DEBASIS SAHU Vs. NABEEN CHANDRA SAHU

JUDGEMENT

(1.) This revision application is directed against the order dated 4-5-2002 passed by the Civil Judge (Senior Division), Aska, in T.S. No. 65 of 1997 rejecting the petition filed under O. 13, R. 10 of the Code of Civil Procedure (in short 'C.P.C.') by defendant No. 1, the petitioner herein, with a prayer to call for certain documents from the office of the Asstt. Commissioner of Income-tax, Berhampur, as well as the Sub-Registrar, Kabisuryanagar.

(2.) The short facts so narrated in the revision application tend to reveal that O.P. No. 1 as plaintiff has filed the aforesaid T.S.No. 65 of 1997 for partition of the suit lands making the present petitioner and O.P. No. 2 as defendants. During the course of hearing of the suit, defendant No. 1 filed a petition under O. 13, R. 10, C.P.C. contending that the plaintiff-O.P. No. 1 and his father had separately submitted income-tax returns and also filed statements before the income-tax authority disclosing therein partition of their ancestral properties in the year 1955 in terms of the decree passed in T.S.No. 126 of 1955. As the present petitioner-defendant No. 1 has taken a plea that the suit properties had already been partitioned and are no more available for partition in the present suit and as the plaintiff has denied the earlier partition, defendant No. 1 in order to prove the same prayed to call for the income-tax returns as well as the statements filed by the plaintiff before the income-tax authority, being materials documents, and are available with the Asstt. Commissioner of Income-tax, Berhampur, since the application for certified copies of the aforesaid documents was rejected. The petitioner in the aforesaid application also prayed to call for certain other documents mentioned at serial Nos. 11 to 27 from the office of the Sub-Registrar, Kabisuryanagar. The learned Civil Judge (Senior Division) has by the impugned order rejected the prayer of the petitioner in view of the bar of S. 123 of the Evidence Act holding that the Court is not competent to call for the documents from the Income-tax Office in view of the restrictions contained in the Income-tax Act as well as Ss. 123 and 124 of the Evidence Act. So far as the documents sought to be summoned from the office of the Sub-Registrar are concerned, the trial Court rejected the prayer of the petitioner holding that it is open to the petitioner to get the certified copies of those documents and file the same before the Court. Against the aforesaid order, defendant No. 1 has filed the present revision application.

(3.) Shri Ashok Mukherjee, learned senior counsel, appearing for the petitioner, submits that the Civil Court has fallen into error by holding that the income-tax records of the opposite party so sought to be called for from the custody of the Asstt. Commissioner of Income-tax are privileged documents, and cannot be summoned in view of the restriction imposed by S. 123 of the Evidence Act. On the contrary, Shri Rath for the opposite party submits that those documents cannot be summoned in view of the restriction imposed under the provisions of Ss. 123 and 124 of the Evidence Act as well as S. 138 of the Income-tax Act. Section 138 of the Income-tax Act deals with "Disclosure of information respecting assessees." Learned counsel for the petitioner specifically draws my attention to the provision in S. 138(1)(b) of the I.-T. Act, which is reproduced below :-