JUDGMENT
Dipak Kumar Sen, J.
1. In the suit filed by the appellant Dayashankar Gupta the respondent No. 1 and the defendant No. 1 in the suit made an application for the following order :-
“The plaintiff be directed to produce in this Court all the documents and/or articles mentioned in the Schedule here-under written within a date to be fixed by this Court.”
2. The said order was sought on the main ground that it was the apprehension of the respondent No. 1 that the said items might be tampered with by the plaintiff appeal.
3. The respondent No. 1 sought production of 13 items consisting of voluminous documents including Bank Registers, Bank Ledgers, cancelled Cheques and a typewriter. In the said application an ad-interim order was passed on the 17th July 1986 as follows :
“Mr. Tarun Goswami, Advocate is appointed Receiver at an initial remuneration of 60 G.Ms. to be paid by the petitioner at the first instance for the purpose of initialling each and every page of the documents mentioned against Serial Nos. (a) to (e) in Annexure A to the petition as well as the entries relating to the accounts of the defendants Nos. 1 and 2. The Receiver will also take the number of the Typewriter mentioned in the schedule.
The Receiver will also initial and take numbers of the cheques or other loose documents and also note the nature of the books and how many documents have been produced before him and if they are not produced, he will make a note of the reasons for the same from the paintiff.
The Receiver will attend the office of the plaintiff Bank at No. 6 Colootola Street, Calcutta-73 in course of today. Receiver will submit his report by 21st July 1986.
The matter will appear before the Bench taking interlocutory matters on 21st July 1986.”
4. The present appeal is from the said order. On an application made in the appeal filed on the 18th July 1986, the appeal was admitted and the operation of the said order under appeal was stayed.
5. At the hearing of the application in the appeal at the instance of the parties the appeal was treated as in the day’s list. The appearing respondents waived service of notice of appeal. By consent of the appearing parties filing of paper-book was dispensed with. The pleadings and documents before the first Court were producer and considered, and at the instance of the parties the appeal was heard along with the application.
6. It has been contended on behalf of the appellant that the order under appeal is without jurisdiction. The respondent No. 1, the applicant in the first Court did not even ask for an ad-interim order or any order of the nature as was passed.
7. Learned Advocate for the respondent No. 1 contended to the contrary. He submitted that the impugned order was not an appealable order and the Appeal Court should not interfere with the same in any manner. It was further submitted that in the facts and circumstances it was necessary for the protection of the rights of the respondents and, in particular, of the respondent No. 1 that the said order should continue. It was submitted further that the order being only an ad-interim order and as the application in which the said order had been made remained pending before the first Court, at the stage the Appeal Court should not interfere in the matter. In support of the respective contentions of the parties the following decisions were cited at the Bar.
(a) Padam Sen and Anr. v. The State of Uttar Pradesh . This decision was cited for the proposition laid down by the Supreme Court that a Court had no inherent power under Section 151 of the Code of Civil Procedure to appoint a Commissioner to seize account books in possession of the plaintiff on the ground of apprehension of the defendant that the same might be tampered with. The Supreme Court laid down further that it was not the business of a Court to collect evidence for a party and to prevent anticipated forgery of evidence.
(b) Manohar Dal Chopra v. Rai Bahadur Rao Raja Seth Hiralal . This decision was cited for the proposition laid down by the Supreme Court that nothing in the Civil Procedure Code should be deemed to limit or otherwise affect the inherent powers of a Court to make orders necessary for the ends of justice. But such jurisdiction should not be exercised to nullify the provisions of the Code.
(c) India Foils Ltd. v. The Fifth Industrial Tribunal West Bengal and Ors. . This decision of a learned Judge was cited for the proposition that under Order 11 Rule 14 of the Code of Civil Procedure a Court had ample powers to make an order for production of documents at any time during the pendency of the suit. The Court however should satisfy itself and record that the documents called for were in the possession or power of the party against whom the order is sought and that the documents related to the matter in question before the Court.
(d) Shah Babulal Khimji v. Jayaben D. Kania and Anr. . In this case the Supreme Court considered inter alia, the appealability of interim orders. It was laid down that interlocutory orders, which were not made appealable under Order 43 Rule 1 of the code of Civil Procedure but which were final in nature and adversely affected the valuable right of any party or concluded an important aspect of the trial, should be treated as an appealable judgment within the meaning of Clause 15 of the Letters Patent.
8. It appears to us that the contentions of the appellant are not without substance. The ad-interim order under appeal is apparently beyond the scope of the application in which the said order was made. The respondent No 1, did not expressly ask for the order which has been passed. By the ad-interim order, it appears that a Receiver has been appointed and in conferred dominion and custody over documents and records and other articles of the plaintiff for the limited purpose of putting his signature thereon. An order appointing a Receiver is appealable order under Order 43 Rule 1 of the Code of Civil Procedure.
9. The order under appeal in our view would cause great prejudice and hardship to the appellant inasmuch as books and accounts would normally be required for its day to day work. Under the said ad-interim order, the same would have to be set apart and made available to the Receiver for implementation. The process will be time consuming. In any event, the said items affected by the order under appeal are not the subject matter of the suit but may only be evidence and there is no authority for the proposition that a party to a suit is entitled to have a Receiver appointed over items which might, constitute evidence in the suit. At this stage before the written statement is filed it cannot also be determined whether the said items would be evidence in the suit. For the reasons as above, the appeal succeeds. The impugned order dated the 17th July 1986 is set aside. We make it clear that this order is being made without prejudice to the rights and contentions of the parties in the pending application which only seeks production of the documents and other items under Order 11 of the Code of Civil Procedure. Costs in the suit.
Monjula Bose, J.
10. I agree