1. We are invited in this Rule to set aside an order made by the Subordinate Judge of Dacca on the 25th May last under Order 11 Rule 14 of the Code of Civil Procedure of 1908.
2. The petitioners before this Court are defendants in an action commenced by the Opposite Party in the Court of the Subordinate Judge for dissolution of partnership for accounts and for incidental reliefs. The suit was instituted on the 12th March and the 6th May was fixed for the settlement of issues. On that day the defendants entered appearance; upon their application time was granted to some for two months and to others for one month to enable them to put in their defence, and the 8th July was fixed for the settlement of issues. On that day the defendants applied to the Court to call upon the plaintiffs to produce the documents in their possession. The plaintiffs did not oppose this application and prayed that the defendants might be called upon to produce the papers in their possession. The Subordinate Judge recorded an order to the effect that it was apparent that both the parties viewed each other with suspicion, and as the partnership which was sought to be dissolved had apparently been in existence for nearly a century, it would be safe to have all the papers of the business before the Court and marked for identification. On the 10th May the plaintiffs made a formal application for an order upon the defendants to produce the account papers of the business and three days later they themselves produced in Court the documents in their own possession. On the 17th May the defendants filed their petition of objection in which they contended that the Court had no authority to call for the papers of a business which was held at a place beyond the local jurisdiction of the Court, that many of the papers mentioned in the list filed by the plaintiffs had no existence, that the production of the papers would dislocate the work of the business and cause irreparable injury and that in substance the application of the plaintiffs was not bona fide, and should not be entertained. On the 22nd May the plaintiffs filed their answer to this petition of objection and stated therein that on the 6th May the pleader for the defendants had stated in Court that there was no dispute that the defendants were partners, that the only matter in controversy between them was as to the extent of the share of each of the contending parties and that consequently time was needed to file their written statements. It was further alleged that the story now set up by the defendants that the plaintiffs had no interest in the alleged partnership business was an after-thought and ought not to be seriously entertained. The Subordinate Judge went very carefully into the matter and on the 25th May made the order which is now challenged before this Court. The material portion of this order is in the following terms:
I (1) That the defendants shall produce all the collection papers of their taluks, zemindaries, and other landed property in their possession, of every fifth year or backwards from 1311. (2) that the defendants shall produce the jumakharach and khatian papers of the business, at every fifth year and backwards beginning from 1314.
II. I appoint Babu Satis Chandra Chatterjee as Commissioner in this case. The defendants are directed to produce whatever papers, title-deeds, decrees, account-books &c, they have in their possession or in the possession of the pleaders, mukhtears or other persons except (1) and the Commissioner is directed to (a) make a detailed inventory giving a copy of the title-page of those papers; (6) sign and mark under date each page noting the interlineations at the bottom of each page; in case of a blank page to mark it as blank; (c) page mark each khuta and account-book; (d) impound any particular document which he may think important and bring the same before the Court after signing &c.
3. The order further gives directions as to the manner in which the Commissioner is to act so that minimum of inconvenience may be caused to the parties.
4. On behalf of the defendants the propriety of this order has been assailed substantially on two grounds, namely, first, that it was not competent to the Court to make an order of this description before the issues had been settled, inasmuch as till that stage had been reached, no one could predicate what were the matters in question in the suit, and, secondly, that the order is unreasonable, specially in so far as it delegates to the Commissioner the power to decide what documents should be impounded and brought before the Court.
5. In support of the first contention it has been pointed out that Order 11, Rule 14 authorises the Court to order the production of such documents only as relate to the matter in question in the suit and that it is impossible to say what the matter in question in the suit is till a written statement has been filed by the defendant and issues framed. Reference has also been made to the form No. 6 in Appendix C to the Code of Civil Procedure to show that when the documents are produced the party at whose instance the order has been made is at liberty to inspect and peruse them and to make notes of their contents. It has been suggested that as in this case the Subordinate Judge has directed that neither the plaintiffs nor anyone on their behalf will be entitled to take any copy of entries or documents and as they are not to be allowed to have access to or examine the papers produced, it is conclusively established that the order for the production of the documents is erroneous. It has been argued on the other hand on behalf of the plaintiffs that the order for production has been rightly made and that so much of it as prevents the plaintiffs from access to or examination of the papers produced, is erroneous and inconsistent with the provisions of the Code. After a careful examination of the arguments addressed to us on both sides we must hold that the contention of the petitioners that an order under Order 11, Rule 14 cannot be made till the issues have been framed is not well-founded. Rule 14 provides expressly that it shall be lawful for the Court at any time during the pendency of any suit to order the production of documents. If the Legislature had intended that an order of this description should be made only after the issues have been framed, the Rule might have been appropriately worded. No doubt the order for the production of documents is to be limited to such documents alone as relate to matters in question in the suit, and the Court must, consequently, before it makes the order, determine for the purpose thereof what are the matters in question in the suit. But this may very well be made even before the issues have been framed, for as has happened in the circumstances of the present case, the statements by the parties themselves may enable the Court to ascertain the points in controversy before the written statement has been filed. The petition of the plaintiffs filed on the 22nd May shows clearly that on the 6th May the pleader for the defendants had stated that one at least of the matters in controversy between the parties was as to the extent of the interest of the plaintiffs in the partnership business; for the determination of this question, the papers of the partnership business would obviously be of great importance. Our attention was invited to the practice which prevails in the English Courts in the matter of the production of documents, and as Order 11, Rule 14 of our Code is practically identical with Order 31, Rule 14 of the Rules of the Supreme Court in England, reference may usefully be made to the English decisions on the subject. It appears that in the Chancery Division, it is the usual practice to allow a plaintiff discovery before evidence; see, for instance, the case of Union Bank of London v. Manby (1879) 13 Ch. Div. 239 in which it was observed by Lord Justice James that although a plaintiff has not in all cases an absolute right to obtain production of documents as soon as his statement of claim has been delivered, yet where there is no doubt what the matters in question are, an order for production may be made before the defence has been delivered. To the same effect are the cases of Henbord v. Monk (1878) 9 Ch. Div. 616 and Augustinus v. Nernicks (1880) 16 Ch. Div. 13. We are not unmindful that in the King’s Bench Division, discovery is not generally granted until after defence. But as was pointed out by Sir George Jessel in Bustros v. White (1876) 1 Q.B.D. 423 where there is any conflict or variance between the rules of the common law and equity with reference to the same matter, the rules of equity ought to prevail. We are not prepared, therefore, to uphold the contention of the petitioners and lay down as an inflexible rule of practice that no order for production of documents can be made under Rule 14 till the issues have been framed; to do so would, in our opinion, be an unwarrantable restriction of the plain language used by the Legislature in that Rule.
6. It was further suggested by the learned Vakil for the petitioners that the very fact that the Subordinate Judge has directed that the plaintiffs were not at liberty to examine the documents produced, conclusively showed that the documents were of a character the production of which ought not to have been ordered In our Opinion, there is no foundation for this argument. If the Subordinate Judge really intended to hold that the plaintiffs would not be entitled to examine the documents, the restriction was clearly erroneous and made the order for production practically infructuous.
7. The principles applicable to cases of this description are perfectly well-settled; A party cannot obtain a commission for the inspection or production of books or papers in order that he may ransack them for evidence to make out his case; he is entitled to production or inspection only when the same is material and necessary to establish his cause of action. No doubt a party cannot ask for discovery with a view to ascertain the evidence on which his opponent’s action or defence rests; but where the documents are material to the case of the applicant, it is no objection to their production or inspection that they relate to the case of his adversary. When the Court is satisfied that an order for production of document should be made, the time and place of inspection should be specified, and it should also give directions as to the manner of inspection. In the case before us we are not prepared to support the direction of the Subordinate Judge that neither the plaintiffs nor any one on their behalf shall have access to or examine the papers produced before the Commissioner. The first ground on which the order of the Subordinate Judge is challenged consequently fails.
8. In support of the second ground, it has been urged that the determination of the question as to which of the papers were to be brought before the Court, ought not to have been delegated to the Commissioner. It has also been suggested somewhat faintly that the direction given as to the time, place and manner of inspection were open to criticism. We are satisfied, however, that there is really nothing objectionable in these directions. But it is desirable to make it clear that after the inspection has been carried out, the documents are to remain in the custody of the defendants subject to the qualification which we shall presently state. We are of opinion that the Subordinate Judge ought not to have delegated to the Commissioner the exercise of the power which the Court possesses under Rule 14 to require the production of any document. When a particular document has been produced before the Commissioner and marked by him in the manner directed by the Subordinate Judge, it will be open to the plaintiffs to inspect it, and if they are advised that the production of any particular document in Court is necessary in the interest of justice, they must make an appropriate application to the Court, and the question will then be dealt with by the Subordinate Judge in the presence of both parties under Order 11, Rule 14.
9. We consequently direct that the order made by the Subordinate Judge be varied to this extent, namely, that the direction to the Commissioner to impound any particular document which he may think important and to bring the same before the Court, is Cancelled. We further direct that the instruction to the Commissioner that the plaintiffs are not to be allowed access to the documents produced or to examine them, is also cancelled In lieu thereof we direct that the plaintiffs be allowed an opportunity to examine the documents produced and that liberty be reserved to them to apply to the Subordinate Judge for production in Court of any particular document that may be found necessary for the purpose of the trial. We may add that the right to inspection ordinarily includes the right to have copies of the document Ormerod Grierson & Co. v. St. Georges Iron Works (1905) 1 Ch. 505; 74 L.J. Ch. 373; 53 W.R.502; 92 L.T.541 and Bevan v. Webb (1901) 2 Ch. 59 at p. 74;70 L.J. Ch. 536; 49 W.R. 548; 84 L.T. 609; 17 T.L.R. 440; but according to the practice which obtains in England the parties cannot make copies for themselves though they are entitled to be supplied with copies on payment of necessary fees to the Court In the Present case it would be sufficient to direct that the plaintiffs will be at liberty not merely to inspect the documents but also to make notes of their contents. If they find it necessary to obtain copy of a document they must apply to the Court for directions.
10. We desire to add that if was not seriously contended before us that this Court has no jurisdiction to revise the order of the Subordinate Judge. In our opinion there is no possible ground for controversy that if the Court is satisfied that an interlocutory order of the description now before us has been made without jurisdiction or under such circumstances as are likely to cause irreparable injury to one of the litigants, this Court has ample power to set matters right under Section 15 of Stat. 24 and 25 Vict. Chapter 104. It is needless, therefore,to consider whether the case of Dhapi v. Ram Pershad 14 C. 768 was correctly decided or to investigate the precise extent of the revisional powers of this Court under Section 115 of the Civil Procedure Code.
11. The Result, therefore, is that the order of the Subordinate Judge will be affirmed subject to the variations indicated. As the petitioners have substantially failed, they must pay the opposite party the costs of this Rule. We assess the hearing fee at 3 gold mohurs.