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CASE NO.: Appeal (civil)  5735 of 2005

PETITIONER: Ila Vipin Pandya

RESPONDENT: Smita Ambalal Patel & Anr

DATE OF JUDGMENT: 01/05/2008

BENCH: S.B. Sinha & V.S. Sirpurkar

JUDGMENT: J U D G M E N T "REPORTABLE"

CIVIL APPEAL NO.5735 OF 2005

V.S. SIRPURKAR, J.

1.      The order passed by the Division Bench in an appeal against the  order passed by the learned Single Judge of that Court is in question  before us in this appeal.  Respondent No.1 (Smita Ambalal Patel) had  taken out the Chamber Summons in Testamentary Suit No.17 of 1996.  By  that summons she sought for the certified copies of Miscellaneous  Application No.1 of 2004 in the Testamentary Suit as also the transcript of  tape-recorded conversation between the appellant herein (Smt.Ila Pandya)  and the respondent No.2 (Ms.Fereshte Sethna).  The appellant had filed a  Testamentary Petition No.132 of 1996 before the Bombay High Court for  issuance of Letters of Administration in respect of the estate of her late  husband, namely, Shri Vipin Dalsukram Pandya.  In this suit the present  respondent no.1 (Smita Ambalal Patel) had filed a caveat.  Eventually the  Testamentary Petition came to be converted into Testamentary Suit.  Ila  Pandya was being represented by respondent no.2 Ms.Fereshte Sethna in  that suit.  However, it seems that the appellant sought for discharge of her  counsel in the case.  This was objected to by the respondent no.2 who  opposed the prayer of discharge.  The appellant, therefore, had preferred a  Chamber Order before the Prothonotary & Senior Master, High Court of  Bombay and eventually the respondent no.2 was discharged by the order  passed by the Additional Prothonotary & Senior Master dated 23.2.2004.   In these proceedings respondent no.2 filed Miscellaneous Application No.1  of 2004 alleging therein that the appellant Ila Pandya had committed  perjury and that an action should be taken against her.  This was probably  done as some allegations were made by the appellant against her  erstwhile counsel, respondent no.2.  The respondent no.2 in this  application had also tendered two audio cassettes in support of her  Miscellaneous Application No.1 of 2004. 2.      The request made by the present respondent Smita Ambalal Patel in  the Chamber Summons was resisted both by the appellant as well as the  second respondent. 3.      It seems that on 25th March, 2004 the High Court passed an order  directing that the copies of the papers and proceedings in Miscellaneous  Application No.1 of 2004 should be furnished only to the appellant and the  respondent no.2.  The respondent no.1 raised an objection to this by filing  an application for speaking to the Minutes dated 5th May, 2004 which  application was rejected by the High Court. 4.      Even a praecipe was moved by Prothonotary & Senior Master before  Justice S.K. Shah on 7.6.2004 due to numerous applications preferred by  the respondent no.1 for inspection of documents pertaining to  Miscellaneous Application No.1 of 2004 but the learned Single Judge  declined to pass orders on this praecipe.  It is, however, an admitted  matter that even before that the respondent no.1 had already carried out

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the inspection of the Miscellaneous Application No.1 of 2004.   5.      It was on this background that the Chamber Summon was taken out  by the respondent no.1 seeking the certified copy of Miscellaneous  Application No.1 of 2004 in Testamentary Suit No.17 of 2006 and also for  a direction to furnish to the respondent no.1 the transcript of the two audio  cassettes in respect of tape recorded conversation held on Saturday,  February 7, 2004 between Ila Pandya, the appellant herein and  Ms.Fereshte Sethna, the respondent no.2 herein.   6.      In her application, the respondent no.1 submitted that she had  required the aforementioned documents for the purposes of producing in  court particularly in this Court where the Special Leave Petition filed  against the order passed by the High Court in Testamentary Suit No.17 of  1996 was pending.  Needless to mention that by this time the  Testamentary Suit No.17 of 1996 was already disposed of and the Special  Leave Petition filed by the respondent no.1 was pending in this Court.  We  may state at this juncture that in the said Special Leave Petition leave was  granted and the Civil Appeal arising out of the said SLP being Civil Appeal  No.2455 of 2005 was disposed of by this Court dismissing the same by its  judgment dated 17.5.2007.   7.      The learned Single Judge before whom the Chamber Summons was  moved rejected the same taking a view that Miscellaneous Application  No.1 of 2004 was between the Advocate Ms.Fereshte Shethna and her  client Smt.Ila Pandya and the respondent no.1 himself was not even party  to the same and as such she was totally unconcerned with the  Miscellaneous Application No.1 of 2004.  The learned Single Judge also  found that even earlier similar request made by the respondent no.1 herein  was rejected and as such it was not necessary to accept her request for  the supply of copies. 8.      An appeal was filed before the Division Bench by the respondent  no.1.  The appeal was, however, partly allowed, in that the Division Bench  allowed her to have a copy of the Miscellaneous Application No.1 of 2004  while it declined her request in respect of the transcript of the tape- recorded conversation in the audio cassettes.  The Division Bench took the  view that the said Miscellaneous Application was a part of record of the  court in the Testamentary Suit where the respondent no.1 was a party.   The Court, therefore, observed that when  a party to the suit takes  inspection and applies for a certified copy of the record, it is a duty cast  under Section 76 of the Evidence Act on the court officer to make available  the certified copies.  According to the Division Bench this was entirely a  matter between the court and the applicant.  The Division Bench did note  that the earlier application for certified copy was rejected but further took  the view that the learned Single Judge had not rejected the second  application on that ground alone but had also considered the merits of the  case.  According to the Division Bench the respondent no.2 (appellant  before the Division Bench) had demonstrated her interest in the  proceedings since her caveat was accepted and the court on that basis  had converted the proceedings in a regular suit.  It was also noted that  even she had instituted the proceedings for administration of the estate of  deceased Vipin Pandya.  The court, therefore, took the view that the  litigation was with regard to entitlement of the respondent  no.1 on one  side and the appellant on the other.   9.      It is the abovesaid judgment which has been challenged by way of  present appeal.  Shri R.F. Nariman, Senior Advocate urges before us that  the Division Bench was in error in ordering the copy of the Miscellaneous  Application No.1 of 2004 to be supplied to respondent no.1 particularly  when the respondent no.1 had surreptitiously obtained the inspection of  the application even without notice to the present appellant or respondent  no.2.  Learned counsel further submits that in view of the fact that Title Suit  No.17 of 1996 has already been, admittedly, disposed of under such  circumstance that there will be no question of the copy of the  Miscellaneous Application made in that suit being supplied to the  respondent no.1.  It is also pointed out by the learned counsel that the very  idea of obtaining copy of the Miscellaneous Application was only to harass  the applicant which was clear from her application for the certified copy.  It  is also pointed out that there was no question of supplying the copy now

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more particularly because even the appeal against the judgment in Title  Suit No.17 of 1996 is dismissed by this Court by a detailed judgment.  It is  pointed out by the learned counsel further that the unfair advantage would  be conferred on the respondent no.1 and she would misuse the copy for  harassing the appellant herein. 10.     As against this the respondent no.1 who appeared in person  vehemently urged that she was being harassed and that she had every  right to obtain the copies of the Miscellaneous Application No.1 of 2004.   During her marathon arguments she went on to the extent of attributing  motives to the Advocates of the other side.  She also gave the whole  history of the litigation which had reached upto this Court earlier.  In her  written submissions she mainly complains against the judgment of this  Court passed in Civil Appeal No.2455 of 2005.  The whole arguments of  the respondent were directed against the said judgment. 11.     On this backdrop it is to be seen as to whether the judgment passed  by the Division Bench can be sustained. 12.     We must point out the relevant Rules of The Bombay High Court  (Original Side) Rules, 1980.  Chapter XIX deals with searches and certified  copies.  Rule 267 is for search and certified copies of the documents to a  party to a suit or matter.  The Rule runs as under: "267.   Search and certified copies of documents to a party  to suit or matter -  The Prothonotary and Senior Master shall,  on the application of any party to a suit or matter, allow search  or grant certified copies of all papers and proceedings in suit  or matter, on payment of the prescribed fees and charges.   When the party applies for a certified copy of a document on  record, the Prothonotary and Senior Master may, in his  discretion grant such copy."

Rule 268 deals with search and certified copies of the documents to a  person not a party to suit or matter.  The Rule reads as under: "Search and certified copies of documents to a person not  a party to suit or matter \026 The Prothonotary and Senior  Master may, on the application of a person not a party to a suit  or matter, on sufficient cause being shown, allow search or  grant certified copies of such papers and proceedings in the  suit or matter as the Prothonotary and Senior Master may  think fit, on payment of the prescribed fee and charges.  When  such person applies for a certified copy of a part of document  on record, the Prothonotary and Senior Master may, in his  discretion, grant such copy."

Reading the above two Rules together, it appears that a clear distinction is  made between the parties to the suit or matter and persons who are not  parties to the suit or matter.  Again the Rules clearly differentiate between  a suit and the matter.  While there is a clear cut right in favour of the party  to the suit to get the search and certified copies, there is a discretion in  Prothonotary and Senior Master whether to grant or not such search  and/or certified copy to a person who is not a party to the suit or matter.   13.     The Division Bench has held and in our opinion rightly, that the  respondent no.1 though caveator in the beginning had become a party to  the suit and was as such interested in the matter.  It cannot be disputed  that the Miscellaneous Application No.1 of 2004 was filed by the  respondent no.2 Fereshte Sethna against the appellant herein praying  therein for the action to be instituted against the appellant for perjury.  The  evidence by the appellant was given in the suit itself and, therefore, the  respondent no.1 who was a contesting party against the appellant, was  certainly interested person since the allegations of perjury were made  against her adversary, the appellant herein.  When the respondent no.1  sought for the certified copies, it was not necessary to decide the merits or  the demerits of the Miscellaneous Application No.1 of 2004.  If she had  shown as to how she was interested in the Miscellaneous Application and  if such interest was tangible, then even if she was not a party in the strict  sense to the Miscellaneous Application No.1 of 2004, the Prothonotary and  Senior Master could have, in his discretion, granted the certified copies of

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the Miscellaneous Application No.1 of 2004.  Though a view was taken by  the learned Single Judge that she was not at all interested and she could  not be interested, the Division Bench has shown as to how she would be  interested in the Miscellaneous Application No.1 of 2004.  Therefore, even  if it is held that she was not a party to the matter, i.e., Miscellaneous  Application No.1 of 2004, since she was a party to the suit out of which the  Miscellaneous Application No.1 of 2004 emanated and as such the same  could be treated as record of that suit, the Division Bench, in our opinion,  was right in taking the view that she was entitled to the certified copies. 14.     Shri Nariman, learned Senior Counsel, however, suggested that the  only idea of having those copies was to harass and/or to misuse those  copies against the appellant and it was only for that reason that the  appellant was opposing the grant of certified copies of the Miscellaneous  Application No.1 of 2004 to the respondent no.1.  We do not think that  there is any possibility of misuse.  It has not been shown as to in what  manner the respondent no.1 would be able to misuse the said documents.   Shri Nariman, however, expressed his apprehension that the respondent  no.1 would insist in joining the proceedings which were to follow the  Miscellaneous Application No.1 of 2004.  He, therefore, expressed that if  the respondent is granted the certified copies, she would jump into the fray  in Miscellaneous Application No.1 of 2004.  The Division Bench has taken  care of that matter.  In paragraph 9 of its order, the Division Bench has  expressed and in our opinion, very rightly that by mere grant of certified  copies, it cannot be construed that respondent no.1 has a right to  participate in the perjury application.  The Division Bench has already  directed that the said application should be heard along with the main suit.   The Division Bench has also very rightly expressed that ultimately it would  be for the learned Judge to decide the issue as to whether respondent  no.1 can join the proceedings.  That question had been left open.  Again  the Division Bench has clarified that the issue regarding the evidentiary  value of papers and documents in the perjury proceedings was kept to be  agitated by both sides.  At this juncture, however, the main suit itself  stands decided and the parties before us did not point out anything about  Miscellaneous Application No.1 of 2004 nor was it pointed out as to  whether it was still pending or not.  But even if it is presumed that it is still  pending, we make it clear that mere grant of certified copies in favour of  the respondent no.1 itself would not entitle her to take part in the  proceedings and confirm the action of the Division Bench of keeping that  question open.  As far as the misuse is concerned, we only have to  observe that in case of its misuse, the court below would be fully free to  deal with such complaint if made to it. 15.     Since the respondent no.1 has not challenged the findings and the  order regarding the audio cassettes, it is not necessary for us to consider  that aspect.   16.     Lastly we must note that in her marathon arguments, the respondent  no.1 spent every ounce of her energy in pointing out to us that as to how  the judgment of this Court in Civil Appeal No.2455 of 2005 was wrong and  how she was wronged against.  In support of her contentions she has  relied upon the following decisions of this Court: i)      Maganlal Chhaganlal (P) Ltd.  V. Municipal Corporation of  Greater Bombay & Others [(1974) 2 SCC 402]; ii)     Msr. Maneka Gandhi v. Union of India & Anr. [(1978) 1  SCC 248]; iii)    Bishnu Deo Shaw v. State of West Bengal [(1979) 3 SCC  714]; iv)     D.P. Chahda v. Triyugi Narain Mishra & Others [AIR 2001  SC 457]; v)      Harish Chandra Tiwari v. Baiju [AIR 2002 SC 548]; vi)     Shri Umed v. Raj Singh & Ors [(1975) 1 SCC 76]; vii)    Dhananjay Sharma v. State of Haryana [AIR 1995 SC  1795]; viii)   Ashwani Kumar Sharma v. Yaduvansh Singh & Ors. [AIR  1998 SC 337]. 17.     We have carefully seen all these cases.  The cases at Serial Nos.  (iv), (v) and (vii) pertain to Advocates misconduct.  That is not the subject

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of the litigation.  We cannot accept any contention raised by the  respondent against the judgment of this Court in Civil Appeal No. 2455 of  2005 which judgment is by a Coordinate Bench.  We  must at this juncture  point out again even at the cost of repetition that the said judgment  authored by Bedi, J. cannot be and will not be reviewed by us particularly  in the present proceedings. At any rate, none of the judgments mentioned  above are apposite to the present controversy which we have dealt with in  the earlier paragraphs of this judgment.  We, therefore, reject the  contention by the respondent that we should look into the judgment in Civil  Appeal No. 2455 of 2005 and review the same.  18.    In the above backdrop we do not see any merits in the appeal and  dismiss the same with costs quantified at Rs.10,000/-.