Bhaidyanath and others vs Bholanath Roy and others

Das, J.—This application is directed against an order of the learned Subordinate Judge of Dhanbad, dated the 19th June 1922. The learned Subordinate Judge directed the defendants No 2 and 3 to produce the account books of certain collieries which are the subject matter of the dispute between the parties.

Now the suit is for a declaration that a certain compromise to which the plaintiff was a party was fraudulently entered into and for partition of the joint family properties. The plaintiff is a step brother of defendant No. 1; the defendant No. 2 is the son one Bireshar the brother of defendant No. 1, and defendant No. 3 is the wife of defendant No. 1. It appears that there was a suit by Bireshar and Botto Kristo Roy defendant No. 1 as against the members of a Committee that were appointed to manage the joint family properties by the will of their father. In that suit a Receiver was appointed to take charge of the joint family properties. The petitioners allege that in September 1914, Ramkanali colliery which is one of the properties in dispute in this litigation was settled with Bireshar the father of defendant No. 2 and with one Barat defendant No. 4. Subsequently it appears that a formal lease was granted to Bireshar and it is alleged by the petitioners that Baidyanath the son of Bireshar who has been cited in this litigation as defendant No 2 has taken a conveyance of Barat''s interest. As regards the other colliery which is referred to as Ganshdiha colliery the facts are these.

In 1916 there was a suit for partition by the plaintiff against the defendants and that suit was compromised upon terms that the colliery should be sold to the wives of Bireshar and Butto Kristo. The colliery was in fact sold subject to certain incumbrances to Satya Devi the wife of Bireshar and Asokalata Devi the wife of Butto Kristo. Satya Desi is dead and her interest has devolved on defendant No. 2. Asokalata Devi has, as I have already mentioned, been cited as defendant No. 3 in the action. Now it is obvious that in order to succeed, the plaintiff must first of all get rid of two transactions, firstly the transaction of September 1914 by which the receiver settled Ramkanali colliery with Bireshar and Barat, and secondly the compromise decree in the suit of 1916.

The order which is complained of was passed in an application by the plaintiff to compel the defendants to produce the account books relating to Ramkanali colliery and Ganshdiha colliery. The learned Subordinate Judge thought that there was no reason why defendants 2 and 3 should not produce the account books of the collieries in question and he has passed an order upon them to produce those books without delay.

Now in my opinion the order of the learned Subordinate Judge cannot for a moment be supported. The question of production of documents is dealt with in Order 11, rule 14 C.P.C. Now an order as to production of documents must follow an order as to an affidavit of documents which is dealt with in order 11, rule 12 of the Code. There is, so fact as I am aware, no order upon the defendants compelling them to tile an affidavit of documents, and if an order had been passed upon the defendants, it would have been open to them to say that so long as ''he plaintiff had not established his title to the collieries in question it was not open to the Court to compel him to disclose his account books relating to those collieries. But it is contended before us on behalf of the plaintiff that he has grave apprehension that the defendants may tamper with these account books. Mr. P.K. Sen on behalf of the defendants agrees to produce the account books from 1916 to 1922 before the Court so that the Court may affix the seal of the Court on every page of these books of account. We therefore order by consent of the parties that the defendant do produce these books of account from 1916 before the Court in order to enable the Court to affix its seal upon every page of these books of account. That being done, the books of account will be returned to the defendants. It is understood that the plaintiffs will not be entitled to an inspection of these books of account until they succeed in establishing their title to these collieries which they can only do by inducing the Court to hold that the compromise decree was fraudulent and that the transaction of September 1914 does not bind them.

There will be no order as to costs.

Let the record be sent down at once.

Kulwant Sahay, J.

I agree.