Amalgamated Commercial Traders (Pte.) Ltd. vs A.C.K. Krishnaswami

Anantanarayanan, C.J.—The proceeding before us is by the Amalgamated Commercial Traders Private Ltd., in the form of an appeal from

the judgment of Kailasam, J. in T.C.M.P. No. 39 of 1965 in T.C. 218 of 1959. We are of the view that the matter, essentially, lies within a

restricted compass. We have had extensive arguments presented before us, both by learned counsel for the appellant firm and learned counsel for

Sri A.C.K. Krishnaswami (respondent), but, there are several very good reasons why we need not cover the entire area of these submissions.

Actually, the relief now asked for is restricted in scope, and depends on the application of a certain limited principle of the procedural law. Again,

in view of the other proceedings that are pending now in this court between the same parties, and which are sub judice, and further, in view of the

admittedly most acrimonious and embittered relationship between the parties, it appears to us to be expedient and desirable to limit the scope of

our observations to the issue involved. Very briefly stated, the point is whether the appellant firm, represented by Sri G. Vasantha Pai, is entitled to

inspect the proceedings in T.C. 218 of 1959, to which proceeding the appellant firm was not a party. There is also a prayer for the grant of copies

of such of these documents as may be required for purpose of the prosecution of other proceedings by the firm, in company petition No. 87 of

1964 and C.S. 65 of 1964 on the Original Side; we desire to add here that we are restricting ourselves, for stated reasons, to the request for the

inspection of proceedings in T.C. 218 of 1959. With regard to the grant of the copies of documents we are referring the appellant firm to remedies

which should be available in the appropriate pending proceeding.

The main ground of objection to the grant of even the limited relief of inspection of the records in T.C. 218 of 1959 by the appellant firm, which

has been urged by learned counsel for the respondent (Sri A.C.K. Krishna swami), can be briefly set forth. Learned counsel (Sri Ismail)

strenuously contends that the appellant firm, not being a party to the tax case proceedings, is really attempting, by means of this devious route, to

fish for and to obtain material, in order to proceed in harassment against Sri A.C.K. Krishnaswami, in a feud that has now lasted quite a

considerable time. Sri Ismail argues that the appellant firm cannot be possibly bound by any observations of the Division Bench in that judgment,

with regard to the proprietary interest in the lease. Since the appellant firm is not a party, and cannot be bound by the judgment or by any part of it,

on any principle of res judicata, or an analogous concept, the request of the firm to inspect the documents is not bona fide. Counsel also points out

that the nature of those proceedings is unique, there is authority for the view that such proceedings are not in appellate jurisdiction, but are really

comprised in a special advisory jurisdiction of this court. Rule 65 of the Appellate Side rules (old), which has been relied on by Sri Vasantha Pai

for the petitioner firm, can, therefore, have no conceivable application. Where the rule does not apply, and the jurisdiction is special and governed

only by the provisions of the Indian income tax Act, the request for inspection ought to be refused. It is further contended that though the

respondent, (Sri A.C.K. Krishnaswami), does not concede that there is anything in the printed material or the typed papers of T.C. 218 of 1959,

which could possibly affect him by a disclosure, nevertheless, they are his personal documents, which he filed in those proceedings to which the

appellant firm was not a party; hence, that the request for inspection ought to be negatived.

A certain area of the scope of the judgment of Kailasam, J. in T.C.M.P. 39 of 1965 may be immediately excluded. The learned Judge seems to

have been concerned with the question, whether the proceeding could be termed a ""civil proceeding"" and whether the rules framed in the civil

jurisdiction of this court could have any application to a proceeding which was not of the nature of a civil proceeding, within the scope of Art.

133of the Constitution. But it has since been decided by their Lordships of the Supreme Court in S.A.L. Narayan Row and Another Vs. Ishwarlal

Bhagwandas and Another, , that even a proceeding taken for recovery of a tan was a ""civil proceeding"" and that there was no ground for

restricting the expression ""civil proceeding"" in the article, only to those proceedings which arise out of civil suits, or to proceedings which are tried

as ""civil suits"". The learned Judge (Kailasam, J.) permitted the appellant firm to have a scrutiny of the judgment in the tax case, but declined the

request for inspection of the documents filed in the case, or for grant of application for copies of such documents, which are claimed to be relevant

and essential, for defences in other pending proceedings.

We shall very briefly state our reasons why, in our view, the interests of justice do require the grant of the request of the petitioner firm, at least

to the extent of inspection of the documents in the tax case, and the making notes thereon with regard to identification of those documents. But, in

our view, with regard to grant of copies of such documents, which are themselves copies, we cannot now proceed into the matter of the remedies

that may be available to the petitioner firm. The petitioner firm will have to move this court, in appropriate jurisdiction in the two pending

proceedings, and will have to establish its case, with regard to the copy of each document that may be required, and the form in which the relief

should be afforded. But we have no doubt whatever that the petitioner firm has a clear and conceivable interest in obtaining inspection of these

documents, though the firm was not a party to the tax case, and that the arguments per contra urged for the respondent by Sri Ismail both with

regard to the substance of relief and with regard to the applicability of old rule 65, should be repelled, as not substantial.

The ground that the petitioner firm has a conceivable interest, is made evident by a passage in one of the counter affidavits which have figured at

certain early stages of the proceedings between these two parties, in which a paragraph from the Division Bench judgment has been quoted in

extenso, to show that the lease, though it stood nominally in the name of the petitioner firm, really belonged to the assessee himself (A.C.K.

Krishnaswami), and that he had the entire beneficial interest therein. This passage not merely figures in the affidavit, but it has also been referred to

in the judgment of Venkataraman, J. in that particular proceeding which is now under appeal and sub judice. We are inclined to agree with much of

what Sri Ismail forcibly urged that the judgment in the tax reference, to which the petitioner firm was not a party, cannot bind that firm, in any

sense, nor can observations therein preclude the firm from establishing its rights with regard to the lease. But the fact remains that those

observations were relied on, in one affidavit, in the protracted litigation between these parties, and we are unable to dismiss the possibility that,

under S. 13of the Indian Evidence Act, the concerned party may seek to rely on those very observations, as relevant, and as having some

probative value. We do not propose to discuss here the case law under S. 13, but, we are satisfied that the petitioner firm has a conceivable

interest in repelling the effect of the remarks of the Division Bench. That appeal necessarily implies, quite apart from any review or appeal in the tax

reference itself, which the petitioner firm may or may not seek to file from the judgment in the tax case, that the firm will equally have an interest in

knowing the nature of the material adduced in that case, upon which those observations happened to have been made.

Indisputably, the jurisdiction of this Court in the tax case is a special advisory jurisdiction under S. 66of the Indian income tax Act, and a catena

of authorities seems to be available to show that it is not an appellate jurisdiction, in any sense. It is also indisputable that Art. 133may not directly

apply to any such proceeding, for the simple reason that an appeal to the Supreme Court has been explicitly provided for in S. 66-A (2) of the

Act. But once the petitioner firm has shown that it has a conceivable interest in repelling the effect of those remarks made ex parte the question of

the relevant rule under which the firm should be granted the opportunity to inspect the documents, is of subsidiary importance. That is for the

simple and sufficient reason that the rules have been promulgated by this Court with regard to all forms of its jurisdiction special or otherwise, not

under any restricted power which would prevent this Bench from affording relief in a suitable case, but under Cl. 37 of the Letters Patent itself,

read with S. 122C.P. Code. Actually, that is how we conceive that rules have been framed, even with regard to the tax cases dealt with by virtue

of references by the concerned tribunal under the Indian income tax Act.

We have perused the records in the tax case for ourselves, and we find that they consist of two parts, one part, relates to the printed record,

which are orders and annexures : the other part comprises typed papers, which are supplied to this Court by the concerned party and are equally

part of the record of this Court. We find it difficult to conceive why a party who has shown a probability of his interest being affected, should be

prevented from looking into the records of this Court, which are in the custody of this Court, when he desires to know those particulars for his

defence in pending proceedings. We may add that the learned Judge (Kailasam, J.) has referred to a privilege which might be claimed by the

income tax authority, but that this is now academic and totally excluded. Learned Counsel for the income tax department also appeared before us

at the initial stage of the arguments, and submitted that the department was not concerned, and that it claimed no privilege whatever in respect of

these documents.

It appears to us that the principle of R. 65 of the old rules will certainly apply to this request even if, inform, these proceedings be not of the

character of proceedings in appellate jurisdiction. We are even inclined to hold that the rule does apply, for that rule may be said to relate to all

records in the custody of this Court, which are filed and kept as such, where a party affected desires to have personal inspection or scrutiny of

such records. We may add one observation, viz., that, at one stage of the arguments, Sri Ismail submitted that the proper procedure would be for

the petitioner-firm to move this Court in the original side where the original civil suit is pending, as at least three of the documents in the printed

record have been disclosed in the Schedule of Discovery of Documents filed there in accordance with the Original Side rules. Sri Vasantha Pai for

the petitioner firm replied to this by stressing that the inclusion of these documents in that schedule was subsequent to his application for inspection.

We think that that procedure suggested would be appropriate at the stage where the documents have to be sent for, if they have to be sent for at

all, and the Court may then decide that the petitioner firm is or is not entitled to have the documents sent for. We are advisedly making no

comment, one way or the other, about the merits of any such possible grounds. But, in our view, where the entire purpose of the petitioner firm is

to ascertain the particulars of these documents, in order to pursue. Its further reliefs, or to more effectively conduct its defences, in pending

proceedings, the fact that certain of those documents have been referred those the schedule of Discovery of Documents on the Original Side, is no

bar or factor of inhibition preventing the inspection.

Accordingly, we allow the appeal to this limited extent, viz., that the petitioner firm will sow be permitted to inspect the two sets of documents

forming part of the record in T.C. No. 218 of 1959, viz., the printed paper book and the typed set. We record an argument submitted with some

vigour before us by learned Counsel for the respondent, that, while the respondent does not shirk any disclosure of these documents, and, indeed,

has nothing to apprehend therefrom, he claims that the motive behind this request for inspection, considering the very embittered feelings between

the parties must be to institute a fishing expedition, in order to bring forward further charges against the respondent. Obviously, we cannot possibly

judge of such an imputation, and we are refraining from doing to. But we would equally record the assurances of Sri Vasantha Pai for the petitioner

firm, that the petitioner firm is not actuated by any such animus or malice, but is pursuing these reliefs purely in order to obtain justice with regard to

its rights in the alleged lease, and its right to recover custody of certain of its own account books which according to the petitioner firm, are still

with the respondent. With these observations, the appeal is allowed to this restricted extent. The inspection which we have authorised will be made

by Counsel for the petitioner firm, or Counsel deriving authority from him, in the presence of an officer of the Court, and the client will also be

permitted to be present, to give any instructions if required. Further application, if any for copies of any of these documents or for sending for them,

must be made only in the appropriate form, and in the appropriate proceeding, and must be dealt with by the Court as and when such application

is made. No costs.