GYANAND CHOUDHARY Vs. JAYA NAND CHOUDHARY

JUDGEMENT

(1.) The sole original plaintiff was initially the petitioner in this application. During the pendency of this application, he having died, his heirs have been duly substituted. The petitioners being aggrieved by the order dated 21st September, 1974, passed by the 2nd Addl. Subordinate Judge, Darbhanga, in Title Suit No. 366/59 of 1972/74 have obtained this rule. By the impugned order, the court below has held that the defendants were entitled to inspect three documents at serial Nos. 1 to 3 of the petition in the court below which were sale deeds dated 15.10.1909, 2.4.1912 and 1.11.1941. Incidentally it may be mentioned that a prayer had also been made for the inspection of a fourth document which prayer has been rejected. We are not concerned with that part of the order.

(2.) This application must fail on a short ground alone. The order impugned is not one of such a nature which can be said to fall within the term 'case decided'. It is well settled that although 'case' must be construed in a wider sense so as to include also decisions at various stages of the suit, yet they must relate to adjudication of right or obligations of parties for purpose of deciding the suit or proceeding. Reference in this connection may be made to the decisions of the Supreme Court in the case of Major S.S. Khanna v. F.J. Dhllion and Baldevdas Shivlal v. Filmistan Distributors (India) Pvt. Ltd . In the case of Ramgulam Choudhary v. Nawin Choudhary , Untyalia, J.: (as he then was) held: There are many kinds of interlocutory orders, where; loosely speeking one may argue that some right or obligation of the parties in controversy is decided therein, but applying the true meaning of the principle laid down by the Supreme Court in Baldevdas's case, one has to notice that there is no such right or obligation of the parties decided which can make it a case decided to attract the provision of Section 115 of the Code. As for example, some question in examination of cross-examination is disallowed, while it ought to have been allowed; some document is wrongly admitted in evidence, while it ought not to have been admitted, a pleader commissioner's report is confirmed or set aside and further investigation ordered; these will be the types of interlocutory orders which to my mind cannot be interfered with by the High Court within the meaning of Section 115 of the Code. An order of the nature of the impugned one, my view, falls within the category of the list, though not exhaustive, given in the foregoing quotation from the afore mentioned case.

(3.) Apart from that there is no substance in the submission that an order with regard to inspection or calling for documents can, in no case, be made before the filing of the written statement. The court below has rightly relied upon a Bench decision of this Court in Raja Bahadur Kamakshya Narain Singh v. Thakur Satnarain Singh 1955 B.L.J.R. 265. On merit Mr. Sudhakar Choudhary learned Counsel appearing for the petitioners tried to impress upon me the hardship which will be fall the plaintiff if the order is allowed to stand. My attention was further invited to a decision of this Court in Birendra Kumar Gupta v. Sm. Chinta Devi 1974 B.B.C.J. 176 for the proposition that in such cases an order with regard to the inspection ought not to be passed. In that case H.L. Agrawal, J. while holding that the pivilege of inspection by a party of the documents of his adversary was not a matter of routing observed that it could be allowed on judicial consideration. In exceptional cases, it was held granting of inspection prior to the filling of the written statement may in such cases result in fishing out false and frivolous pleas of defence by a defendant. The civil revision application, however, was dismissed since in that case the application for inspection made by the defendant had been rejected by the trial court. That case, therefore, is of no avail to learned Counsel for the petitioners.