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Judgment
This is an application to revise the order of the Subordinate Judge of Masulipatani in I. A. No. 1699 of 1954 directing the Petitioner herein to give inspection of the documents referred to in para. 6 of the affidavit filed by the Respondents in support of their application. Sri P. Somasundaram on behalf of the Petitioner raised two objections, namely, (i) .that the inspection ought .not to have been ordered under Order 11 Rule 18(2) Code of CPC before the Respondents filed their written statements, and (ii) that the Subordinate Judge did not address his mind to the question whether Union Respondents were entitled to inspection of these document (2) For the purpose of appreciating his contentions,- I shall set out a few relevant facts. The Petitioner-Bank is the Andhra Bank Ltd, Masulipalnain and it held a suit for recovery of Us. 1,24,044-14-0 due on a promissory note executed by the Respondents and others. In the lawyer''s notice dated 18-9-1954 which preceded the suit the bank demanded the repayment of the amounts due fewer than two heads. It was stated therein that if the two loan amounts were not paid within a week after the receipt of tins notice, the bank would enforce the mortgage created by deposit of title deeds and recover the amounts from the mortgaged properties as also personally.
No reply having been received tire Petitioner-bank filed the suit for enforcement of the promissory note dated 17-10-1951. The claim based on the mortgage has been given up in tin''s suit as conceded by Sri P. Somasundaram. The Advocate for the Respondents by his letter dated 25-11-1954 wrote to the General Secretary of the bank that he should be permitted to inspect the relevant accounts and documents at, the bank premises in order that his clients might decide after inspection "either to. defend tire smit or to submit to a decree and thus shorten, the life of the suit which in ordinary course would cover many months or years."
As the bank did not give the inspection of the documents, the Respondents filed J. A. No. 1699/54, even'' before filing the written statement. It is stated in para. 2 of the affidavit filed in support of the application that (''ho suit promissory note was a ''collateral security and was enforceable only if and when the assets of Defendant 1 company were insufficient to meet the amount; due to the bank.
It was further stated that the letters addressed by the bank to Sri K. Subbarao Naidu, the Managing Director of the company of Managing Agents of (jofendunt 1 company could not ho found and so all the copies of the letters maintained by the bank might be given inspection of. In para 6, the Respondents stated the several documents in respect of which they required inspection.
The banks opposed the application on the found that inspection ought not to be directed be are tile Defendants filed their written statement, that the object of the application was only to fish out information, that the documents were not relevant and that inspection was not necessary either for disposing of the suit fairly or for avoiding costs. The Subordinate Judge upheld the claim of the Respondents for1 inspection on the ground that their counsel is permitted to look into the accounts jar documents lying with the Plaintiff-bank, they (will not be in a position to make up their mind whether to defend the suit or not." The Plaintiff-bank hag consequently filed the civil devised Revision Petition against the order of the Suborder Budge directing inspection. V73) Order11 R. 15, Civil P. G, enacts that every party to a suit shall be entitled at any time to give notice to any other party, in whose pleadings or affidavits reference is made to any document, to produce such document for the inspection of the party giving such notice, or of his pleader. Order 11 Rule 18(1) provides that where the party served with notice under R. 15 omits to Siva such notice for inspection, the Court.
cation of the party desiring it, make au order of inspection.
The proviso to Sub-rule (1) empowers the U to refuse inspection if it is satisfied lliut tbe''i pocUon is- not necessary cither for disposing suit fairly or for saving costs. In -- ''Kama Chettiar v. It. Annamalai Chettiar AIR 1931 825 (A), the question arose whether inspect the documents entered in a list attached plaint could not be ordered before filing the$ ten statement:, under Order 11 H. II(1), Civil " Curgenven J., held that the only reasonable vt reading Order 7 R. 14, with Order11 Rule 15, was to that the expression referred to was eluvia "entered in the list" and date the that iam!3'' deemed to be part of the plaint.
Ife refused to follow the decision of the j cutter High Court in - ''Chandmull Gencshia Dhanraj Ganpatroy AIR 1920 Cal 416 (11, took a contrary view. He further held that Order 11 II. 18,(1) the Defendants were entitled t"f pect all the documents mentioned in the lrat; ed to the plaint even before filing the written I merit. A similar view was taken by the the High Court in - ''Khetsidas v. Narotumdud Bom 152 (C).
In ''Nagpur Glass Works Co. Ltd. v. Glass Works Co. Ltd. AIR 1938 Nag 33, Bose J. has expressed a slightly different vim held that in respect of the documents code in the list attached to the plaint, the prove O. IT II. IS (2) and not Rule 18 (1) applying? unnecessary in the present case to decide view is correct; but I will proceed on the that the decision of the Madras High Court is binding on this Court has correctly into '' the provisions of Order 11 Rule 15 and 18 (1).
4 Tho question which arises for deeiaasl the present case is, whether inspection nor ordered under Rule 18 (2) of documents, not n*M ed. in the pleading''s or affidavit or included list before the Defendant filed the written indent. Neither Sub-rule (1) nor such 18 lays down at what stage inspection sought. Sub-rule (1) has been interpret High Courts) of Madras and Bombay as en, the Court to direct inspection even before ; of the written statement. The obsessed, M.R. in - ''Quilter v. fleatly'', D 42 at p 48 (E), have been reed on here inspection before filing the written that the observations are as follows:
It is suggested that although the.
rule are general in is sufficient for a answer to such an application by a, say that the Defendant has not Put in I cannot conceive that this is a suffice The Defendant may say, "your case deeps on a set of documents which you may kid out incorrectly. I wish to see them. It that, I have made admissions which will out of Court. I wish to see the document whether I have made such admission, and M portant for me to see them before I put defence."
So far as the terms of Rule 18 (2) pending to Order 31, Rule 18 (2) of the rules Supreme Court, a different interpretation kam given, as pointed in the Annual Practice (Hon) at page 491, thus:
"From the earliest times the Court their faces against allowing discovery for the pose of fishing out a case; and for the I sons, a Defendant is, as a rule, not act discovery before putting in his defence."
Rule 18 (2) refers'' to inspection of in to menu, other than those referral to in the or affidavits. Lindlev T.T question in tile action and an a in for production of documents referred to itj adings."
assage extracted '' from Halsbury''s law of d by Curgonven J., in S.R.M.A.R. Ramanathan, Chettiar Vs. The Hon''ble Rajah Sir Annamalai Chettiar and Others, p. 827 is also to the same effect. It is there in that: a general rule discovery cannot be obtain-after defence has been delivered, since it is till then that it is known what are tile mat-dispute."
Bom 152 (C)'', Davar J. stated the practice Bombay High Court in the following terms: it has heretofore been the practice not to inspection of documents other than those rc-to in the plaint Or relied on in die list ante the plaint till'' after the written statement I will follow the practice and must decline the inspection! that is sought in this surn-I must not, however, be taken as saying that to be inflexible rule in all cases, for I can e of many cases! where it would be jmpera-order the Plaintiffs t.o produce and give ins-to the Defendant before he has filed his statement of a document or documents they may not have mentioned in their plaint crated in the list of documents annexed ! am inclined to follow lie judgment of J., and hold that generally Inspection ough''j be ordered under R. 18 (2) before; filing tin.'' statement. A similar view was taken by the I High Court in -- ''Copal Ruxrai v. Svod nood AIR 1944 Fat 177 (K), when de-it prayed the Court to direct the plaintiff discovery on oath of documents in his pos-before filing the written statement. T.lie Bose J... in AIR 1938 Nag 239 (D)'', is also At p. 2-1.1 he observed as follows: f course those roles do not stale the exact when this application must be made and "r the Court, to decide in each case whether ''on should be granted before or after the f the written statement. In some cases it desirable to allow inspection before the statement is filed and in others after, and others, not at all."
I am inclined to take the view that there special or peculiar circumstance to depart the ordinary rule and direct inspection before Respondents file their written statements. The of the Allahabad High Court relied on by ordinate Judge in - Gobardhan Das Vs. Mt. Jai Devi has no application facts of this case. The application for ins-was not made in that case prior to the filing written statement. What was decided there -that the Court should decide before! Directing on, whether the documents are relevant At the difference between sub-rules (1) and (2) " is brought out in the following terms :
difference between the two cases is that case of a document not mentioned in the written statement the affidavit, an affi- to be1 filed by t3ie applicant to satisfy the t the document is relevant to the case.
''se of a document mentioned in the plaint statement pr affidavit of discovery, the ''is admitted; while in the other case, the Lies to be proved."
p tills case I am also satisfied that the Judge has not applied his mind and ''whether all the documents mentioned in the affidavit filed by the Defendants its are relevant and should be given in at this stage. So far as tile two documents included In the list attached to the plaint the Defendants are certainly enticed to inspection.
As the Plaintiff is not suing to enforce the equitable mortgage and has given up his rights there under, I am unable to gather how the documents bearing on the equitable mortgage mentioned in Para 6, viz., (a) the deed of equitable mortgage; (b) the correspondence that passed between the Plaintiff Defendant 1 and the Registrar of Joint Stock Companies Madras in relation to the Memorandum of Equitable mortgage; and (c) the correspondence that led to execution of the excitable mortgage deed on 5-10-1953 and the said deed are relevant.
I am also not satisfied how the documents prior to and leading to the execution of the pro-note, viz., the copies of the account in the books of the company in respect''of the two loan transactions and letters in connection therewith authorising the appropriation, if any and correspondence that passed between the bank and Defendant 1 from January to October 1951 which led to the granting of loans and letters giving Defendant 1 company open loan facility up to two lakhs are relevant.
If after the filing of the written statement an application under R. 18 (2) is filed by the Defendants and the Court is satisfied that the documents are relevant for deciding die points in actual controversy or dispute between the parties, it may consider the question as to whether inspection .should be directed or not.
As already stated, the Subordinate Judge has not decided, or given any reasons for holding that all (lie documents are relevant at this stage, namely, before the Wilson statement is filed by folic Respondents and before the actual points in dispute between the parties are put in issue.. So Jar- as the ground on which the learned Judge directed inspection, namely, that if their counsel is permitted to look into the accounts and documents lying with, the Plaintiff, they will be in a position to make up their mind whether to defend the suit or not, I am inclined to take the view that it is not a proper approach to the case.
The observations of Jesse.1, M.R. in (1883) 23 Ch D 42 (E), do not apply to documents other than those referred to in the pleadings or tlie affidavit. The observations that apply to a case of this description are forcibly stated by Lihdley L. T. in re, ''H. W. Strachan (.1895) 1 Ch D 439 445 (H)'', in the following terms:
In England it is considered contrary to the interests of justice to compel a litigant to disclose to his opponent before trial the evidence to be adduced against him (see - ''Renbow v. Low (1880) 16 Ch D 93 (I) ). It is considered that so to do would give undue advantage for cross-examination and lead to endless side issues, and would enable witnesses to be tampered with, and give unfair advantage to the unscrupulous.
It is very true that an honest and fair dealing litigant, on seeing how strong a case his opponent had, might at once withdraw from further litigation. But our rules of evidence and of discovery are not based upon theory that it is advantageous to let each side know what the other can prove, but rather the reverse. Moreover, Courts act upon this view when asked to allow inspection of documents under their, control."
Such being tlie view of what justice requires, I set aside the order passed by the Subordinate Judge and allow the Civil Revision Petition with, costs throughout.