SARKAR,J. - (1.) THIS is an application by the plaintiff for an order that the defendants do file a further and better affidavit of documents.
(2.) THE suit is for damages for breach of a contract for supply of cement by the defendants to the plaintiff. The defence, so far as is relevant for the present application is first that there was no contract between the parties. The second defence is that even if there was such a contract, cement being a controlled article the defendants were liable under the Control Order to supply cement to public bodies before supplying the plaintiff who was a private consumer and that it had not sufficient stock of cement to 'supply the plaintiff' after it had supplied the public bodies. It appears from the affidavit filed by the defendants in this application that they have certain stock books of cement. Admittedly these stock books are not relevant to the issue -whether there was a contract but are relevant to the issue whether the defendants had sufficient stock to supply the plaintiff after it had supplied the public bodies. There was a previous order for discovery against the defendants but they had not disclosed these stock books in the affidavit of documents that they had filed pursuant to that order. An affidavit of documents is ordinarily conclusive but the . Court can look into certain sources to find out if there are other relevent documents in the possession of the party affirming that affidavit and if satisfied about the existence of such documents to order a further and better affidavit of documents. It was held in British Association of Glass Bottle . v. Nettleford, (1912) A. C. 709 : (81 L. J. K. B. 1125) that the Court can for this purpose look into any document which contained an admission by the party affirming that affidavit of the existence of other documents. As in this case there is the defendants' own admission in his affidavit in this application I shall be fully justified in directing further discovery.
(3.) MR . Mitter relied on Order 11, Rule 20 of the Code of Civil Procedure which is in the following terms: 'Where the party from whom discovery of any kind or inspection is sought objects to the same, or any part thereof, the Court may, if satisfied that the right to the discovery or inspection sought depends on the determination of any issue or question in dispute in the suit, or that for any other reason it is desirable that any issue or question in dispute in the suit should be determined before deciding upon the right to the discovery or inspection, order that such issue or question be determined first, and reserve the question as to the discovery or inspection.' This rule is identical in terms with Order 31, Rule 20 of the Rules of the Supreme Court in England.;