Braja Behari Sen vs Arun Coomar Bose

Das, J.—This is an appeal by Defendant No. 1 and is directed against an order of Mr. P.C. Roy Choudhury, learned subordinate judge, 3rd Additional Court, Alipore, district 24-Pargands, dated July 3, 1952.

The facts which have given rise to this appeal are as follows:

The Plaintiff Respondent made an application for the grant of a probate to the will and testament of one Bimal Behary Sen, deceased. The proceedings having become contentious, they were registered as a suit being Suit No. 22 of 1951 by an order of the Court, dated August 14, 1950. Defendant No. 1 who is the Appellant in this Court filed a written statement on April 6, 1951. On June 11, 1951, the Plaintiff filed certain documents as per list with a petition for keeping the same in safe custody. The court thereupon directed the documents to be kept in safe custody with the nazir of the court. From the note made in the margin it appears that the documents were received in a sealed box. The endorsement is dated June 12, 1951. Nothing further appears to have been done by Defendant No. 1. It appears from the order, dated January 4, 1952, that Defendant No. 1 did not file any documents nor did he taken any steps under Orders XI, XII and XIII of the Code of Civil Procedure. An application made by him for further time to file documents or take steps was rejected as frivolous. The suit was adjourned to March 6, 1952, for peremptory hearing. This order was made by Mr. B.C. Nandi, learned subordinate judge then in charge of the court. It appears from the Order sheet that the peremptory date for hearing was shifted from time to time and it was finally shifted to June 18, 1952. On May 21, 1952, Defendant No. 1 prayed for permission to inspect the documents filed by the Plaintiff. The successor, learned subordinate judge Mr. P.C. Roy Choudhury, thereupon, after hearing the learned pleaders, made an order to the following effect: "Inspection of the documents to be made "in the presence of the lawyers of the parties and the sheristadar "of the court." On June 18, 1952, both parties filed hajiras. The court was, however, engaged in a Sessions case and the suit was adjourned to July 14, 1952, for peremptory hearing, On July 3, 1952, the Appellant filed an unverified petition under Order XI, Rule 21 of the Code of Civil Procedure. The allegations made in the petition may be summarised as follows: That on June 13, 1952, Mr. R. M. Chatterji, learned pleader for the Appellant, served on Mr. B.C. Rakshit, pleader for the Plaintiff Respondent, a notice for permitting inspection on June 16, 1952. Mr. Rakshit replied to say that his client lived in Rishra and the notice was much too short. Thereafter on June 25. 1952, another letter was addressed by Mr. Chatterji stating that he was ready for inspecting the record and enquiring when it would suit Mr. Rakshit to have inspection of the documents. Mr. Rakshit replied to say that the date was fixed provisionally and that he could not contact his client in the meantime. Later on, it is the allegation of the Appellant that the Plaintiff''s pleader (Mr. Rakshit) assured that inspection would be held on June 28, 1952. On that date Mr. Chatterji wrote to Mr. Rakshit stating that Mr. Chatterji and Mr. Ghose, a learned advocate of this Court, were present in the record room. The letter also mentioned that Mr. Rakshit was present with his client but did not allow inspection. To this letter a reply was given by Mr. Rakshit to the following effect:

As you insist on the advocate inspecting the documents, no inspection can be allowed in view of the relevant Orders of the CPC and the rules of the High Court, which do not admit of such inspection.

The Appellant accordingly prayed that the result of the action on the part of the Plaintiff had caused prejudice and that the Plaintiff was resorting to delaying tactics. Defendant No. 1 (Appellant) prayed for dismissal of the suit for want of prosecution.

On the same day the learned subordinate judge was pleased to dismiss the application on a two-fold ground, namely, (1) that the Defendant had no absolute right to inspect the documents in question; (2) that the inspection should not be illegally conducted. The court refused to make an order in terms of Order XI, Rule 21 of the Code of Civil Procedure.

Defendant No. 1 has appealed to this Court. Mr. Chakraborty, learned advocate appearing in support of the appeal, has contested the propriety of the order made by the learned subordinate judge. In the first place, Mr. Chakraborty has contended that Defendant No. 1 (the Appellant) had a right of inspecting documents under the provisions of Order XI, Rule 15 of the CPC hereinafter to be called the Code.

The right of a party to inspect documents is provided for in Section 30 of the Code. The relevant portion of the section states that-

subject to such conditions and limitations as may be prescribed the Court may at any time (a) make such orders as may be necessary or reasonable in all matters relating to inspection of documents or other material objects producible as evidence

The word "prescribed" is denned in Section 2(16) of the Code to mean "prescribed by the rules". The relevant rules are to be found in Order XI, Rules 15-18. These rules lay down the ambit of the power of a court to direct inspection of documents. Order XI, Rule 15 refers to inspection of documents "referred to in "pleadings or affidavit". The word "pleading" is defined in Order XI, Rule 2, to mean a plaint or a written statement. Order XI, Rule 13 refers to an affidavit of documents. Order XI, Rule 15, therefore, contemplates inspection of documents which are referred to in the plaint or in the written statement in answers to particulars, or in the affidavit of documents or exhibits which are mentioned in affidavits copy whereof has been served and filed in Court.

On the question as to what is meant by the expression "referred to" occurring in Order XI, Rule 15 of the Code of Civil Procedure, there has been a divergence of judicial opinion. Before I refer to these cases, it is necessary to advert to certain other provisions of the Code. Order VI, Rule 2 states that the pleadings must state material facts and not the evidence in support thereof. Order VI, Rule 9 further states that the pleadings should state the effect of the documents which are material for the purposes of the pleadings. Order VI, Rule 9, therefore, implies that in the pleadings the party is required to state merely the effect of a document and not to recite the whole of it. Beading Order VI, Rule 2 and Order VI, Rule 9 together, the conclusion, in my opinion, is that the expression "referred to" in Order XI, Rule 15 means "documents which are made part of the case made in the "plaint or in the written statement". This includes the documents on which the Plaintiff sues as also the documents, the effect whereof is stated in the pleadings in question. The documents which are sued upon or the effect whereof is merely mentioned in the pleadings must be distinguished from other documents on which a party relies merely as evidence in support of his case. In other words, the documents envisaged in Order XI, Rule 15, do not refer to such other documents which are merely produced by a party, as evidence in support of his case, that is, documents which are filed in a list under the provisions of Order VII, Rule 14(2) of the Code. That this is the proper view is supported by the fact that Order VII, Rule 14(2) refers to documents which are not merely in the possession or power of the party filing the same but also documents which are not in the possession or power of such a party. My conclusion, therefore, is that the documents of which inspection can be had under Order XI, Rule 15, do not include documents which are merely mentioned in the list filed under the provisions of Order VII, Rule 14(2) of the Code. The view taken by me is supported by a decision of Greaves J. in the case of Chandmull Ganeshmull v. Dhanraj Ganapatroy (1919) 24 C.W.N. 302. A similar view was taken by Vivian Bose J. in the case of Nagpur Glass Works v. Onama Glass Works [1938] AIR Nag. 239. The view which I have taken is not inconsistent with the view taken in Quilter v. Heatley (1883) 23 Ch. D. 42 which turned on a construction of Order XXXI, Rule 14 of the Rules of the Supreme Court which corresponds to Order XI, Rule 15 of the Code. In that case the documents in question of which inspection was sought for were those which were referred to in the pleadings.

The view taken by me is, however, opposed to the view taken in the case of Ramdoyal Saligram v. Nurhurry Balkrishna (1894) ILR 18 Bom. 368 and Ramnathan v. Anna Malal [1931] AIR (Mad.) 825. The contention of Mr. Chakraborty that the documents of which inspection was applied for in the present case are those which are referred to in Order XI, Rule 15, cannot, therefore, be accepted.

But conceding that the contention of Mr. Chakraborty is correct, Mr. Chakraborty is not right in saying that an omission to give inspection of the documents referred to in Order XI, Rule 15, entails an automatic dismissal of the suit where the person refusing inspection is the Plaintiff. Order XI, Rule 15, itself provides for the effect of non-compliance with a demand for inspection made in terms of Order XI, Rule 15 of the Code of Civil Procedure. That rule provides that a party, desiring inspection has to give notice to the other party and if the latter refuses inspection, the consequence is that the party refusing is not to be allowed to put in such document of which inspection was refused as evidence unless sufficient cause is shown for such refusal. It is not necessary to refer to Order XI, Rules 16 and 17, which do not bear on the present question. Order XI, Rule 18(1) provides for a case where the parties are in dispute as to the time and place where inspection is to be had. The provision which, in my opinion, applies in case of documents not referred to in the pleadings or particulars of affidavit or disclosed in the affidavit of documents is to be found in Order XI, Rule 18(2). In regard to such documents, the party desiring inspection has to make an application supported by an affidavit specifying the documents of which inspection is sought and stating that the applicant is entitled to inspect such documents and that the documents are in the possession or power of the party concerned. On such an application being made, the court has to enquire whether inspection of the documents is necessary for disposing of the suit or for saving costs. If the court is satisfied that inspection is necessary, the court will make an order as provided for in the sub-rule.

In the present case the statement of facts which I have made clearly shows that no order was made in terms of Order XI, Rule 18(2). In fact, the order of Mr. B.C. Nandi, the predecessor of the present subordinate Judge, and dated January 4, 1952, is specific that the Defendant No. 1, that is, the Appellant, did not take any steps under Order XI of the Code. There is, therefore, no justification for the contention raised by Mr. Chakraborty that a mere failure on the part of the Plaintiff Respondent necessitated a dismissal of the suit.

It must be remembered that Order XI, Rule 21, which empowers the trial court to dismiss the suit if the Plaintiff fails to comply with an order for inspection is not automatic in its operation. The court has a discretion in the matter. This was decided in the case of Bangshi Singh v. Palit Singh [1907] 7 C.L.J. 295. Again, under Order XI, Rule 21, the court can act on the application of a party and not suo motu and when an application is made the court may make an order as expressly stated in Order XI, Rule 21. It is well-settled that the court does not impose the penalty under Order XI, Rule 21, except in clear cases and where the party refusing inspection is contumacious or has deliberately disobeyed the order of the court with full knowledge thereof. Bangshi Singh v. Palit Singh (supra).

In the present case, if the court had a discretion, quite, apart from the legal objection raised on behalf of the Appellant, the present case, in my opinion, is one in which that discretion should not be exercised in favour of the Defendant No. 1. No attempt was made by the Defendant No. 1 to have inspection of the documents filed long ago and it was Only after several peremptory dates for hearing had passed that an attempt was made to have inspection of the documents. In my opinion, the learned subordinate judge acted rightly in dismissing the application filed on behalf of the Defendant No. 1.

This conclusion is sufficient for the disposal of the appeal but Mr. Chakraborty, learned advocate for the Appellant, has pressed us to decide whether the second ground on which the learned subordinate judge refused the prayer for inspection, namely, that inspection should not be illegally conducted, is correct or not. In other words, Mr. Chakraborty has invited us to decide whether there was a legal justification on the part of Mr. Rakshit not to allow Mr. Ghose to have inspection of the documents.

Before I deal with this question, it is necessary to state the circumstances under which the inspection was applied for. Mr. Ghose is a learned advocate practising in this Court. He did not file a vakalatna.ma in the probate suit which was pending in the court below. He was instructed by Mr. Chatterji who was a pleader practising in the Alipur Court and who had filed a vakalatnama in that suit. The question is whether an advocate who has not filed a vakalainama but is instructed by another pleader who has filed one has an absolute right, as Mr. Chakraborty puts it, to have inspection of documents which are filed in a list of documents under the provisions of Order VII,. Rule 14(2) of the Code of Civil Procedure.

I shall refer to the provisions of the Code after I have explained the meaning of the words "to appear, to act and to "plead". The Code draws a clear distinction between these expressions. The words "to appear", in my opinion, mean "to be "present in court and to represent the client in the various stages "of the litigation where the presence of the client in court by "himself or his representation is necessary." The words "to act "in court" mean "to take on behalf of the client in court, or in "the office of the court necessary steps in the course of the "litigation so that his case may be properly laid before the court." The words "to appear", in my opinion, mean "to have audience "before the court". The material provisions which govern the rights of legal practitioners, either to appear or to act or to plead in court, are to be determined in the light of the provisions contained in Order III of the Code as also the "Civil Rules and Orders framed under the powers conferred on this Court by Clause 37 of the Letters Patent. The word "pleader" is defined in Section 2(15) to mean "any person entitled to appear and plead for another "in court" and includes "an advocate, a vakil and an attorney "of a High Court". Order III, Rule 1 provides that any application or act in or to any court, required or authorised by law to be made or done by the party in person may be made by a pleader appearing, applying or acting, as the case may be, on his behalf. Rule 4 then provides the mode in which a pleader may be appointed. Rule 4(2) provides that no pleader shall act unless appointed for the purpose by a document in writing signed by such person or his recognised agent or by some other person empowered by a power of attorney and such document shall be filed in court. Sub-rules 3 and 4 are not material for the present purpose. Sub-rule 5 provides that no pleader engaged for pleading only shall plead on behalf of any party unless a memorandum of appearance containing the particulars mentioned in Clauses (a), (b) and (c) has been filed in court. This sub-rule is subject to a proviso which runs as follows:

Provided that nothing in this sub-rule shall apply to any pleader engaged to plead on behalf of any party by any other pleader who has been duly appointed to act in court on behalf of such person.

In other words, the rule draws a distinction between a pleader who acts in the suit and a pleader who merely pleads in the cause. In regard to a pleader who acts in the suit or proceeding, the pleader must be duly empowered by a vakalatnama which should be filed in court. The exemption which is provided for in Rule 5 refers only to a pleading by a pleader who is instructed by another pleader. As I have already said, if a pleader wants the privilege of acting in a suit or roceeding, he must file in court the requisite vakalatnama as provided for in the rule any other pleader who has not filed a vakalatnama as aforesaid, can only plead on being instructed by another pleader but cannot act. That this is the true view is supported by the rules framed by this Court under Clause 37 of the Letters Patent. Rule 548 of the Civil Rules and Orders (1935) states that an advocate and pleader duly authorised by any person in that behalf can examine any specific record on payment of fees. Note 2 of that rule refers to inspection of documents. Rule 966 provides that no advocate, vakil or pleader without accepting in writing a vakalatnama and filing it in Court or accepting one already filed shall act in any case. In other words, the rules provide that no act can be done by a pleader who is merely instructed by another pleader but who has not filed a akalatnama in court or has not accepted a vakalatnama already filed. The right to plead, quite apart from acting, is specified in Rule 967. There is no question that the right to have inspection of a document is acting in the cause and an advocate who is merely instructed by another pleader who has. filed a vakalatnama but who has not filed one on his own account or has not accepted one already filed, has no right to have inspection of documents filed in a suit or proceeding. In my opinion, the learned judge was right in his conclusion and Mr. Rakshit was justified in refusing Mr. Ghose to have inspection of the documents. Both the contentions raised on behalf of the Appellant must fail and this appeal must be dismissed. In the circumstances, we make no order as to costs.

Guha Ray, J.

I agree.