon the application of Mr. Woodroffe, wegranted a rule calling upon the plaintiff to show cause why the order of 13thMay should not be see aside. The rule was argued on 17th ultimo, Mr. Evansshowing cause and Mr. Advocate-General supporting it.

2. Any difficulty that exists in disposing of this rulearises from the fact that neither the Subordinate Judge nor the pleaders of therespective parties seem to have understood the procedure regarding inspection.

3. Chapter X of the Civil Procedure Code contains theprovisions with regard to "discovery, and the admission, inspection,production, impounding and return of documents."

4. Section 121 of the Civil Procedure Code authorizes aplaintiff, at any time by leave of the Court, to deliver through the Courtinterrogatories in writing for the examination of the defendant, and authorizesa defendant, at any time after his written statement has been tendered,received, and placed on the record, to deliver through the Courtinterrogatories in writing for the examination of the plaintiff. Section 122prescribes the method of service of interrogatories. Section 125 authorizes anyparty interrogated "to refuse to answer any interrogatory on the groundthat it is irrelevant, or is not put bona fide for the purposes of the suit, orthat the matter enquired after is not sufficiently material at that stage ofthe suit or on any other like ground." under Section 127, "if anyperson interrogated omits or refuses to answer or answers insufficiently anyinterrogatory, the party interrogating may apply to the Court for an orderrequiring him to answer or to answer further, as the case may be." The penaltyupon a plaintiff for not obeying an order served upon him "to answer or toanswer further, as the case may be," is that be is liable to have his suitdismissed for want of prosecution and to be prosecuted for an offence underSection 188 of the Penal Code ; the penalty upon a defendant for not obeying anorder, served upon him to "to answer or to answer further, as the case maybe," is that he is liable to have his defence struck out and to be placedin the same position as if he had not appeared and answered, and to beprosecuted for an offence under Sections 188 of the Penal Code. An order of theCourt is necessary before the plaintiffs suit can be dismissed, or thedefendants defence struck out.

5. Up to this point the chapter has dealt with the firstbranch of discovery, that by interrogatories. It then proceeds to deal withdiscovery as it affects documents.

6. The question of discovery as it affects documentsobviously embraces two heads : first, discovery simply, that is to say, thepower of compelling your opponent to disclose what documents he has in hispossession ; secondly, the power of compelling their production. The subject ofdiscovery simply is dealt with by Sections 129, which says that "the Courtmay, at any time during the pendency therein of any suit, order any party tothe suit to declare by affidavit all the documents which are or have been inhis possession or power relating to any matter in question in the suit, and anyparty to the suit may at any time before the first hearing apply to the Courtfor a like order." If the party served with the order objects to produceany of the documents disclosed in his affidavit, he must specify them, togetherwith the grounds of his objection. The penalties for non-compliance with anorder under Section 129 are the same as those provided by Section 136 fornon-compliance with an order under Sections 127 to answer interrogatories.

7. Section 130, which says that "the Court may at anytime during the pendency therein of any suit order the production by any partythereto of such of the documents in his possession or power relating to anymatter in question in such suit as the Court thinks right; and the Court maydeal with such documents when produced in such manner as appears just,"deals as well with the power of compelling your opponent to disclose whatdocuments he has in his possession, as with the power of compelling theirproduction. The penalty for non-compliance with an order under Sections 130 isthe same as that provided by Section 13& for non-compliance with an orderunder Section 127 or Section 129. The Chapter then proceeds to deal with thevoluntary inspection of documents. Section 131 enacts "that any party to asuit may at any time before or at the hearing thereof give notice through the Courtto any other party to produce any specified document for the inspection of theparty giving such notice, or of his pleader, and to permit such party orpleader to take copies thereof."

8. Section 132 provides that "the party to whom suchnotice is given shall, within ten days from the receipt thereof, deliverthrough the Court to the party giving the same a notice stating a time, withinthree days from such delivery, at which the documents, or such of them as hedoes not object to produce, may be inspected at his pleaders office, or someother convenient place, and stating which, if any, of the documents he objectsto produce, and on what grounds." The notice to be given through the Courtunder Section 131 should require the party from whom inspection is sought todeliver the notice under Section 132 within ten days from the receipt of thenotice, and under Section 131 the time cannot be curtailed. The penalty for notdelivering through the Court the notice required by Section 132 is that theparty not so giving it shall not afterwards "be at liberty to put in anysuch document in evidence unless he satisfies the Court that such documentrelates only to his own title, or that he had some other and sufficientcause."

9. The chapter next proceeds to deal with inspection byorder of the Court.

10. Section 133 enacts that, "if any party served withnotice under Section 131 omits to give notice under Section 132 of the time ofinspection, or objects to give inspection, or names an inconvenient place forinspection, the party desiring it may apply to the Court for an order ofinspection."

11. Section 134 provides that, "except in the case ofdocuments referred to in the plaint, written statement or affidavit of theparty against whom the application is made or disclosed in his affidavit ofdocuments, such application shall be founded upon an affidavit showing (a) ofwhat documents inspection is sought, (b) that the party applying is entitled toinspect them, and (c) that they are in the possession or power of the partyagainst whom the application is made." Section 135 provides that, "ifthe party from whom discovery of any kind or inspection is sought objects tothe same or any part thereof, and if the Court is satisfied that the right tosuch discovery or inspection depends on the determination of any issue orquestion in dispute in the suit, or that for any other reason it is desirablethat any such issue or question should be determined before deciding upon theright to the discovery or inspection, the Court may order that the issue orquestion be determined first and reserve the question as to the discovery orinspection." That the provisions of this section were not intended to comeinto operation until after an application has been made under Section 133 isplain from a consideration of the fact that Section 136 enacts the samepenalties for non-compliance with an order under Section 133 as fornon-compliance with orders Under Sections 127, 129 and 130, and no order couldbe made under Section 133 until the questions raised under Section 135 had beendetermined. If this view of the Chapter be correct, it follows that almost allthe proceedings in this case are irregular.

12. In the first place the plaintiffs application of the8th March was premature, for the notice under Sections 131 was served on thedefendant on 10th February, three days after all proceedings in the suit werestayed. The application for transfer was refused on 3rd March, and it was nottill then that the ten days time within which to deliver the notice underSection 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 defendants application of 16thMarch 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 132and wait for the plaintiff to apply for an order under Section 133, supportedby an affidavit under Section 134.

14. In the third place the defendants application of 25thMarch was premature, for there had been no proper application for an orderunder Section 133.

15. In the fourth place the plaintiffs application of 25thMarch was irregular, for no order for inspection had been made on the defendantunder 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 withoutjurisdiction.

17. The present position of the parties is this: If thedefendant does not wish to give inspection of the books she need not do so atpresent, and the only penalty she will be subject to is that she will not beallowed, at the trial, to put in the books on her own behalf unless shesatisfies the Court that they relate only to her own title, or that she hadsome other and sufficient cause for not complying with the notice served uponher on 10th February. If the plaintiff still wants to have inspection of thebooks be may apply for an order for inspection under Section 133 founded uponan affidavit under Section 134. The defendant may then claim the benefit of theprovisions of Section 135. If she does, the Subordinate Judge will then have"to satisfy himself whether the right to such discovery or inspection asthe plaintiff seeks depends upon the determination of any issue or question indispute in the suit, or that for any other reason it is desirable that any suchissue or question should be determined before deciding upon the right toinspection ;" if he is so satisfied, he ought to order the issue orissues, question or questions, to be determined first and reserve the questionas to inspection. In this view of the case it is unnecessary and undesirable todiscuss the cases cited to us bearing upon the question of plaintiffs right toinspection under the circumstances of this case.

18. Only one more point remains to be considered. Mr. Evanscontended that, as the order of 13th May was an interlocutory order, and therewas an appeal from the final decree, we could not interfere under Section 622of the Civil Procedure Code. In support of the contention the learned Counselreferred to the cases cited at page 573 of the second edition of Mr. JusticeOKinealys Code of Civil Procedure in the learned authors notes to Section622 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 thecases cited by OKinealy, J,, the facts were these. The plaintiff brought asuit, alleging divers breaches of trust, asking for an account and for theappointment of a new trustee. The value of the trust property was five lacs ofrupees. The suit was instituted on a 10-rupee Court-fee stamp as being theproper stamp under Article 17, Schedule II of the Court Fees Act. The Court inwhich the suit was instituted was of opinion that the Court-fee ought to havebeen calculated on the full value of the trust property, and made an order thatthe deficiency, Rs. 2,990, should be made good within a certain time. Beforethe time expired the plaintiff applied for a rule to show cause why the ordershould 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 makinggood the deficiency, the Court of first instance must have proceeded to dealwith the case under Section 54 of the Civil Procedure Code, and that the orderrejecting the plaint which would have been made in due course under thatsection, on the ground that the relief was not properly valued, would have beenan appealable order ; and this being so, it was further contended that theapplicant ought not to be allowed to come in under Section 622 of the CivilProcedure Code, when he could by law have an appeal in the case upon the verypoint he sought to raise under the rule. McDonell and Field, JJ., yielded tothis argument; and holding that the case was not, with reference to the languageof Section 622 of the Civil Procedure Code "a case in which no appeal liesto the High Court, " and that the matter under dispute ought to bedetermined on appeal, discharged the rule.

19. In Harscram Singh v. Muhammad Raza 4 A. 91 another ofthe cases cited by OKinealy, J., the plaintiff applied by his pleader to aDistrict Judge for leave to appeal as a pauper against a decree of aSubordinate Judge ; the District Judge refused the application on the groundthat it ought to have been made personally and not by a pleader. The plaintiffapplied to the High Court to revise the District Judges order under Section662 of the Civil Procedure Code. Straight, J., in giving the judgment of theCourt said : "We are clearly of opinion that this application was inadmissibleand cannot be entertained. Section 622 of the Civil Procedure Code does not, inour judgment, apply to a proceeding of so purely an interlocutory character asthat mentioned in Section 592."

20. In Chattar Singh v. Lekhraj Singh 5 A. 293 another ofthe cases cited by OKinealy, J., the facts were these : "There had been areference to arbitration under the provisions contained in Ch. XXXVII of theCivil Procedure Code; the arbitrator had made his award in favour of thedefendant ; the award was set aside upon the application of the plaintiff onthe ground of the arbitrators misconduct. The defendant impugned the proprietyof the decision of the Court of first instance that the arbitrator had beenguilty of misconduct," and applied to the High Court to revise the orderunder Section 662 of the Civil Procedure Code. Oldfield, J., in givingjudgment, said at page 294: "We are of opinion that we have no power ofrevision under Section 622. The contention that the proceeding for arbitrationis 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. Theproceeding 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 fromthe final decree. It was not the intention to allow of revision ofinterlocutory 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 revisionby appeal from the final decree in the suit, and even if Section 622 allowed ofit, it would be highly inexpedient for us to interfere at this stage of thecase."

21. In Farid Ahmad v. Dulari Bibi 6 A. 233 the last of thecases cited by OKinealy, J., a District Judge had transferred to his own filea suit pending in the Court of an Additional Subordinate Judge without noticeto the defendants and when the trial of the suit was nearly completed. Thedefendants moved the High Court under Section 622 of the Civil Procedure Codeto revise the order of transfer. The application was refused, the Court holdingthat the order of transfer was not one which they could revise under Sections622 of the Civil Procedure Code, as it was an order made in a suit, and therewas an appeal in the case from the final decree.

22. These cases no doubt decide in so many words thatSection 622 of the Civil Procedure Code does not apply to interlocutory orderswhen there is an appeal from the final decree. I confess that, after a carefulconsideration of the judgments, I am unable to concur in the interpretationplaced 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 toinclude an interlocutory order, and that the words "record of anycase" include so much of the proceedings in any suit as relate to theinterlocutory order. It is easy to imagine cases where irremediable injury maybe done to a party by an interlocutory order made without jurisdiction, andunless the words of the section are clear beyond all doubt to the contrary, Icannot believe that the Legislature intended such injury to remain without aremedy.

23. The other cases cited by Mr. Evans do not, as far I cansee, throw any light upon the subject. I am of opinion that the rule should bemade absolute with costs.

Loftus Richard Tottenham, J.

24. Under the circumstances I concur in making this ruleabsolute, but I think that, even if we entertained doubt as to the power ofthis Court to interfere under Section 622 of the Civil Procedure Code, it wouldbe our duty to express such an opinion upon the manifest irregularities set outin Mr. Justice Norriss judgment as would induce the Court below of its ownaccord to desist from enforcing the order against which the rule has beenobtained.

25. The rule will be made absolute with costs.

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