031-NLR-NLR-V-17-AMERASEKARA-et-al-v.-PALANIAPPA-et-al.pdf
( 104 )
1913.
♦Present: Pereira J. and De Sampayo A.J.
AMEBASEKERA et al. v. PALANIAPPA et al.
v
109—D. C. Colombo, 36,399.
Document referred to in list added to plaint—Order for production—Civil
Procedure Code, ss. 61 and 104—Journal entries.
A document specified in the list of documents added to a plaintin terms of section 61 of the Civil Procedure Code is a documentto which '' reference is made in the plaint," and an order for theproduction for inspection by a party of such a document may beobtained by him under section 104.
Per Febbtoa J.—Among documents that a party is not ' boundto produce are those relating solely, to the case of the party himself;but when a document contains matter supporting the title or caseof the opposite party, or impeaching the claim of the party requiredto produce it,-it is not protected.
Observations by Pereira J. on how the journal entries in therecord of a case should be minuted: When a motion or applicationus filed, it is not sufficient that reference should be made to it in thejournal merely by means of such words as “ Vide motion (orapplication) -filed." The substance of. the motion or applicationshould be recorded so as -to convey a correct idea of its contents.
( 105 )
fjp HE facts are set out in the judgment.
A. 8t. V. Jayewardenei for appellants.
EUiott and Betnam, for respondents.
September 26, 1913. Pebbiba J.—
This is an appeal from an order of the District Judge on a motionby the defendants for a notice under seotion 104 of the CivilProcedure Code on the plaintiffs to produce a certain documentreferred to in the plaint. The parties appear ta have misappre-hended the scope' of section 104,. and the prooedings are quiteirregular. The section provides for an ex parte application for a.notice for the production of documents. The written applicationor memorandum of motion is not expressed with particular precision.If speaks not of a document to which " reference is made in theplaint, ” but of a document “ relied on by the plaintiffs, ” and it isnot stated in it whether the document is required for inspection bythe defendants or their proctor. However, the notice applied forappears to have been allowed, but the notice taken out was a noticeof an entirely different character. It was, in effect, a notice tosnow cause why a notice under section 104 should not issue. Thenotice taken out was duly served, and the< matter came up fordiscussion on July 14, 1913. As all the parties interested haveacquiesced in the proceedings, I shall say nothing more on thequestion of irregularity. Having heard counsel the DistrictJudge disallowed the defendants application, his chief reason beingthat the document in question had not been “ pleaded in the plaint,or any affidavit filed by the plaintiffs. " Section 104, however,speaks of documents to which “ reference is made in the pleadingsor affidavits ” of either party ; and the question in the presentinstance is whether the document in question, that is to say, theagreement dated September 15, 1911, is not a document to whichreference is made in the plaint. It appears in the list of documentsadded to the plaint, in terms of section.51 of the Civil ProcedureCode, as documents relied on by the plaintiffs. It has been arguedthat this list is not a part of the plaint, and that therefore thedocument cannot be said toxbe a document referred to in the plaint.
I .think it is clear that anything added to the plaint becomes partand parcel of the plaint itself, and that inasmuch as the documentin question appears in the list added to the plaint, it is, in fact, adocument referred to in the plaint. If, as will not I sure bedoubted, a party is entitled to a notice for the production forinspection of a document, disclosed in an affidavit filed under section102 of the Civil Procedure Code in response to a motion fordiscovery of documents, I fail to see why he should not be entitledto inspection of a document disclosed in the plaint. In a proceeding
1918.
Amerasdeera
v.
Palaniappa
Cur. adv. vult.
( 106 )
1918. for discovery, the necessity for an affidavit is to ensure a full dis-Pbrbtba J covery» Rod a notice for the production for inspection of a document—r- ' disclosed in the affidavit would be allowed, not because it is disclosedAnwnmk»a under the sanction of an oath, but because the document ig disclosedPdaniappa 88 8 document that the party making the affidavits* likely to relyon as evidence in the case. There is no reason therefore why thesame rule as to notice for production for inspection should not. apply,where the document is disclosed in the plaint as a document thatthe plaintiff relies on as evidence in support of his claim.
It is nob necessary that I should decide here whether the plaintiffsare entitled to object to produce the document referred to for inspec-tion by the other side, because that question does not, in fact, ariseon the present application. The present application is , one fornotice for production of the document for inspection. It will betime to consider the question under section 106, if under section. 105the plaintiffs object to the production of the document. But asthe District Judge has in his order expressed an opinion on thequestion, and there was some argument on it at the hearing of thisappeal, I shall say a few words on i.t without, however, committingmyself to any definite ruling.
In the English Procedure there are several methods of procuringinspection of documents. One of these is almost identical withthat set forth in section 104 of our Civil Procedure Code, and it hasbeen stated thus: “ Any party to a cause or matter may at any timegive notice in writing to any other party to produce for the former’s-inspection or that of his solicitor any documents referred to in thepleadings or affidavits of his opponent.'
Ampng documents .that a party is not bound to produce are those“ relating solely to the case of the party ,v; that is to say, documentslike muniments of title necessary to support one’s own title to any'property in claim in a case and serving no other purpose. . InCornb.e v. London Corporation, 1 a case in which the plaintiff movedfor inspection of a document disclosed by the defendant. KnightBruce V.C. observed : “ Where it is consistent with the answer that thedocument may form the plaintiff’s title or part of it, may containmatter supporting the plaintiff’s title or the plaintiff’s case, or maycontain matter impeaching the defence, then I appi'ehend the docu-ment is not protected, nor, I apprehend, is it protected if thecharacter ascribed to it by the defendant is not answered byhim with a reasonable and sufficient degree of positiveness anddistinctness. ” I need say no more on this point, except that this, *dictum was approved by the Court of Appeal in Attomey-Oeneralv. Emerson. 2'
I would set aside the order appealed from with costs, and allowthe defendant’s motion for a notice under section 104 of the CivilProcedure Code.
*10 R.B. D. 191.
11 Y. <9 C. Ch. Cos. 631.
Before parting with the record of .this case, I should like to observethat the journal entries as minuted are- most unsatisfactory. Bythemselves they give no conception whatever of r the proceedingsthat resulted in the order appealed from. It must he rememberedthat, under section 92 of the Civil Procedure Code, the journal isto be the “ principal record of the action,” and “ that every proceedingand orjler should be minuted.” When a motion or application isfiled, it is -not sufficient that reference should be made to it in thejournal merely by means of such words as ” Vide motion or applica-tion.” The substance of the motion or application should berecorded so as to convey a correct idea of its contents. The entriesin the journal should by themselves give sufficient’ information of” the events in the cause of the action.”
Be Sampayo A.J.—I agree.
1918,
Pereira J.
Ameraeekera
*»■
Palaniappa
Set aside.