SHIVLAL AMARJI Vs. MAGANLAL LAKHMICHAND
HIGH COURT OF GUJARAT
SHIVLAL AMARJI AND SONS
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(1.) These two petitions involve a common question by law as to whether a Civil Court has jurisdiction to order a party to produce certified copies of the account-books which were lying in the Sales Tax Department and so I am disposing both of them by this common judgment.
(2.) In both these matters the applicant is the same applicant-firm who was the defendant in the two suits, which were filed by the opponents in these two matters. The two plaintiffs had filed certain suits against the present applicant-firm on the basis of certain Vahies alleged to have been given to the plaintiffs on behalf of the applicant-firm by the manager of that firm who was related to these two plaintiffs-opponents. It was the case of the applicant-firm that the accounts of the firm had been manipulated for the benefit of his relatives by the said manager who was thereafter dismissed from service of the firm. During the pendency of the said two suits the applicant-firm was required to discover on oath the documents, which included the books of account in question. In both these cases it is not disputed between the parties that the applicant-firm had in its affidavit stated that the account books for the years Smt. 2007 to 2009 were lost while the books from Smt. 2014 to 2017 were produced before the Sales Tax Officer and were not in possession of the applicant-firm. The accounts for the years Smt. 2010 to 2013 were produced in the Court. Thereafter an application was given to the Civil Court on behalf of the plaintiffs to require the applicant-firm to produce certified copies of the accounts for the Smt. years 2014 to 2017. The Civil Court had ordered the applicant-firm to produce certified copies of the said account books which were lying in the Sales Tax Department as they were relevant to meet the case put up by the applicant-firm and were relevant to show how the accounts pertaining to the plaintiffs claim had been kept in these books. The applicant-firm has therefore filed the present two Civil Revision Applications challenging the said order as being without jurisdiction.
(3.) Mr. Chhaya and Mr. Shah vehemently argued that this order can be supported under sec. 151 of the Civil Procedure Code which provides that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for ends of justice or to prevent abuse of the process of the Court. Mr. Chhaya stated that the Sales Tax Officer could not be required to produce the account books lying before the Sales Tax Officer in view of the bar enacted by sec. 64 of the Bombay Sales Tax Act hereinafter referred to as the Act. Sec. 64(1) provides that all particulars contained in any statement made return furnished or accounts or documents produced in accordance with the Act...in the course of proceedings under the Act shall subject to the exceptions in sub-clause (3) be treated as confidential; and notwithstanding - standing anything contained in the Indian Evidence Act 1872 no Court shall save as aforesaid be entitled to require any servant of the Government to produce before it any such statement return account document or record or any part thereof or to give evidence before it in respect thereof. Exceptions in sub-clause (3) are not attracted and are not relevant for purpose. Mr. Chhaya argued that this prohibition extended only to the Sales Tax Officers or any servant of the Government being required to produce the account books as they were bound to treat the same as confidential but it was open to the parties to waive the privilege and to produce those account books or even the certified copies thereof. The order made by the Court was therefore for securing the ends of justice as otherwise this valuable evidence would be shut out from the record of the Court and on which rested the entire case of the present plaintiffs. Mr. Chhaya in this connection relied upon the decision of the Supreme Court in Manohar Lal Chopra v. Rai Bahadur Raha Sheth Hiralal A. I. R. 1962 S. C. 527 where it was held by the Supreme Court that in the face of sec. 151 of the Code which itself stated that nothing in the Code shall be deemed to limit or otherwise affect inherent powers of the Court it was not possible to hold that the provisions of the Code controlled inherent powers by limiting or otherwise affecting it. It was therefore held that the provisions of sec. 94 and 0.39 of the C. P. C. were not exhaustive as to the circumstances in which temporary injunction could be issued and the Court would have inherent jurisdiction to issue temporary injunction even in the circumstances which were not covered by the provisions of 0.39 of the Code if the Court was of the opinion that the interests of justice required the issue of such an interim injunction. It was however clarified at page 333 that the powers under sec:-
151 are not to be exercised when their exercise might be in conflict with what had been expressly provided by the Code or against the intentions of the Legislature. That restriction for practical purpose on the exercise of those powers was not because those powers were controlled by the provisions of the Code but because it should be presumed that the procedure specifically provided by the Legislature for orders in certain circumstances was dictated by the interests of justice. One further restriction was also mentioned as laid down in Padam Sen v. The State of Uttar Pradesh A.I.R. 1961 S.C.218. In that case the question for determination was whether a Munsif had the power to appoint a commissioner to seize account books in exercise of the inherent powers under sec. 151. It was held at page 219 that the inherent powers, which were saved by sec. 151, were with respect to the procedure to be followed by a Court in deciding the cause before it. Those powers were not powers over the substantive rights of litigants. The specific powers had to be conferred on the Court for passing such orders affecting such rights and such powers could not come within the scope of inherent powers of the Court in matters of procedure which powers had their source in the Court possessing all the essential powers to regulate its practice and procedure. It is therefore clearly settled that inherent powers could not be exercised so as to affect substantive rights or in cases where the Code had made exhaustive provision as regards certain matters and therefore there was a clear intention to exclude exercise of any such inherent power.;
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