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Case Number
Attorney(S)
  • S.S. Dhavan
  • Hari Sarup and Jagdish Sarup
Judges
  • Hon'ble Mr. Prakash Narain Sapru
  • Hon'ble Mr. Chandra Bhan Agarwal
Acts
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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • S.S. Dhavan
  • Hari Sarup and Jagdish Sarup
Judges
  • Hon'ble Mr. Prakash Narain Sapru
  • Hon'ble Mr. Chandra Bhan Agarwal
Acts
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Smart Summary

Structured Summary of the Judgment (Agarwala, J.)

Factual and Procedural Background

The firm Vishudh Ghee Vyopar Mandal (the plaintiff / opposite party) sued the Union of India (the defendant / applicant in revision) in the Civil Judge's Court at Agra for recovery of Rs. 4,90,423/6/-, claiming the price of ghee supplied, damages for breach of contract and refund of security. The Union of India defended on the ground that the ghee supplied was adulterated and that the plaintiff had committed fraud, so was not entitled to the claimed sum.

Prior to the suit, the Special Police Establishment (created under the Delhi Special Police Establishment Act, 1946 — Act 25 of 1946) had investigated the matter and seized correspondence and certain documents from the plaintiff. The plaintiff sought an order directing the Union of India to produce those seized documents (application dated 31-8-1951), contending the Special Police would not permit inspection. The Union resisted, contending the documents were in the Special Police Establishment's possession and not under its control and that the ordinary Code of Civil Procedure procedure for summoning documents should be followed.

The plaintiff then sought to summon the documents in the ordinary course. Summons were issued to the Inspector General and the Superintendent of the Special Police Establishment to produce the documents on 2-1-1952. The documents were not produced on that date, the Court ordered production within three weeks, and the Superintendent subsequently sent the papers to Court (around 20-1-1952). The plaintiff inspected the papers but tendered only some in evidence. The defendant (Union of India) made out a list of other documents inspected by the plaintiff and called upon the plaintiff to give them in evidence under Section 163 of the Evidence Act. The plaintiff refused, arguing Section 163 did not apply because the documents had been summoned from a witness (the Special Police Establishment) rather than from the defendant.

The Civil Judge held that Section 163 could not apply because the documents were produced by a third party and not by the defendant, and that the plaintiff could not be compelled to give them as its evidence or to admit the documents filed by the defendant; additionally the Court noted the documents had not been tendered with proper lists. The Union of India (defendant in the original suit) filed a revision against that order under Section 115 CPC and Article 227 of the Constitution; the present opinion addresses that revision application.

Legal Issues Presented

  1. Whether the interlocutory order of the Civil Judge is a "case decided" within the meaning of Section 115 of the Code of Civil Procedure so as to permit revision by the High Court while the main suit remains pending.
  2. Whether Article 227 of the Constitution confers jurisdiction on the High Court to interfere with the interlocutory order in this matter.
  3. Whether documents produced to the Court by the Superintendent of the Special Police Establishment (or otherwise produced by a third party/witness) fall within the scope of Section 163 of the Evidence Act such that the party who inspected or caused their production can be compelled to give them in evidence.

Arguments of the Parties

Firm Vishudh Ghee Vyopar Mandal (Plaintiff / Opposite Party)

  • Contended that the Special Police Establishment had taken most documentary evidence and refused inspection, so the Court should order production or allow inspection to determine which documents the plaintiff should produce.
  • Insisted that the Special Police Establishment was under the control of the Union Government and therefore an order for production by the defendant should be made.
  • Through Mr. Jagdish Sarup, raised a preliminary objection to the revision: argued that the order below was not a "case decided" within Section 115 CPC because the suit was still pending and an interlocutory order in connection with the hearing does not make the matter revisable; therefore no revision lies to the High Court.

Union of India (Defendant / Applicant in Revision)

  • Referred the Court to a Calcutta High Court authority (Dhapi v. Ram Pershad, 14 Cal 768) — contending that authority supported its position; the High Court found the facts of that case were different and not governing the present matter.
  • Through Mr. Jagdish Swarup, contended that the "notice to produce" contemplated by Section 163 of the Evidence Act is a private notice (without the agency of the Court) and corresponds to the notice mentioned in Order 12, Rule 8, CPC; on that basis Section 163 should not be applied to documents produced via the Court's process or produced by a third party.
  • Argued that because the documents were produced by a witness (the Special Police Establishment) and not by the defendant directly, Section 163 should not apply to compel the plaintiff to give them in evidence or admit them.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Dhapi v. Ram Pershad, 14 Cal 768 Authority relied upon by a party in relation to revisability/interlocutory orders (as cited by the Union of India). The Court held the facts of that case were different from the present matter and that the decision did not govern the present case; it therefore did not apply the authority to justify revision here.

Court's Reasoning and Analysis

The Court first addressed the preliminary objection that the order below was not a "case decided" under Section 115 CPC and that therefore no revision lay. The Court explained that an interlocutory order connected with the hearing of a case on the merits—one which does not decide any right of the parties and does not prevent them from obtaining relief or from taking any plea in defence—hardly amounts to a "case decided" and is ordinarily not revisable under Section 115 while the main proceeding remains pending. Applying that principle to the order impugned, the Court concluded that the preliminary objection should prevail: the order below was interlocutory and passed in a matter directly connected with the hearing on merits, and it did not amount to a decision within Section 115. The Court also held that Article 227 did not confer jurisdiction to interfere in the matter of this kind.

Although dismissing the revision on procedural grounds, the Court proceeded to give its view on the substantive legal question raised below concerning Section 163 of the Evidence Act. The Court analyzed the position as follows:

  1. The Special Police Establishment was created by Act 25 of 1946 and, by Section 4 of that Act, the superintendence of the Establishment vests in the Central Government. Accordingly, the Establishment was a department of the Union of India and under its control, making the documents in the Establishment's possession also documents under the control of the Union of India.
  2. All the requirements of Section 163 of the Evidence Act had been fulfilled: notice to produce had been given by way of an application to the Court; the documents were produced in compliance with the plaintiff's request as ordered by the Court; and the plaintiff inspected them. Given these facts, the plaintiff was bound to give them as its evidence when required to do so by the defendant.
  3. On the contention that the "notice to produce" in Section 163 must be a private notice (the one mentioned in Order 12, Rule 8, CPC), the Court distinguished the types of notices: Order 12, Rule 8 contemplates notice to produce "at the time of the hearing" (so secondary evidence may be given if not produced), whereas Order 11 contemplates a notice to produce documents before the hearing to enable inspection. The Court held that Section 163 refers to a notice of the type mentioned in Order 11, and such a notice may be given privately or the Court may order production for inspection; the fact that the Court ordered production is immaterial to applicability of Section 163.
  4. Regarding the argument that the documents were produced by a witness and not by the defendant, the Court found that because the Superintendent of the Special Police Establishment was an official under the control of the Union, production by him amounted to production by the defendant. Even if the documents were treated as produced by a witness, they were filed in Court at the plaintiff's instance and thereby became the plaintiff's documents; the defendant could admit such of them as it chose and ask the Court to treat them as evidence.
  5. The Court noted a procedural requirement: the defendant should furnish a proper list of the documents as required by the rules; the defendant could still furnish such a list as directed by the Court below.

In sum, on the substantive point the Court considered the learned Civil Judge to have erred in holding Section 163 inapplicable, but due to the preliminary finding on revisability the Court did not set aside the order and limited itself to expressing this view.

Holding and Implications

Holding: The Court held that the interlocutory order of the Civil Judge was not a "case decided" within the meaning of Section 115 of the Code of Civil Procedure and therefore the High Court had no jurisdiction to entertain the revision under Section 115 in the pending suit; Article 227 likewise did not confer jurisdiction to interfere in a matter of this kind. Accordingly, the application in revision was dismissed.

The Court nevertheless concluded (as an opinion on the merits) that the Civil Judge had erred in holding that Section 163 of the Evidence Act could not apply to the documents in question. It reasoned that (i) the Special Police Establishment was under the control of the Union of India by virtue of Section 4 of Act 25 of 1946 so the documents were effectively under Union control, (ii) the procedural steps taken satisfied the requirements of Section 163, and (iii) production via the Establishment or the Court did not prevent Section 163 from applying; a proper list of documents should, however, be furnished.

Implications:

  • The immediate effect is procedural: the revision application is dismissed and the order below stands. The Court made no order as to costs.
  • The Court's substantive observations indicate that, on a future or properly framed application, documents in the hands of the Special Police Establishment (being under Central Government control) may, subject to due compliance with procedural requirements (including proper lists), be treated as documents producible under Section 163 of the Evidence Act. However, the Court did not set aside the impugned order or lay down a binding precedent on this point in the present proceeding because the revision was dismissed on jurisdictional (procedural) grounds.

Disposition: Revision dismissed. (No order as to costs.)

Show full summary ...

    Union Of India v. Firm Vishudh Ghee Vyopar Mandal

    Agarwala, J.:— This is an application in revision under Section 115 of the CPC and also Article 227 of the Constitution. It arises in the following circumstances:

    2. The opposite party, Firm Vishudh Ghee Vyopar Mandal, filed a suit in the Court of the Civil Judge, Agra, for recovery of a sum of Rs. 4,90,423/6/- as the price of ghee supplied to the applicant, the Union of India, for damages for breach of a contract and for refund of the security deposited by it with the Union of India.

    3. The suit was resisted by the applicant the Union of India, on the ground that the opposite party had supplied adulterated ghee and the adulteration was brought about by fraud practiced by the opposite party on the Union of India and the opposite party was not entitled to the money claimed.

    4. It appears that prior to the suit there was some investigation by the Special Police Establishment created under the Delhi Special Police Establishment Act, 1946 (Act 25 of 1946) into the matter. The Special Police took away certain correspondence that had passed between the parties ‘inter se’ or between them and their agents and certain documents from the possession of the opposite party. In the suit filed by the opposite party an application was made by it, asking the Court to direct the applicant, Union of India, to produce the documents which the Special Police had seized from its possession. That application was made on 31-8-1951. It was stated therein that the Special Police Establishment had taken away most of the documentary evidence upon which the plaintiff could and should rely and they were still in their possession, that with a view to find which particular documents the plaintiff should produce in the case it was necessary to inspect all those documents which were in the possession of the Special Police Establishment, that the Special Police Establishment was not prepared to permit inspection of the documents aforesaid to the plaintiff and that an order of the Court was necessary to secure an inspection of the documents above-mentioned. To this application a reply was given on behalf of the Union of India to the effect that the inspection prayed for by the plaintiff could not be ordered as the documents were in the possession of the Special Police Establishment and not of the Union of India and that the plaintiff could summon the documents by the usual procedure provided for in the Code of Civil Procedure. The position that the Union of India took up at that stage was that the Special Police Establishment was not under its control. The plaintiff, however, again insisted that the Special Police Establishment was under the control of the Union Government and that an order for production of the documents should be made. At a later stage, however, the plaintiff made an application that the documents in the possession of the Special Police Establishment may be summoned in the ordinary course and that, after inspection, it would tender such documents as its evidence as it considered necessary. Summonses were issued to the Inspector General and the Superintendent of the Special Police Establishment on 17-12-1951, directing them to produce the documents concerned on 2-1-1952. On that date, however, the documents were not produced in Court upon which the plaintiff applied that a commissioner might be appointed to bring the documents before the Court or in the alternative the Court might be pleased to order that, if the papers were not produced as per order of the Court, the defendant would be penalized. It added that the defendant was in default by not having complied with the order. The Court thereupon passed an order directing that such documents be produced in Court within three weeks. In, compliance with the order of the Court the Superintendent of the Special Police Establishment sent the papers to Court through one of his officers on or about 20-1-1952. The papers having been filed in Court, the plaintiff inspected them in the usual manner as records in the custody of a Court are inspected but did not tender all the documents inspected by it as its evidence. It wanted to tender some of them only in evidence. Thereupon, the defendant made out a list of other documents out of the documents inspected by the plaintiff and filed it in Court and called upon the plaintiff to give them in evidence under Section 163 of the Evidence Act. The plaintiff refused to do so on the ground that the said documents had not been summoned from the defendant, but were summoned from a witness and that therefore Section 163 of the Evidence Act did not apply.

    5. The learned Civil Judge considered that as the documents had been produced by a third party and not by the defendant, Section 163 of the Evidence Act could not apply and the plaintiff could not be compelled to give them as its evidence in the case or to admit the documents filed by the defendant. The Court added that the documents had not been tendered by the defendant with proper lists.

    “As soon as they are filed with proper list, the plaintiff shall admit or deny them as they are bound to do.” It is against this order that the defendant has come up in revision to this-Court.

    6. A preliminary objection to the hearing, of the application has been raised by Mr. Jagdish Sarup on behalf of the plaintiff opposite party. He has argued that the order of the Court below is not a case decided within the meaning of Section 115 of the CPC as the case in the Court below is still pending and that no revision lies to this Court. On behalf of the Union of India our attention has been invited to a case of the Calcutta High Court, namely, — ‘Dhapi v. Ram Pershad’, 14 Cal 768 (A). The facts of that case were, however, different from those of the present case and we do not think that the decision in that case governs the present case. The order of the Court below was passed in a matter which was directly connected with the hearing of the, case on the merits. While it cannot be said that an interlocutory order can never amount to a case decided, we think that when the hearing of a case on the merits is pending in: the Court below and an interlocutory order is passed in connection therewith which does not decide any right of the parties and does not prevent them from obtaining relief in respect of any part of their claim or from taking; any plea in defence, it can hardly be said that any case had been decided by the Court below. We think that the preliminary objection raised by Mr. Jagdish Sarup should prevail. Nor do we think that Article 227 of the Constitution confers on us jurisdiction to interfere in a matter of this kind.

    7. Though we are allowing the preliminary objection to prevail and are clearly of the opinion that the order impugned is not revisable, we think it desirable, in view of the importance of the case, to state that, in our opinion, the Court below fell into an error in thinking that the documents could not be taken in evidence under Section 163 of the Evidence Act. We shall now proceed to state our reasons that the view taken by the learned Civil Judge in this matter is a mistaken one. The Special Police Establishment was created by Act 25 of 1946. Section 4 of that Act provides that the superintendence of the Delhi Special Police Establishment shall vest in the Central Government. It was, therefore, a department of the Union of India and under its control. As such the documents in the possession of the Superintendent of the Special Police Establishment were also under the control of the Union of India. Indeed, this was the position that the plaintiff opposite-party had adopted all along in the case and at one stage of the case the Court below itself had held to the same effect. All the requirements of Section 163 of the Evidence Act were fulfilled in the case. Notice to produce the documents had been given by means of an application to the Court. The documents had been produced in compliance with the call of the plaintiff as ordered by the Court and the documents had been inspected by the plaintiff. The plaintiff was, therefore, bound to give them as its evidence when required to do so by the defendant. It was urged by Mr. Jagdish Swarup that the notice to produce mentioned in S. 163 is a private notice without the agency of the Court. He pointed out that the notice to produce as mentioned in Section 163 of the Evidence Act is the one which is mentioned in O. 12, R. 8 of the CPC. This contention is incorrect. That rule refers to a notice to produce documents “at the time of the hearing” so that if they are not produced, the party calling for them may give secondary evidence of the same. Another kind of notice to produce documents is the one mentioned in O. 11. It is a notice to produce documents ‘before’ the hearing of the case so that they may be inspected by the party calling for them. Section 163 of the Evidence Act mentions inspection of the documents of which notice has been given by a party to produce. Clearly notice to produce documents mentioned in Section 163 of the Evidence Act refers to a notice to produce documents as mentioned in O. 11 of the CPC. Such a notice may be given by a party privately to the other party concerned and, if the other party does not produce the documents, an order of the Court for the production of the documents for inspection may also be made. The mere fact that the agency which has ordered the production of the documents is the Court is immaterial. Further, it was urged that the documents having been produced by a witness, they could not fall within the category of documents contemplated in S. 163. As we have already pointed out, the documents were summoned by the plaintiff from the Superintendent of the Special Police Establishment after an application to that effect had been made by the plaintiff. As the Superintendent of the Special Police Establishment was an official of the defendant and was under its control, the production of the documents by the Superintendent of the Special Police Establishment was a production by the defendant itself and it was immaterial that a summons at one stage had been issued to him for their production. Even if the documents were assumed to have been produced by a witness and not by the defendant, they were the plaintiff's documents as they were filed in Court at its instance; and the defendant could admit such of them as it liked and thereupon ask the Court to treat them as evidence in the case.

    8. A proper list of the documents as required by the rules should have no doubt been furnished by the defendant. It can still do so as directed by the Court and we have no doubt that the Court below will act according to law.

    9. As, however, the preliminary objection prevails; this application must be dismissed. Accordingly, we dismiss this application in revision; but in the circumstances of the case we make no order as to costs.

    B/V.S.B

    10. Revision dismissed.

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    Union Of India v. Firm Vishudh Ghee Vyopar Mandal
    (Apr 2, 1953)