Dist. Board vs Atul Chandra Chandra

Fazl Ali, J.—This application is directed against an order passed by the Munsif, Second Court, Darbhanga under the following circumstances: The opposite party who is the plaintiff brought a suit against the District Board of Darbhanga and applied to the Munsif on 19th May 1934 for an order directing the defendant District Board to make discovery on oath of all the documents that were in the power and possession of the District Board reletting to the matter in question in the suit. On 11th June 1934 an affidavit of documents as required by Order 11, Rule 13 was made by one Thakur Prasad who is alleged to be the head clerk of the Samastipur Local Board.

The plaintiff objected to the affidavit on the ground that it should have been made by the chairman or the vice-chairman. The Munsif accepting the contention of the plaintiff directed the affidavit to be made by one of these two officers. On 27th June 1934 a petition was filed on behalf of the defendant asking the Court to permit one Babu Raghunandan Prasad who is the office superintendent of the District Board and who was alleged to have been given the power of attorney for looking after the cases and for making affidavits on behalf of the chairman and vice-chairman to make the affidavit.

The learned Munsif rejected the application holding that the chairman or the vice-chairman must make the affidavit and the present application is preferred against this order. The learned Munsif has referred to certain rules of the Supreme Court of England and points out in his order that the practice prevailing in that country with reference to a Municipal Corporation or limited company is that the affidavit of discovery must be made on behalf of the Corporation by the chairman or the executive officer. He has also referred to a decision of the Privy Council in Hentry Greer Robinson v. State or South Australia 1931 PC 254, in which Lord Blanesburgh refers to a case in which Lord Coleridge insisted on an affidavit being produced from the president of the Board of Trade himself.

Mr. L.K. Jha who appears on behalf of the petitioner contends that the point which is before this Court must be decided primarily with reference to the provisions of the CPC and relies on Order 3, Rule 1 which provides that any appearance, application or act in or to any Court required or authorized by law to be made or done by a party in such Court, may accept where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent or by a pleader appearing, applying or acting on his behalf.

His contention in short is that by reason of this provision an affidavit of documents which is required under Order 11, Rule 13 may be made by an authorized agent of the party. Now Order 11, Rule 13 runs thus:

Any party may, without filing any affidavit, apply to the Court for an order directing any other party to any suit to make discovery on oath of the documents which are or have been in his possession or power, relating to any matter in question therein. On the hearing of such application the Court may either refuse or adjourn the same, if satisfied that such discovery is not necessary, or not necessary at that stage of the suit, or make such order, either generally or limited to certain classes of documents, as may, in its discretion, be thought fit,

Rule 13 again states:

The affidavit to be made by a party against whom such order as is mentioned in the last preceding rule has been made, shall specify which of the documents therein mentioned he objects to produce, and it shall be in Form No. 5 in Appendix C, with such variations as circumstances may require.

A reference to Form No. 5 will show that ordinarily an affidavit under O.11, Rule 13 is to be made by the party himself; but we must also keep in view the provision made in Rule 12 that the Court may make such order as may in its discretion be thought fit. We must also not overlook that Rule 13 itself suggests that Form No. 5 in Appendix C may be varied if circumstances so require. It appears to me therefore upon the reading of these rules that although ordinarily an affidavit of documents must be made by the party himself, yet the Court may allow it to be made by an agent of the party in a particular case. It was therefore, in my opinion, within the discretion of the Court to accept the affidavit filed by the authorised agent of the chairman.

The fact however remains that under B. 12 the matter has been left to the discretion of the Court and that discretion is obviously to be exercised with special reference to the facts of each case. The Court may, for example, find in a particular case that an affidavit filed by a person who is said to be an authorized agent of the party is not sufficient. In this particular case, I find that the Court did not insist on the affidavit being filed by the chairman himself through whom the District Board has been sued; but has suggested that the affidavit might be filed by the vice-chairman.

As the matter is one which was within the discretion of the Court, I shall not be justified in interfering with the order of the Court and I think that if the Court is satisfied that the affidavit made by the office superintendent of the District Board will not serve the purpose, the vice- chairman should supplement the affidavit filed by the office superintendent, by his own affidavit which should state as suggested by the Munsif that he has made all necessary enquiries with reference to the documents and there are no documents other than those set forth in the affidavit relating to the matter in question. The rule is therefore discharged. There will be no order for costs.