In this case the facts are these:—
The petitioner having instituted a suit in the Court of the Deputy Commissioner of Maunbhoom, in order to prove her title, requested that officer to send, under section 138 of Act VIII of 1859, for the records of a case from the Court of the Judicial Commissioner of Chota Nagpore. The records were accordingly sent for, but the Judicial Commissioner refused to give them up, justifying his refusal by section 137 of Act X of 1877, and Circular Order No. 15, dated 16th December 1875.
Thereupon the petitioner applied to the High Court that the Judicial Commissioner should be directed to forward the record sent for.
Baboo Bhobany Churn Dutt appeared for the Petitioner.
The following order was made by the Court (1):—
In this case, we think that the Judicial Commissioner was not justified in refusing to send the record which had been sent for by Civil Court, under section 138 of Act VIII of 1859. The Judicial Commissioner had no discretion in the matter. The record had been sent for by a Civil Court for good and sufficient reasons, and it was not open to the Judicial Commissioner to question the propriety of the order of that Court.
The Circular Order to which the Judicial Commissioner refers, does not justify his order. It directs that records are to be sent when required for the purposes of section 138, and only points out that Courts are not to abuse the provisions of that section.
The Judicial Commissioner must be directed to send the record at once to the Court which sent for it.