R. Kannan Adityan and Another vs B.S. Adityan and Others

S.A. Kader, J.—This unfortunate litigation pertains to the well known ""Thanthi Trust"" which publishes the popular Tamil daily

DINATHAN-THI"" (DAILY THANTHI) simultaneously at present from nine centres in Tamil Nadu. This Public trust was founded by a deed of

trust dated 1-3-1954 by the late S.B. Adityan, reverentially known as Si.PaAdityanar, a former speaker of the Madras Legislative Assembly and a

former Minister of the Government of Tamil Nadu. The appellants are the grandsons of the Founder, being the sons of his elder son B.R Adityan.

The first respondent herein, B.S. Adityan, is the younger son of the Founder. The object of this trust is to establish ''DINATHANTHI'' or ''DAILY

THANTHI'' as an organ of educated public opinion for the Tamil reading public, to disseminate news and to ventilate opinion upon all matters of

public interest through the said newspaper and to maintain the said newspaper and its position in efficient condition devoting the surplus income of

the said newspaper and its press after defraying all expenses in improving and enlarging the said newspaper and its services and placing the same

on a footing of permancy. By a supplemental deed of trust dated 28-6-1961 the Founder enlarged the objects of that trust and directed the

utilisation of the surplus income of the trust for

(1) establishing and running a school or college for the teaching of journalism;

(2) establishing and /or running or helping to run schools, colleges and other educational institutions for teaching arts and science;

(3) establishing scholarship for students of journalism, arts and science;

(4) for establishing and/or running or helping to run hostels for students;

(5) establishing and/or running or helping to run orphanages; and

(6) Other educational purposes.

By the original deed of trust dated 1-3-1954 the Founder appointed himself, his elder brother S.T. Adityan and his elder son B.R. Adityan as

trustees. On 19-5-1959, the Founders elder son and father of the appellants herein B.R. Adityan resigned his trusteeship. Thereupon, the Founder

appointed his younger son, the first respondent herein and the Educational Trustee Company Private Limited, the second respondent herein as

trustees of Thanthi Trust. On 8-11-1961 the Founder himself resigned his trusteeship and his elder brother S.T. Adityan resigned on 27-12-1963.

The respondents 1 and 2 continued to be the trustees of the Thanthi Trust.

In 1978, the Founder appointed himself, his elder brother S.T. Adityan and his elder son B.R. Adityan as additional trustees again, which led to

a spate of litigation. The first respondent herein filed (C.S. Nos. 352 and 353 of 1978) Thanthi Trust Rep. By(L) Director, B.S. Adityanar and 2

Others v. Si. Pa. Adityanar and Anr., on the file of this Court after obtaining the necessary permission u/s 92 of the CPC challenging the

appointment of the Additional trustee by the Founder. As a counter-blast the father of the appellants herein, B.R. Adityan and the Founder''s elder

brother S.T. Adityan filed Application No. 3147 of 1978 for leave to sue u/s 92 of the CPC for removing the first respondent from trusteeship.

The application was resisted by the first respondent. Pending these proceedings the three additional trustees viz., the Founder, his elder brother

S.T. Adityan and his elder son and father of the appellants resigned their trusteeship and the Application No. 3147 of 1978 for leave to sue was

also withdrawn. Consequently the first respondent withdrew his suits in C.S. Nos. 352 and 353 of 1978 as they became infructuous on account of

the resignation of the Additional trustees. These proceedings accordingly came to an end.

About two and a half years later, litigation cropped up again when the appellants herein filed Application No. 165 of 1981 u/s 92 of the CPC

for leave to sue. Along with this application a copy of the proposed plaint was produced into court containing several allegations of malfeasance,

misfeasance and non-feasance against the first respondent. The plaint catalogued as many as 17 documents in support of the averments in the plaint

and copies of all these documents were furnished in a typed set. It may be pointed out here and now that though serious allegations have been

levelled against the first respondent, the appellants/ applicants did not seek to remove the first respondent from trusteeship. They simply prayed for

their appointment as additional trustees and for rendition of accounts. This application was contested by the respondents and the first respondent

filed a counter-affidavit denying in each and every particular the allegations made against him in the proposed plaint. Inter alia he contended that the

appellants/ applicants were students living with their father, B.R. Adityan, that they are merely namelenders for their father, who had set them up,

not for the purpose of vindicating any public right, but only for agitating the personal right of the father and the sons and the application is not,

therefore, maintainable.

The respondents filed Application No. 879 of 1981 for summoning the appellants/applicants for cross-examination by the respondents. This

application was dismissed by Shanmukham, J., by his order dated 21-9-1981. An appeal there against was preferred by the respondents in

O.S.A. No. 152 of 1981 B.S. Adityan and 2 Ors. v. R. Kannan Adityan and Anr. A Bench of this Court consisting of K.B.N. Singh, C.J., and

Mohan, J., held that it would be in the interests of justice to permit the respondents herein to cross-examine the appellants/applicants with regard to

matters stated in the application and allowed the appeal. The appellants/applicants preferred SLP No. 6040 of 1982 before the Supreme Court.

The Supreme Court, while dismissing the petition, observed that the cross-examination of the appellants/applicants will be confined only to the

question of sanction and the principles governing the same. Thereafter the respondents gave notices to the counsel for the appellants on 24-8-1982

and 26-8-1982 to produce the originals or certified copies of the documents listed in the plaint for inspection. The counsel for the appellants by his

letter dated 30-8-1982 refused inspection. Whereupon the respondents filed Application No. 3124 of 1982 under Order 11, Rule 18, CPC for

directing the appellants/ applicants to file the original or certified copies of the documents mentioned in the list in the proposed plaint for inspection.

Swamikkannu, J., sitting in the Original Side, dismissed this application by his order dated 2-9-1982. The respondents took up the matter in

appeal in O.S.A. No. 160 of 1982, B.S. Adityan and 2 Ors. v. R. Kannan Adityan and Anr., which came up for hearing before a Bench of this

Court consisting of K.B.N. Singh, C.J., and Padmanabhan, J. Two questions arose for consideration before the Bench viz.:

(1) Whether the order of the single Judge dismissing the Application No. 3124 of 1982 for inspection of documents is a ''judgment'' and an appeal

lies there against under Clause (15) of the Letters Patent?

(2) Whether the applicants in the said application, who are the respondents herein, are entitled to inspection of the documents mentioned in the list

appended to the proposed plaint?

On the preliminary question of maintainability of the appeal the Bench observed thus:

The appellants (respondents herein) have taken the stand that the respondents (appellants herein) have no interest of their own in the Thanthi Trust,

that they are not suing in a representative capacity and that they are mere tools in the hands of their father B.R. Adityan. To establish that

contention the appellants require the inspection of the documents listed in the copy of the plaint filed by the respondents in order to effectively

cross-examine the respondents. When the appellants have been given the permission to cross-examine the respondents, it will be certainly open to

them to insist on the production of such documents as are necessary for an adjudication of the issue before the Court. The aim of Section 92 of the

CPC is intended to provide proceedings of a special nature for the purpose of determining the questions that relate to the administration of public

religious or charitable trusts and to prevent multifarious and vexatious suits being filed by irresponsible persons against the trustees whose duty it is

to administer such trusts. The suit must be fundamentally on behalf of the public for the vindication of a public right and infringement of private rights

is outside the scope of the section. It is precisely because of this the section provides that a suit can be instituted only with the leave of the Court.

The very object of giving the right of cross examination to the appellants is to enable the appellants to justify their case that no relief can be granted

to the respondents on the basis of the established principles governing sanction to institute the suit u/s 92 of the Code of Civil Procedure. To

effectively defend the application u/s 92 and also to effectively make use of the opportunity given to them for cross-examination of the respondents,

the appellants are entitled to inspect the documents that are necessary for them to establish their contention that the respondents are only tools in

the hands of their father, that their father is really behind the institution of the application for leave u/s 92 of the Code'' of Civil Procedure and that

the respondents neither represent the public nor have any interest in the Trust. Inasmuch as the order appealed against has negative the request of

the appellants for permission to inspect the documents relied upon by the plaintiffs, it must be deemed to have a direct and immediate adverse

effect on the appellants. The order appealed against has not only the effect of adversely affecting the valuable right granted to the appellants to

effectively cross-examine the respondents but also causes grave injustice to them, for, their case is that if these documents are allowed to be

inspected they will be able to establish that these documents have been handed over to the respondents only by their father and that the

respondents could not have had any direct knowledge or information about the Thanthi Trust. We are therefore of the view that the order appealed

against possesses the characteristics and trappings of finality and decides an important aspect of the proceedings initiated by the respondents u/s

92 of the Code of Civil Procedure

*** *** ***

We are of the view that in this case the denial of opportunity to the appellants to have inspection of the documents in the list attached to the plaint

would cause grave and substantial injustice to them. In this view, we are of the view that the order of the learned Judge is a Justment within the

meaning of Clause (15) of the Letters Patent and the appeal is maintainable. We overrule the preliminary objection.

On the second question whether the appellants (respondents herein) are entitled to the inspection of documents listed in the proposed plaint it was

contended by Mr. U.N.R. Rao, the learned Senior Counsel for the appellants herein that Order 11 of the CPC will apply only to suits and parties

thereto, that no suit as such has yet been instituted, and that therefore, the appellants (Respondents herein) will not be entitled to demand inspection

of the documents before leave is granted u/s 92 of the CPC and the suit is formally instituted. Rejecting this contention the Bench held:

The scheme of Section 92 of the CPC is, the suit must be filed in conformity with the provisions of Section 92 of the Code of Civil Procedure. In

other words, the Court has to satisfy itself whether the persons asking leave have interest in the trust, whether there are Prima facie grounds for

thinking that there is a breach of trust and whether the reliefs prayed for in the plaint fall within the reliefs mentioned in Clauses (a) to (h) of Section

92 of the Code of Civil Procedure. Viewed in this light, the plaint necessarily forms part of the application for leave to file a suit u/s 92 of the Code

of Civil Procedure.

*** *** ***

The suit must, therefore, in our opinion, be deemed to have commenced with the filing of the application for leave u/s 92 of the Code of Civil

Procedure. Consequently the Provisions of the Original Side Rules or the CPC will be attracted to the proceedings.

After referring to the amendment of Rule 15 of Order 11 of the Code of Civil Procedure, the Bench pointed out that the conflict of opinion

whether the Court could order inspection of documents entered in any list annexed to the pleadings has been set at rest by the amendment of

Order 11, Rule 15, CPC which now enables every part to a suit to give notice to any other party who has entered any document in any list

annexed to his pleadings, to produce such document for the inspection of the party giving such notice or his pleader and to permit him or them to

take copies thereof. The Bench goes on to observe that ""even assuming that an application for leave to sue u/s 92 of the CPC is not

commencement of the suit, such an application filed by a party can be said to be a civil proceeding and the procedure provided in the CPC in

regard to suits shall be followed in so far as it can be made applicable to such proceedings by virtue of Section 141 of the Code of Civil

Procedure."" Placing reliance on the Judgment of the Supreme Court in Ramchandra Aggarwal and Another Vs. State of Uttar Pradesh and

Another, , where the Supreme Court held that proceedings upon a reference u/s 146(1) of the Criminal Procedure Code entertained by a Civil

Court, not being an original proceedings, attract the provisions of Section 141 of the Code of Civil Procedure, the Bench observed that:

Whatever doubt there might have been prior to the above decision it is now settled by the above decision that the words Civil proceedings'' in

Section 141 are not necessarily confined to an original proceeding like a suit or an application for appointment of guardian etc., applied to all

proceedings which are not original proceedings.

The Bench was, therefore, of the view that the appellants (respondents therein) would be entitled to have inspection of the documents as required

by them. It was contended before the Bench by Mr. U.N.R. Rao that the term ''pleading'' would exclude an affidavit. The Bench found no merit in

this contention and held that the definition of ''Pleading'' according to the Original Side Rules, would take in affidavits also. The Bench found no

merit in the contention of Mr. U.N.R. Rao, that the request of the appellant (respondents herein) was only to cross-examine the respondents

(appellants herein) on the affidavit. The Bench observed that ""the substance of this application for cross-examination as well as the ultimate order

of the Supreme Court is to enable the appellants to prove their case, if they are so able to prove, that the application is not liable to be granted as it

cannot stand the test of the principles governing sanction."" The Bench also pointed out that the documents have not only been listed along with the,

plaint but copies thereof have been granted the appellants (respondents herein). The Bench find concluded that the appellants (respondents herein)

entitled to have inspection of the documents and use the same for cross-examination to the extent necessary for the purpose of Section 92, C.P.C.

application. The Bench therefore allowed the appeal, set aside the order of the single Judge and granted the application for production for

inspection of the original or certified copies of the documents listed in the Plaint.

In pursuance of this Bench decision the learned Counsel for the appellants herein produced for the inspection by the counsel for the respondents

herein two set of documents on 3-11-1982. The first set consisted of certified copies of the documents taken after the filing of the application for

leave to sue and the second set consisted of the source material i.e., the immediate originals from which copies in the typed set have been taken.

As according to the respondents this was not due compliance with the order of the Bench, they filed Application No. 4738 of 1982 under Order

11, Rule 21 of the CPC for dismissing Application No. 165 of 1981 filed by the appellants for leave to sue u/s 92 of the Code of Civil Procedure.

The application was contested by the appellants. Singaravelu, J-. in his order dated 11-2-1983 found that the appellants have not complied with

the order of the appellate Bench, in respect of the production of documents mentioned in the plaint, that they have withheld those documents in

order to prevent disclosure of the source and allowed the application. Consequently he dismissed the main Application No. 165 of 1981 for leave

to sue filed by the appellants. It is against these orders these appeals are preferred.

It may be pointed out that the judgment of the Bench of this Court in O.SA. No. 160 of 1982, directing the inspection of documents was

passed on 8th October, 1982 and the appellants did not prefer any appeal to the Supreme Court at that stage. On the other hand, they purported

to comply with the directions of the Bench of this Court and gave inspection of certain documents to the learned Counsel for the respondents. Only

after the application filed by the respondents in Application No. 4738 of 1982 under Order 11, Rule 21 of the CPC was allowed and the main

application filed by the appellants in Application No. 165 of 1981 for leave to sue u/s 92 of the CPC was dismissed by Singaravelu, J. (against

which the present appeals are filed), the appellants preferred SLP No. 3344 of 1983 before the Supreme Court against the decision of the Bench

in O.S.A. No. 160 of 1982 with an application to condone the delay. The Supreme Court held by its order dated 8-10-1982 that the SLP had

become in-fructuous by reason of the fact that the application filed by the petitioner u/s 92 of the Code of Civil Procedure, 1908, was itself

dismissed by the High Court on February 11, 1983. The Supreme Court observed further:

We are informed that an appeal under Clause (15) of the Letters Patent is pending before the Division Bench of the High Court against the order

passed by the learned single Judge under Order 11, Rule 21 of the Code. The petitioners are at liberty to raise the question as to whether an order

for production and inspection of documents under Order 11, Rules 14 and 18 of the Code could at all be passed.

In view of this observation of the Supreme Court it is contended by Mr. U.N.R. Rao, the learned Counsel for the appellants that the order of the

Bench of this Court in O.S.A. No. 160 of 1982, directing production and inspection of documents has been completely effaced and that the very

basis of the order of the learned single Judge, allowing the application filed by the respondents under Order 11, Rule 21 of the CPC and dismissing

the application of the petitioners-appellants for leave to sue u/s 92 of the CPC goes. This is a rather extravagant claim. As pointed out by Mr.

Cooper, the learned Counsel for the respondents, it would do grave injustice to contend that the Supreme Court has set aside the order of the

Bench in O.S.A. No. 160 of 1982 and effaced it thoroughly without even hearing the SLP and while disposing of the SLP as infructuous. The

order of the Bench stands and is not extinguished by the aforesaid observation of the Supreme Court. It is, however, open to the appellants ""to

raise the question as to whether the order for production and inspection of documents under Order 11, Rules 15 and 18 of the Code could at all

be passed.

Mr. U.N.R. Rao, the learned Counsel for the appellants did not canvass before us the question whether the order of the learned single Judge in

Application No. 3124 of 1982, refusing inspection documents is a ''judgment'' within the meaning of C1.15 of the Letters Patent and an appeal lies

thereat. He did not also challenge before us the applicability of the provisions of Order 11 of the CPC to a petition u/s 92 of the Code of Civil

Procedure. But, he raised an entirely new point against the very maintainability of Application No. 3124 of 1982 under Order 11, Rule 18(1) of

the Code of Civil Procedure, which runs thus:

Where the party served with notice under rule omits to give such notice of a time for inspection or objects to give inspection, or offers to inspect

pleader, the Court may, on the application of the party desired it, make an order for inspection in such place and in such manner as it may think fit:

Provided that the order shall not be made when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the

suit or for saving costs.

According to Mr. U.N.R. Rao, the notice given by the learned Counsel for the respondents for production of documents for inspection under Rule

15 of Order 11 is not proper and valid in law, as it did not quote the provision of law and as it was not in Form 7 of Appendix C. This is an

objection, which has not been raised in the counter in Application No. 3124 of 1982 for inspection of documents, nor in the arguments before the

Bench in O.S A. No. 160 of 1982, nor even in the Memorandum of Appeal in the SLP before the Supreme Court. This point is raised for the first

time before us and cannot, in our view, be allowed. The contention of Mr. U.N.R. Rao that this is a pure question of fact and can be raised at any

stage cannot be accepted. In Aiyanars and Kaniyala Swamigal Koli Devasthanam and Others Vs. Periakaruppa Thevan and Others, , a Bench of

this Court has held that the question as to the reasonableness and sufficiency of notice to quit u/s 106 of the Transfer of Property Act given by a

landlord to his tenant for a year is a pure question of fact and not one of law. This is an objection which must have been raised at an early stage

and, if not raised, must be deemed to have been waived. In Batoo Mal Vs. Rameshwar Nath and Others, , a Bench of the high Court of Delhi has

held that the failure of the tenant to raise the objection regarding the non-compliance with Section 106 of the Transfer of Property Act at an early

stage of the litigation would amount to a waiver of the plea. It is well settled that a point or objection which, if it had been raised at the first

instance, could have been cured or met by the other side, adopting a course of action, which is not open to him at the later stage, will not be

allowed. As rightly pointed out by Mr. Cooper, if the appellants had raised these objections to the sufficiency of notice for inspection under Order

11, Rule 15 of the Code earlier, it would have been open to the respondents to give a fresh notice and file a fresh application. This is too late a

stage to raise this plea, to allow which would cause grave injustice to the respondents.

Even on merits, we do not find any substance in the contention advanced by Mr. U.N.R. Rao about the sufficiency of the notice under Order

11, Rule 15 of the Code. It is contended by him that that the notice given by the learned Counsel for the respondents did not quote the provision of

Order 11, Rule 15 of the Code and was not in Form 7 of Appendix C as required by Rule 16 of Order 11. No doubt, Order 11, Rule 15 of the

Code has not been quoted in the first notice given on 24-8-1982 or in the second notice dated 26-8-1982 in reply to the letter of the learned

Counsel for the appellants dated 25-8-1982. But the non-mention of the provision of law is not a ground for holding that the notice is invalid, when

the notice is in substance in accordance with Rule 15 of Order 11 of the Code. It is well settled that where no provision of law is quoted or where

a wrong provision of law is quoted in an application before the Court, it is for the Court to apply the correct provision of law. Nor can the notice

be impugned on the ground that it is not in Form 7 of Appendix C. Forms are there only to be followed as Models and it cannot be insisted that

the forms must be adopted verbatim et literatim. Form No. 7 of Appendix C reads:

Take notice that the (Plaintiff or defendant) requires you to produce for his inspection the following documents....

Whereas the notice given by the learned Counsel for the respondents reads:

Kindly give an inspection of the documents

To contend that this form of notice given by the learned Counsel for the respondents is not in compliance with Form No. 7 of Appendix C is to

mistake the shadow for the substance. It was faintly argued that under Rule 17 of Order 11 of the Code, the party receiving the notice has ten

days'' time to give inspection and hence the application filed by the respondents under Order 11, Rule 18 of the Code before the expiry of 10 days

is not valid in law. This contention has no substance. The learned Counsel for the petitioners-appellants has in his reply dated 30-8-1982

categorically refused to give inspection and only thereafter, this application has been filed under Rule 18(1) of Order 11 of the Code. The rule itself

lays down that an application can be made under the said Rule when the party receiving notice objects to give inspection. We are not, therefore,

impressed with the materials marshalled by the learned Counsel for the appellants against the maintainability of the application under Order 11,

Rule 18 of the Code and overrule the same.

It is then urged by Mr. U.N.R. Rao, the learned Counsel for the appellants that under the Proviso to Rule 18(1) of Order 11, an order for

inspection shall not be made when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the suit or for

saving costs, that we are concerned only with the question of granting leave to sue u/s 92 of the Code and not with the truth or otherwise of the

allegations made against the first respondent in the proposed plaint and there is, therefore, no necessity for the production of the documents

mentioned in the plaint for inspection. In 1978 the appellants'' father B.R. Adityan filed Application No. 3147 of 1978 along with his senior

paternal uncle S.T. Adityan, the elder brother of the Founder for leave to sue u/s 92 of the Code of Civil Procedure, making serious allegations of

misfeasance and malfeasance against the first respondent. The application was withdrawn subsequently. About two years later, the appellants have

filed the present application for leave to sue and the proposed plaint contains several allegations of breach of trust against the first respondent

which, according to the respondents, are only a repetition of the allegations made by their father earlier. The appellants have not in their proposed

plaint sought the removal of the first respondent from the Trusteeship and their principal relief is for their appointment as Additional Trustees. The

main contention advanced by the respondents is that the present application and the proposed suit are a renewed attempt to interfere with the

management of the trust by the father of the appellants in the name of the appellants, that the appellants are living under the fostering care of their

father and know nothing about the Trust and that they have been set up by their father, not to vindicate any public right; but only to agitate for their

hereditary right for the Office of the Trustees. According to the respondents, the appellants'' father is the wirepuller and the appellants are mere

stooges in his hands, in other words, ""the hands are the hands of Esak but the voice is the voice of Jacob;"" The appellants are the sons of the

Founder and are, therefore, persons interested in this Public Trust. In Vaidyanatha Iyer and Anr. v. Swaminatha Iyer and Anr. 47 M.L.J. 300 : 51

I A. 352 : 82 Ind.Cas. 789 : AIR 1924 P.C.221, cited by Mr. Shanthi Bhushan, the learned Counsel who also argued for the appellants, the

Judicial Committee has held that the decendants in the female line from the founder of the charity have an ''interest'' therein within the meaning of

Section 92 of the Code of Civil Procedure. But that is not the end of the matter. The appellants are further to establish that they are suing in a

representative capacity to vindicate public right not for assertion of their private right. As pointed out by the Supreme court in Swami

Paramatmanand Saraswati and Another Vs. Ramji Tripathi and Another, .

... even if all the other ingredients of a suit u/s 92 are made out, if it is clear that the plaintiffs are not suing to vindicate the right of the public, but are

seeking a declaration of their individual or personal rights or the individual or personal rights of any other person or persons in whom they are

interested, then the suit would be outside to scope of Section 92. See N. Shanmukham Chetty Vs. M. Govinda Chetty and Others, ; The Tirumalai

Tirupati Devasthanams Committee Vs. Udiavar Krishnayya Shanbhaga and Others, ; Sugra Bibi v. Hasi Kummu Mia (1969) 2 S.C.J. 365 :

(1969) 3 S.C.R. 23 and Mulla CPC (13th Edition) Volume I, page 4001. A suit whose primary object or purpose is to remedy the infringement of

an individual right or to vindicate a private right does not fall under the section. It is not every suit claiming ''the reliefs specified in the section that

can be brought under the section but only the suits which, besides claiming any of the reliefs, are brought by individuals as representatives of the

public for vindication of public rights; and in deciding whether a suit falls within Section 92, the Court must go beyond the reliefs and have regard to

the capacity in which the plaintiffs are suing and to the purpose for which the suit was brought.

It is precisely to establish this contention of the respondents that the plaintiffs have been set up by their father to vindicate not any public right, but

their private right and get themselves appointed as additional trustees, that the respondents sought permission to cross-examine the appellants and

though the learned single Judge refused permission, a Bench of this Court allowed the appeal, holding that it would be in the interests of justice to

permit the respondents herein to cross-examine the appellants-applicants with regard to matters stated in the application. The Supreme Court has

confirmed this order of the Bench in SLP No. 6040 of 1982; but the cross-examination of the appellants has been directed to be confined only to

the question of sanction and the principles governing the same. The respondents now want the production for inspection of the documents listed in

the proposed plaint for effective cross-examination of the appellants-applicants and to establish that it is their father who has handed over these

documents to the appellants for the purpose of this litigation. The inspection of these documents is sought for not refuting the allegations made

against the first respondent in the proposed plaint, nor because the respondents are not in possession of these documents or could not obtain

certified copies thereof from the concerned Offices, but to substantiate their contention that the father of the applicants-appellants is behind the

scene and has supplied these documents to the appellants. In order to substantial this contention and to enable the Court to adjudicate on the

question of involvement of the father of the appellants in these proceedings the production of these documents listed in the plaint is indispensable.

We, therefore, find that the inspection of these documents is necessary for disposing fairly of the application u/s 92 of the Code of Civil Procedure.

As rightly pointed out by the Bench of this Court in O.S.A. No. 160 of 1982, when the respondents herein have been given permission to cross-

examine the appellants, it will certainly be open to them to insist on the production of the such documents as are necessary for adjudication of the

issue before Court and the denial of this opportunity to the respondents herein to have inspection of these documents in the list annexed to the

plaint would cause grave and substantial injustice to them. We respectfully agree with the decision of the Bench and hold that the Bench has rightly

directed the appellants to produce the documents listed in the plaint for inspection.

Three points now arise for consideration viz.,

(1) What is the nature and scope of the order of the Bench in O.S A. No. 160 of 1982?

(2) Whether the appellants-applicants have complied with the order of the Bench?

(3) If not, whether the default is wilful or deliberate so as to attract the provisions of Order 11, Rule 21 of the Code of Civil Procedure?

Point No. 1: The application filed by the respondents in Application No. 3124 of 1982 was for the production for inspection of the original or

certified copies of the documents mentioned in the list in the proposed plaint. This application has been allowed by the Bench in O.S.A. No. 160

of 1982. What is meant by the word ''Original'' is the first question to be answered. According to Mr. U.N.R. Rao and Mr. Shanthi Bhushan,

learned Counsel for the appellants, ''original'' means the basic document itself, while it is contended for the respondents that ''original'' means only

the source material or the immediate original from which copies in the typed sets have been prepared. The facts and circumstances to which we

shall presently refer clearly show that by ''original'' is meant not the basic document, but only the source materials from which the appellants have

taken copies furnished in the typed sets, which have been given to the Court as well as to the respondents. In the first place, admittedly appellants

are not and cannot be in possession of these basic documents -- Documents 1 and 2 are the Trust deed dated 1.3.1954 and the Supplementary

deed dated 28.6.1961. As rightly pointed out by Mr. Shanthi Bhushan, who also argued for the appellants, the basic documents of trust must be

with the respondents and it is admitted by the respondents that they are with them. Documents 3, 4 and 5 relate to Adityanar Educational

Institution and must be with the said Institution or the Registrar of Societies and not with the appellants. Document No. 6 is the deed of sale

executed by the second respondent, the Educational Trustees Company (P) Limited in favour of M/s. Rani Printers (P) Limited and the original

deed of sale must be with the vendee. Document No. 7 is aletter written by R. Krishnakanthan to Sun Paper Mills Limited and the basic document

viz., the original letter must be with M/s. Sun Paper Mills Limited. Documents 8 and 9, are deeds of Agreement of Lease between Daily Thanthi

and Malai Malar and the basic documents must be with them. Document No. 10 is the statement made by the first respondent, disclosing his

interest in several concerns and this basic document must be in the Office where the statement has been filed. Document No. 11 is the order of the

High Court dated 12.9.1978 and the real original must be in the High Court. Document No. 12 is the list of shareholders of Sivanthi Farms (P)

Limited and the document must be with M/s. Sivanthi Farms (P) Limited. Document No. 13 is the balance-sheet of M/s. Adityanar Educational

Institution, documents 14 and 15 are the balance-sheets of M/s. Rani Printers, document No. 16 is the balance-sheet of M/s Sun Paper Mills

Limited and document No. 17 is the profit and loss account of M/s. Sun Paper Mills Limited and the basic documents must be with the Registrar

of Companies. None of these 17 documents, can therefore, be with the appellants and it does not stand to reason that the respondents have called

upon the appellants to produce the basic documents which are not in their possession. It is abundantly clear that the appellants themselves have

understood by originals, not the basic documents but the source material from which copies in the typed sets have been prepared. That is the

reason why after the order of the Bench in O.S.A. No. 160 of 1982, they have given for inspection by the learned Counsel for the respondents the

source materials from which they claim to have taken copies furnished in the type sets. Those source materials have also been produced into Court

and they have been marked as documents 1-A to 17-A corresponding to documents 1 to 17 in the typed sets. There is no explanation as to why

the appellants have produced these source materials for inspection by the learned Counsel for the respondents if they meant by originals, not the

source materials but the basic documents. This is what the first appellant says in his counter affidavit to the application filed by the respondents in

Application No. 4738 of 1982 under Order 11, Rule 21 of the Code of Civil Procedure:

We have produced for inspection the copies of the documents which were in our possession at the time the plaint was prepared and which were

our source material. The typed set of papers were prepared only with the aid of those documents of which inspection had already been given to

the appellants.

The first appellant has further stated in his counter-affidavit that he obtained the source materials through Bagirathan Marthandam, formerly

Personal Assistant to the Founder and through Hyder Ali, PA. to his mother and from some shareholders. The appellants'' case is, therefore, that

they have complied with the order of the Bench and have given for inspection of the originals viz., the source materials 1-A to 17-A. On the first

day of the argument before us Mr. U.N.R. Rao, the learned Counsel for the appellants produced before us a tabular statement containing the

details of the documents 1 to 17 listed in the plaint, copies of which have been furnished in the typed set. The statement contains five columns.

Column No. 1 is the serial number, column No. 2 is the date of the documents, column No. 3 ""certified copy"", column No. 4 ""original"" and column

No. 5 is remarks. Under column No. 4 ""Original"", they have mentioned the source material documents 1-A to 17-A, Does this not show the

appellants themselves have understood the source materials as the originals sought for inspection? It was vehemently asserted by Mr. U.N.R. Rao,

that the copies in the typed sets are an exact replica of those source material documents. It is only at the later stage of the argument, the learned

Counsel for the appellants took the stand that the term ""originals'' means the basic documents and not the source materials. The reason for this

change of front is not far to seek. They realised, rather too late, that at least some of the copies in the typed set have not been prepared from the

source materials produced into Court and hence the shift in their stand. We, therefore, hold that the originals sought for inspection by the

respondents are not the basic documents but the source materials or the-immediate originals from which the copies have been prepared for the

typed set.

The respondents have applied for inspection of the originals or certified copies. It is contended by Mr. Shanthi Bhushan, the learned Counsel

for the appellants the ''certified copy'' means any certified copy, whether obtained before the filing of the application for leave to sue in January,

1981 or subsequently. This argument conveniently forgets the purpose or the object for which inspection of documents has been applied for by the

respondents and allowed by the Bench. As already pointed out, the respondents have sought or because they could not afford to take certified

plaint, not for the purpose of scanning the contents inspection of the documents listed in the proposed copies themselves; but only to find out

whether the appellants. This purpose will hardly be served by production of certified copies taken subsequently. There is, therefore, no doubt that

certified copies, if any, taken before the institution of the application for leave to sue.

We therefore, find that as per the order of the Bench in O.S.A. No. 160 of 1982 the appellants are bound to produce for inspection either the

source materials from which copies in the typed set have been prepared or certified copies taken prior to the institution of the petition for leave to

sue from which the copies in the typed sets have been taken.

Point No. 2: We may here refer to one of the arguments advanced before the learned single Judge by Mr. Vasantha Pai, the then learned

Counsel for the respondents and which has found favour with the learned single Judge viz., that the appellants have produced into Court along with

the proposed plaint and the typed set some documents and have surreptitiously taken them away subsequently. This argument is based upon two

circumstances viz., half of the docket sheet on the typed set filed with the plaint is missing and court-fee stamp to the value of Rs. 2 is also missing

in the papers filed into court when compared with the entry in the stamp register. It has been argued that the appellants must have taken back the

documents after making some endorsement in the docket of the typed set and this portion of the docket has been torn off and the missing stamp

must have been affixed on one of these documents. We are not in the least impressed with this contention. By wear and tear, docket sheets get

torn off and no sinister significance can be attached thereto. There may also be some mistake in entering the value of the stamps in the stamp

register and much cannot be made out of it. In fact, Mr. Cooper, the learned Counsel for the respondents candidly conceded that these

circumstances cannot lead to any inference that the appellants have produced some documents into Court and taken them back. We are,

therefore, unable to accept this part of the reasoning of the learned single Judge.

We have now to see by scrutiny and comparison whether the copies in the typed set filed into Court have been prepared from the source

materials produced by the appellants into Court which are marked as documents 1-A, to 17-A. In respect of documents 1, 2, 3, 8, 9, 10, 11, 16

and 17, Mr. Cooper, the learned Counsel for the respondents fairly conceded that there are only few omissions in the copies in the typed set and

there is no material discrepancy between the copies in the typed set and the source materials 1-A, 2-A, 3-A, 8-A, 9-A, 10-A, 11-A, 16-A and

17-A and it cannot therefore, be contended that these copies in the typed set have not been prepared from the above source materials. We,

therefore, find that the appellants have complied with the direction of the Bench and produced for inspection the immediate originals or source

materials in respect of documents 1, 2, 3, 8, 9, 10, 11, 16 and 17 in the typed set.

But as regards documents 4, 5, 6, 7, 12, 13, 14 and 15 in respect of which the corresponding source materials relied upon by the appellants

are documents 4-A, 5-A, 6-A, 7-A, 12-A, 13-A, 14-A and 15-A, Mr. Cooper, the learned Counsel for the respondents has been able to show

glaring discrepancies between the copies in the typed set and the above source materials produced by the appellants and establish that these

source materials are not the real source materials from which copies have been prepared in the typed set. We shall now deal with the above

documents one by one.

(a) Typed set document No. 4 - source material 4-A:

This is a copy of the list of General Body members of the Adityanar Educational Institution a society registered under the Societies Registration Act

21 of 1860, with the distinctive No. 7 of 1963. The source material is a manuscript copy of this list. It is the case of the appellants that their

mother''s P.A. Mr. Hyder Ali went to the Office of the Registrar of Societies and unofficially took this manuscript copy from the original filed in the

Registrar''s Office. Admittedly the said Hyder Ali has not applied for inspection or paid any fee therefor. Rule 41 of the Rules framed under the

Tamil Nadu Societies Registration Act 27 of 1975, which has repealed The Societies Registration Act 21 of 1860, in so far as it applied to the

State of Tamil Nadu, runs thus:

41 - Inspection of documents"":- (1) Any person, who desires to inspect the books kept by the Registrar, shall apply to him for the purpose

together with the prescribed fee; (2) Any person, who is allowed to inspect the documents relating to the Societies, shall not be entitled to take a

copy of such document.

Admittedly the said Hyder Ali has not applied for inspectionor paid any fee therefor. Even if he had applied for inspection, he would not have been

permitted to take a copy as per the above Rule. While so, the case of the appellants that Mr. Hyder Ali walked into the Office of the Registrar of

Societies and took an unofficial manuscript copy of this document is clearly unacceptable. And what is the necessity for taking an unofficial private

copy when an officially certified copy can be taken in no time? There are also discrepancies between document No. 4, in the typed set and the

manuscript copy 4-A. The name of Member No. 8 is clearly typed in the copy in the typed set as Mr. A. Murugaiah, while in the source

manuscript 4-A this name is illegible. The address of the tenth Member Mr. T.R. Balakrishnan is given in the typed set copy as ""Kilakadayam,

Kadayam Post, Tirunelveli District"" while in the source material 4-A, the address given is ""Kilakadayam Post, Tirunelveli District."" In the source

material 4-A, there are the words ""B.S. Adityan"" in the left bottom which are missing in the typed set copy, it is, therefore, clear that the copy in

the typed set could not have been prepared from this source material document-4-A. There must have been some other source from which the

copy in the typed set has been prepared.

(b) Typed set document No. 5--Source material 5-A:

This is a copy of the list of office-bearers of the aforesaid Adityanar Educational Institution. Hereagain, the source material 5-A is a manuscript

copy said to have been taken by Mr. Hyder Ali from the Office of the Registrar of Societies unofficially. As already pointed out in respect of

source material 4-A, it is impossible to accept this contention. In entry No. 1 in the copy in the typed set the words ""Regd. No. 7, 1963"" are put in

brackets, while there are no brackets in the manuscript source material 5-A. Similarly at the bottom, brackets are supplied to the words ""Regd."" in

the typed set copy, while there are no brackets in the manuscript source material 5-A. In the description of the office-bearers under the column

occupation"", it is mentioned as ""business"" in the source material 5-A; whereas in the copy in the typed set, it is stated as ""businessman"". It is

significant that the copy in the typed set is exactly like the original filled into the Office of the Registrar of Societies, as is seen from the subsequently

obtained certified copy, which has been marked as Ex.P-5. The conclusion is irresistible that the typed copy in the typed set must have been

prepared not from the source material 5-A filed into Court, but from some other source.

(c) Typed set document No. 6--source material 6-A:

This is a copy of a deed of sale dated 3rd March, 1972, executed by M/s. Educational Trustee Company Private Limited (second respondent

herein) in favour of M/s. Rani Printers Private Limited, registered as document No. 237 of 1972 in the Office of the Sub-Registrar, West Madras.

The source material is a manuscript copy running into 8 foolscap pages. According to the appellants, Mr. Hyder Ali, the P.A. to their mother, went

to the Office of the Sub-Registrar and took this manuscript copy of the entire deed of sale unofficially, without even applying for inspection or

paying the fee therefor. The rules relating to the inspection and search of documents under the Indian Registration Act have been framed by the

Government in the Notification of the Government of Madras, Judicial Department No. 444, dated Ootacamund August 1, 1893 u/s 91 of the

Indian Registration Act III of 1877 and as subsequently amended and these Rules are found at page 91 of the Tamil Nadu Registration Manual,

Part 1, 1976 Edition. Rule 1 enables any person to inspect one or more documents or registers in the office of the Sub-Registrar on submitting an

application therefore and on payment of necessary fee. Rule 2 prescribes the search fee; according to the year of the document. Rule 3 lays down

that if the search should prove fruitless, the fee paid shall not be refunded. Rule 4, which is relevant for our purpose, runs thus:

4- When the document or register referred to in the application has been found, the fee paid for search of the same will entitled the applicant to

read the document or the register or the portions of the document or register specified by him, ''or to have the same read to him, but it shall not

entitle him to take a copy of the document or register or of any part of the document or registers or to make extracts therefrom.

In the face of the aforesaid provision, it is puerile to contend that Mr. Hyder Ali went to the Office of the Sub-Registrar, West Madras, and

prepared a manuscript private copy of the entire deed of sale without even applying for inspection and the officials of the Registration Department

permitted him to do so. Now to the discrepancies between the copy in the typed set and this manuscript source material 6-A. The copy in the

typed set is in the form of the original and typed paragraph by paragraph, while the source material is a continuous running matter for 8 pages

without any break. It is urged by Mr. Shanthi Bushan, the learned Counsel for the appellants that strokes in pencil have been made in the source

material 6-A and with the help of the strokes are not uniform and could not have been a proper guide for the way in which the copy in the typed

set has been prepared. At page 13 of the typed set in paragraph 3 of this typed copy, line 2, there is the word ""and"", which is not found in the

manuscript source material 6-A. In the same line the word ""full"" found in source material 6-A is typed as ""fully"" in the copy in the typed set. At

page 14, paragraph 2, line 4, there is the word ""and"" which is missing in the source material 6-A. In the same page in Paragraph 3 the word

further"" has been supplied in the typed set, while this word is absent in the source material 6-A. In page 15 at the end of the first paragraph the

words ""two hundred"" are missing in the copy in the typed set. As pointed out by Mr. Cooper, the learned Counsel for the respondents, there may

be omissions in taking a copy from another document; but the typist cannot be expected to supply words not found in the source document. In

other words, omissions in the copy may be tolerated, but not additions. We find that in the copy in the typed set of this document several words

not found in the source material 6-A have been supplied by the typist. The argument of Shanthi Bushan that the typist was a very intelligent and

experienced one and has supplied the necessary words is too big a pill to swallow. The appellants have applied for and obtained a registration

copy of this deed of sale subsequently and it is marked as Ex.P.-6. The application for the copy has been made on 27-8-1982 and obtained on

the very same day. There is hardly any reason for sending a person to the Office of the Sub-Registrar and take a private manuscript copy

unofficially may clandestinely-when it is possible to apply for and obtain on the very same day a certified copy officially, which will be more useful,

more authentic and more reliable. We are convinced the document No. 6 in the typed set has not been prepared for the source material 6-A, but

from some other source, which has not been produced into Court.

(d) Typed set document No. 7--Source Material 7-A:

This is a copy of a letter written by One R. Krishnakanthan to the Manager, Sun Paper Mill Limited, disclosing his interest. The source material 7-

A is a cyclostyled copy of this letter said to have been handed over to the appellants by Mr. Bagirathan, formerly P.A. to the Founder. At the

bottom of the source material 7-A on the left side there is the word ""received"" and below it one Krishnamurthy has signed. In the typed copy of

this document the words are ""received the original."" The words ""the original"" have been introduced in the typed set. How? The signature of

Krishnamurthy is not at all clear and yet the typist has made it out and typed as ""R. Krishnamurthy"". The date below the signature found in the

source material 7-A is missing in the typed set. So also the words ""I do hereby give notice or renewal notice that"" are found missing in the typed

set. The only reasonable inference is that the copy in the typed set could not have, been prepared from the source material 7-A.

(e) Typed Set Document 12-Source Material 12-A:

This document is the copy of the list of shareholders of Sivanthi Farms (Private) Limited. It is urged on behalf of the appellants that Mr. Hyder Ali

went to the office of the Registrar of Companies on 21-10-1980, inspected the original filed with the Registrar on payment of a fee of Re. 1 under

Ex.P.16 and took an unofficial copy on the back of this receipt and on a separate paper. u/s 610 of the Indian Companies Act, any person may

inspect any document kept by the Registrar of Companies on payment of a fee of Re.1. But there is no provision under the Indian Companies Act

or the Rules framed thereunder, enabling any person permitted to inspect the document, to take a private copy thereof. Hence, this story that this

source material has been taken unofficially from the Office of the Registrar of Companies cannot be accepted. The manuscript source material is in

pencil and it is so faded that it is impossible for any typist to make out anything and prepare the copy in the typed set. In our view, the source

material 12-A is not the real source material for the copy in the typed set.

(f) Typed Set Document No. l3--Source Material 13-A:

This is a copy of the balance-sheet of Adityanar Educational Institution. The source material 13-A is a typed copy running into 4 foolscap pages

said to have been taken privately by Mr. Hyder Ali from the Office of the Registrar of Societies, as in the case of source material 4-A and 5-A,

and the same reasoning applies to this document also. While source materials 4-A and 5-A are handwritten manuscripts, this source material is a

typed copy full of figures. Does it mean that Hyder Ali took a typewriter to the Office of the Registrar of Societies and typed this matter from the

original filed with the Registrar, assuming that Mr. Hyder Ali knows typewriting, or did he type out this matter from one of the typewriters in that

Office? Are we to believe that such a thing was allowed by the staff of the Office of the Registrar of Societies? No. We cannot. Hence, Document

No. l3-A cannot be the real source material from which document No. 13 in the typed set has been prepared.

(g) Typed Set Documents 14 and 15--Source materials 14-A and 15-A:

Document No. 14 is a copy of the balance-sheet of Rani Printers (Private) Limited as on 31.12.1971 and document No. 15 is the balance-sheet

of Rani Printers (Private) Limited as on 31-12-1972. The source materials 14-A and 15-A are manuscript copies said to have been taken

unofficially and privately from the office of the Registrar of Companies. According to the appellants their mother''s P.A. Mr. Hyder Ali went to the

Office of the Registrar of Companies along with Krishnamachari, an Auditor''s clerk and it is the said Krishnamachari who prepared this

manuscript copies 14-A and 15-A from the originals with the Registrar of Companies. As already pointed out, there is no provision in the

Companies Act for any private person going to the Office of the Registrar and taking such unofficial private copies and the stray that Mr.

Krishnamachari took these copies from the Office of the Registrar of Companies cannot be accepted. There are many things more. The manuscript

source materials are written in the foolscap papers in the vertical form with liabilities in the top, and assets below; whereas in the copy in the typed

set, they are typed horizontally with the liabilities on the left side and the assets on the right side. In the copy in the typed set the headings are

underlined, but there is no such underlining in the manuscript source materials. A mere look at the copies in the typed set and the source materials

would show that the former could not have been prepared from the latter. At page 30 of the typed set against the provision for electricity to Rani

Syndicate is the figure of Rs. 32,250.00, while in the source material, this figure is given as Rs. 322.50 and that the correct figure, is found in the

typed set. How is it that the typist, typed the correct figure, while the source material gives a wrong figure? We are convinced that source materials

14-A and 15-A could not be the real source material for the preparation of the copies in the typed set.

On careful consideration, we find that the real source materials for documents 4, 5, 6, 7, 12, 13, 14 and 15 in the plaint for which copies have

been furnished in the typed set have not been produced for inspection, for: reasons best known to the appellants. Mr. Shanthi Bushan at the fag

end of his arguments urged that the appellants might have taken some of the copies in the typed set from some other source material, that they

might have forgotten the source materials and have produced into court the available materials; and it does not matter whether the real source

materials are produced for inspection or some other similar materials. This contention cannot be entertained. The very purpose for which inspection

has been ordered by the Bench is to find out whether the source materials have been supplied to the appellants by their father and this purpose

cannot be served, indeed, it will be defeated by the production of some other materials. This argument however, serves as a belated admission that

some of the real source materials have not been produced into court for inspection.

We have found that as per the order of the Bench in O.S.A. No. 160 of 1982 the appellants have to produce the source materials or the

immediate originals from which copies have been prepared for the typed set or certified copies taken prior to the filing of the application for leave

to sue from which copies could have been prepared for the typed set. According to the appellants, they have not taken any certified copy in

respect of any of these documents prior to the filing of the application. But at least in respect of one document viz., document No. 6 in the typed,

set, the deed of sale executed by M/s. Educational Trustees Company in favour of Rani Printers Limited, Mr. Hyder Ali has applied for a copy on

20-9-1980, as is seen from the copy of the copy application at page 120 of the respondents'' typed set. Even that certified copy of the sale deed

has not been produced. Whatever it may be, the liability of the appellants to produce the source materials from which copies have been prepared

for the typed set cannot be got rid of. On a consideration of all these facts, we find that the appellants have defaulted to comply with the order of

the Bench in O.S.A. No. 160 of 1982 and failed to produce the real source materials for documents 4, 5, 6, 7, 12, 13, 14 and 15 in the list

annexed to the plaint, for which copies have been furnished in the type set.

Point No''3: It now remains to be seen whether the default committed by the appellants is wilful or deliberate so as to attract the operation of

Order 11, Rule 21(1) of the Code of Civil Procedure. Rule 21(1) reads as follows:

21(1) where any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, he shall, if a plaintiff,

be liable to have his suit dismissed for want of prosecution, and, if a defendant, to have his defence, if any, struck out, and to be placed in the same

position as if he had not defended, and the party interrogating or seeking discovery of inspection may, apply to the court for an order to that effect,

and an order may be made on such application accordingly, after notice to the parties and after giving them a reasonable opportunity of being

heard.

The provisions of Order 11, Rule 21(1) are very stringent and have to be applied with great care and caution. The guidelines for invoking this

provision have thus been laid down by the Supreme Court in Babbar Sewing Machine Company Vs. Trilok Nath Mahajan, .

The test laid down is whether the default is wilful. In the case of a plaintiff, it entails in the dismissal of the suit and, therefore, an order for dismissal

ought not to be made under Order 11, Rule 21, unless the court is satisfied that the plaintiff was wilfully withholding information by refusing to

answer interrogatories or by withholding the documents which the ought to discover. In such an event, the plaintiff must take the consequence of

having his claim dismissed due to his default, i.e., by suppression of information which he was bound to give: ""Denvillier v. Myers 1883 W.N. 58.

In the case of the defendant, he is visited with the penalty that his defence is liable to be struck out and to be placed in the same position as if he

had not defended the suit.... The principle governing the court''s exercise of its discretion under Order 11, Rule 21, as already stated, is that it is

only when the default is wilful and as a last resort that the court should dismiss the suit or strike out the defence, when the party is guilty of such

contumacious conduct 6r there is a wilful attempt to disregard the order of the court.

In spite of this cautious approach, we find that the attitude of the appellants from the very beginning has been obstructionist and their default is

deliberate. The respondents wanted permission to cross-examine the appellants to establish that they have been set up by their father and this

application was resisted by the appellants and the request was turned down by the learned single judge. On appeal, a Bench of this Court

permitted to cross-examination and the same was confirmed by the Supreme Court in SLP No. 6040 of 1982. Thereafter the respondents applied

for the production of the documents listed in the plaint for inspection and this was flatly refused by the appellants by their learned Counsel''s letter

dated 30-8-1982. The appellants had to file an application under Order 11, Rule 18 of the CPC and though this application was rejected by the

learned trial judge, the Bench in O.S.A. No. 160 of 1982 allowed the same and directed the appellants to give inspection. In furtherance of the

order of the Bench, the appellants produced the documents 1-A to 17A as source materials from which they asserted that the copies in the typed

set had been prepared. We now find that the documents 4-A, 5-A, 6-A, 7-A, 12-A, 13-A, 14-A and 15-A are not the real source materials for

the preparation of documents 4, 5, 6, 7, 12, 13, 14 and 15 in the typed set. The appellants have thus not only failed to produce the real source

materials for the above documents, but have produced spurious documents as source materials. The default is, therefore, wilful, deliberate and

contumacious and the appellants have to thank themselves for the consequences flowing therefrom. The provisions of Order 11, Rule 21 of the

Code squarely apply and the learned single judge has rightly allowed Application No. 4738 of 1982 filed by the respondents and dismissed

Application No. 165 of 1981 filed by the appellants for leave to sue.

In the result, both the appeals fail and are dismissed with costs. Counsel fee one set. Counsel''s fee is Rs. 1,500.

Mr. U.N.R. Rao, learned Counsel for the appellants prays for leave to prefer an appeal to the Supreme Court. We find that this case does not

involve any substantial question of law, Which in our opinion needs to be decided by the Supreme Court. Hence it is not a fit case for grant of

leave. Leave refused.