Horendra Nath Mukerjee vs Girindra Kumar dutt

Jenkins, J.—His affidavit shows that the books are relevant. Why did you not apply for inspection and production? That would perhaps be the proper course to follow, but that is mere matter of form, and it was held in the case of Jadub Lall Shaw v. Kanai Lall Shaw ILR 20 Cal. 587 (1893) that that objection was a technical one and in that case, on a similar summons it was held that the course taken there by the applicant which was the same as that taken here, may, if preferred, be adopted. I can ask for production on this summons and I ask for that now.

But they have not come to meet that application. They will not be prejudiced as they have got an affidavit in reply. It has been the practice of this to Court allow applications of this nature. In the case of Majeti Subaya v. Ram Lall Jewraj (suit No. 318 of 1892, unreported), a similar application was made before Hill, J., on the 3rd September 1892. There the 3rd para, of the affidavit of document contained these words "that the Defendants claim to seal up such portions of the documents set out in the first part of the said Schedule A as do not relate to the matters in dispute." An application was made on a similar summons as in this case to consider the sufficiency of the affidavit, and Hill, J., ordered the Defendants to put in further affidavits showing documents or portions which he claimed to seal up.

Supposing there were thousand relevant entries. Is he to put them all in his affidavit ?] In the case I have just referred to, the further affidavit that was filed under that order contained a large number of entries. The entries cover more than five sheets of paper. A similar order on a similar summons was also made by Sale, J., on the 3rd May 1894 in the case of Mughee Bibee v. Heeralall (unreported).

The Judges in those cases you cite may have made those orders under the particular circumstances of the cases before them, but I cannot conceive that that can be the practice of the Court.] The practice may be technically wrong, but I submit on the authority of the cases I have cited we were entitled to make the application in this form. The reason why, I submit, such orders are made is, that the Court is entitled to have the oath of the party as to the documents or portions of documents which he claims to seal up. If a vague claim for protection, as in this affidavit, were allowed, how is the Court to order the Defendant to give inspection. The order in that case would have to be that the Defendant do give inspection of such portions as are relevant, and I submit a vague order of that nature would not be made. The Defendant could in that case carry out the order for inspection by merely giving inspection of one entry and refuse inspection of the rest on a mere statement, not on oath, that those entries do not relate to matters in dispute.

Jenkins, J., (to Mr. Woodroffe).--You must not raise any technical objection. The order I propose to make subject to what you may say is an order for inspection giving the Defendant liberty to seal up such parts as, by an affidavit to be made by you, do not relate to the matters in question in this suit.

Mr. J.G. Woodroffe

I submit this is a vexatious application. They have had inspection of this khattian, but if the Court orders it we will make the affidavit suggested.

Jenkins, J., (to Mr. Das).--Do you want a further affidavit

Mr. Das

Yes, as to the question of their not having any other books relating to the matters in question in this suit. After their affidavit of documents and on our pointing out, another account book was disclosed by them and we are entitled to have their oath that they have no other book.

Mr. Woodroffe

It will be sufficient if we set out this khattian and state that we have no further documents.

Jenkins, J.

You can do that in the affidavit in which you protect the irrelevant parts. Costs of this application to be costs in the cause.

I think in matters of this kind it would be better to proceed not according to the practice which may have been allowed as a matter of grace, but in proper form. It seems to me that the judges in the cases mentioned allowed these applications in the form in which they were granted as a matter of grace.