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1984 SCC OnLine Guj 43 : AIR 1985 Guj 34 : 1984 GLH 1094

BEFORE R.A. MEHTA, J.

Jagatbhai Punjabhai Palkhiwala and others … Petitioners;

Versus
Vikrambhai Punjabhai Palkhiwala and others … Respondents.
Civil Rev. Appl. No. 718 of 1982*
Decided on March 9, 1984
ORDER
1. In Civil Suit No. 1825/81 by the petitioners-plaintiffs an application (notice of
motion) was given for certain interim orders. The dispute is amongst family members
and relates to number of businesses and large properties. It appears that there was
some appointment made of arbitrators and certain record was with the arbitrators who
are defendant opponents Nos. 9, 10 and 11.
2. In the suit a declaration is sought that the various businesses mentioned in
schedule ‘A’ and all the assets and properties of the businesses mentioned in schedule
A and described in particular in schedule E were the properties of the entire family in
which three branches of the family including that of the plaintiffs had 1/3 share each
and the defendants were liable to render true and full accounts thereof and for
partition of the share etc. In the notice of motion, prayers were made for an interim
order and injunction restraining the defendants Nos. 1 to 8 from carrying on
businesses mentioned in schedule A and from alienating in all the properties of the
said businesses and for appointment of receiver of the said businesses, for
appointment of Commissioner to make inspection and take possession of books of
accounts income-tax files, share transfer books etc. The plaintiffs also prayed for an
interim order for appointment of a Special officer of the Court to collect the arbitration
agreement and all records and proceedings and documents produced in the arbitration
proceedings, from the arbitrators. A notice of motion was presented on 8th July 1980
and on the same day, the Court was moved for urgent ex parte order and the trial
Court passed the following order:—
“Issue notice.

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A person to be named by Registrar be appointed as a Commissioner to make inventory

of the properties referred to in para (c).

The plaintiffs to deposit Rs. 750/-. Another person to be named by Registrar is

appointed as a Commissioner to make inventory in respect of point referred in para
D at the place mentioned herein.
The plaintiffs to deposit Rs. 200/- (Rs. Two hundred only).
Urgent process.
3. The prayers (C) and (D) are as follows:—
(C) That a Commissioner be appointed for making inventory and take possession of
all the books of accounts, papers, documents, income-tax returns, files share
registers, share transfer books share transfer forms, minute books and all other
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papers, documents statements eta, which may be found at the places of the
aforesaid businesses and at the residence of the first defendant and 6th defendant
whose addresses are given in the cause title of the notice of Motion and he be
directed to keep the same in safe custody, of the Hon'ble Court:
(D) That a Special Officer of the Court may be deputed to collect the aforesaid
arbitration agreement and all the record and proceedings and documents produced
in the arbitration proceedings from one of the arbitrators Shri Navnitlal Chokshi
defendant No. 11 at the following addresses, or from such other place where the
above mentioned documents are available at present”
4. For obtaining the above reliefs, the relevant averments in this connection are in
paras 61 and 63 of the application. In para 61, it is alleged that if the defendants
come to know about the institution of the suit the first and/or sixth defendant is likely
to manipulate the accounts in such a manner so as to deprive the plaintiffs of their
legitimate share and it will also make it difficult for the plaintiffs to prove their case.
5. In para 63, the plaintiffs have stated as follows:—
“The plaintiffs apprehend that if the said arbitration agreement and the record and
proceedings of said arbitration are, for one reason or other destroyed or become not
traceable, great injustice would be done to the plaintiffs. It is therefore, necessary
in the interest of justice that a Special Officer of the Court may be deputed to
collect the said documents from Shri Navnitbhai Chokshi defendant No. 11 and to
keep the same in the safe custody of the Hon'ble Court. By such an order no
injustice or inconvenience is likely to ensue to the defendants. It is also necessary
that immediate express order in this behalf be passed so that the above mentioned
apprehension may not turn out to be real”
6. The plaintiffs have not mentioned as to under which particular provision of law
these prayers were sought and the Court has also not specified any particular provision
at the time of passing order.
7. It is contended by the petitioners-plaintiffs that this is the only order of
appointment of Commissioner under O. 26 R. 10-B and therefore, under sub-r. (2),
the provisions of R. 10 are applicable and, therefore, all the documents taken
possession of by the Commissioner and produced in the Court is to be considered as
the evidence taken by him and under R. 10(2), the report of the Commissioner and
the evidence is to be treated as evidence in the suit and it is a part of the record and,
therefore, there is no need to file any affidavit and pleading to show the relevance,
admissibility and reliability of the documents and they are required to be exhibited.
8. An application Ex. 100 was presented to the trial Court during the course of
arguments at the hearing of the application for interim orders. In the application, it
was pointed out that the record of arbitration proceedings was kept under the safe
custody and now is brought in the Court and it was further claimed that it was
required to be ordered to be made part of the record of the suit and the files were
required to be given exhibit numbers as the same were required to be referred to at
that stage and, therefore, the prayer was made to take the record of arbitration
proceedings on the file of the suit and to give exhibit numbers to the said files. The
same was objected on behalf of the defendant No. 1 and some of the other defendants
and they stated that such record brought by the Court Commissioner cannot be taken
on record as prayed for. It was also pointed out that no affidavit referring to the

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documents had been filed. The learned trial Judge rejected the application with an
observation that the plaintiffs, if they so desire, shall make necessary affidavit pointing
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out the relevance and correctness of the documents they rely after giving proper
opportunity to the other side to meet with the same. This order is challenged by the
plaintiffs by the present revision under Sec. 115 of the CPC and it is contended that
under O. 26 R. 10B, read with R. 10(2), the Court ought to have treated all the
documents brought by the Commissioner on record as part of the record and should
have exhibited the same.

9. The learned Counsel for the petitioners has submitted and clarified that his
argument would cover not only the hearing of the interim application but also the
entire suit and all the documents are required to be exhibited under these provisions
for the purpose of suit also. He had also made it clear that his argument is based on
the provisions of R. 10B added by amendment in 1976 and but for that rule, he could
not have raised such contention and made any such prayer.
10. It would therefore, be necessary to refer to those provisions R. 10B is a
provision for commission for performance of a ministerial set and it reads as follows:—
10B(1) Where any question arising in a suit involves the performance of any
ministerial act which cannot in the opinion of the Court be conveniently performed
before the Court the Court may, if, for reasons to be recorded, it is of opinion that it
is necessary or expedient in the interests of justice so to do, issue a commission to
such person as it thinks fit directing him to perform that ministerial act and report
thereon to the Court
(2) The provisions of R. 10 of this Order shall apply in relation to a Commissioner
appointed under this rule as they apply in relation to a Commissioner appointed
under R. 9.(2)
11. Since sub-r. (2) applies the provisions of R. 10(2) that also may be reproduced
here for easy reference.
Rule 10(2) “The report of the Commissioner and the evidence taken by him but not
the evidence without the report shall be evidence in the suit and shall form a the
part of record; the Court or with the permission of the Court any of the parties to
the suit may examine the Commissioner personally in open Court touching any of
the matters referred to him or mentioned in his report or as to his report or as to
the manner in which he has made the investigation”
12. On the basis of the above rules, the learned Counsel for the petitioners
contends that the Commissioner who was appointed to perform the ministerial act of
making inventory of the arbitration agreement and of the record and proceedings and
the documents produced in the arbitration proceedings has in discharge of the
commission, taken possession of the documents and made a report and produced the
documents in the Court and, therefore, the said report and the documents brought by
him (as if it was “evidence taken by” him) be treated as evidence in the suit and made
part of the record and be exhibited.
13. The learned Counsel for the petitioners argued that R. 10B(2) applies to the
provisions of R. 10 in relation to a Commissioner appointed to perform a ministerial act
and made an exception in respect of the documents and materials collected by him
and the learned trial Judge ought to have directed the same to be treated as evidence
in the suit and be made a part of the record.
14. It is not possible to accept the contentions of the petitioners. The effect of the
contention is to derogate the ordinary rules of procedure and evidence and there does
not appear to be any reason whatsoever for attributing such legislative intention. First
of all the order of appointment of the Commissioner cannot be said to be under R.
10B. The petitioners-plaintiffs had not sought order under that rule nor the Court has
passed the order under that rule. It appears that the Court had passed the orders in
exercise of its inherent powers under S. 151 of the C.P.C. as the Courts have always
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been moved for passing the orders of inventory.
15. Even assuming that the order was passed under R. 10B the order could be for
performance of any ministerial act which cannot be conveniently performed before the
Court. It is inconvenient for the Court to go and make inventory itself and therefore a
Commission is issued for performance of making of an inventory. However, merely
because Commissioner has been appointed to perform that ministerial act the rules of
procedure and evidence will not change and

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will not be different. If the Court itself had performed the act R. 10B would not have
come into picture. Merely because the Court has ordered Commissioner to perform the
ministerial act there does not seem to be any reason why the fundamental rules of
procedure and evidence should change.

16. It is, however, contended by the learned Counsel for the petitioners that sub-r.
(2) is in simple and unambiguous terms and contains legislative mandate and makes
an exception and it has to be given its due and full effect. However, the effect of R. 10
which is applicable by virtue of R. 10B(2) is not as the petitioners contended.
Ministerial act is defined in Black's Law Dictionary (Page 899) as one which a person
performs — in obedience to the mandate of legal authority without regard to or the
exercise of his judgment upon the propriety of the act being done. The dictionary also
says that ministerial duty is one regarding which nothing is left to discretion and
ministerial function is a function as to which there is no occasion to use judgment and
discretion and ministerial officer is one whose duties are purely ministerial as distinct
from executive, legislative or judicial not involving exercise of judgment or discretion.
The term ‘ministerial’ is used in contrast to judicial. Thus under R. 10B, when a Court
appoints a Commissioner for performance of any ministerial act which cannot
conveniently be performed before the Court the Commissioner is not performing any
judicial act nor any act which would change the rights of parties or the procedures and
rules of evidence so as to prejudicially affect the rights of parties in the matter of
procedure.
17. Moreover, the Commissioner was appointed to make inventory only and he was
not appointed to take possession of the documents. Even if he was appointed to take
possession of the documents, it would not have made any difference Under O. 26 R.
10B the appointment is to perform merely a ministerial act and only those acts which
are covered by sub-r. (1) i.e. ministerial acts, to which only that sub-r. (2) will apply
so as to attract, the application of sub-r. 10(2). Therefore the report of the
Commissioner for the performance of that ministerial act and the evidence if he has
recorded himself would become the part of the record in the suit under R. 10(2), but
not whatever documents that may be incidentally or in course of the ministerial duty
come to his notice and he may take possession thereof. Such collection of documents
is not recording of evidence and he was not appointed for that purpose and if the
appointment is construed to such an extent as contended by the petitioners, such
appointment would be ultra vires the scope of R. 10B. R. 10B read with R. 10 does not
make any radical departure suggested by the learned Counsel for the petitioners. In
fact their contention is against the common sense and ordinary rules of convenience
and proper conduct of a litigation. Neither the language nor the spirit nor the purpose
of R. 10B justifies such radical departure from the ordinary rules of procedure and
evidence which are meant to facilitate convenient trial and fair opportunity to the other
side.
18. The other side has made a legitimate and right grievance that if any documents
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are referred to at the hearing about which the other side has no prior notice not only
they will be taken by surprise but they will also be prejudiced in view of the large
mass of the documents. They may have valid objections about the relevance,
admissibility and reliability of the same Unless the petitioners-plaintiffs refer to and
rely upon the same by way of some pleadings and affidavit neither the Court would be
in a position to conveniently conduct the trial nor the defendants would be having
reasonable and effective opportunity to defend.
19. In view of the circumstances stated above the impugned order of the learned
Trial Judge is perfectly justified and no interference is called for.
20. The learned Counsel for the opponents has raised objections about the
maintainability of the revision application on the grounds that (1) there is no case
decided and that (2) the trial Court has neither admitted nor rejected any evidence at
this stage and admissibility or otherwise of a document even if decided would not be a
case decided or even a part of the case decided because no rights and liabilities of the
parties are decided. It was also pointed out that there was no error of jurisdiction and
no material irregularity and no failure of justice or irreparable injuries caused to the
petitioners by the impugend order and hence the High Court ought not to entertain
and interfere in the revision application. In view of my

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conclusion that no interference is called for in the present case, it is not necessary to
deal with these objections.

21. In the result, the revision application fails and is dismissed with costs.
Revision dismissed.
———
* Against order of S.M. Sone, Judge 9th Court, City Civil Court, Ahmedabad, D/- 3-3-1982.

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