B.P. Das, J.
1. This revision application is directed against the order dated 4.5.2002 passed by the Civil Judge (Senior Division), Aska, in T.S. No. 65 of 1997 rejecting the petition filed under Order 13, Rule 10 of the Code of Civil Procedure (in short 'CPC') by defendant No. 1, the petitioner herein, with a prayer to call for certain documents from the office of the Asst. Commissioner Income Tax, Berhampur, as well as the Sub-Registrar, Kabisuryanagar.
2. The short facts so narrated in the revision application tend to reveal that O.P. No. 1 as plaintiff has filed the aforesaid T.S. No. 65 of 1997 for partition of the suit lands making the present petitioner and O.P. No. 2 as defendants. During the course of hearing of the suit, defendant No. 1 filed a petition under Order 13, Rule 10, CPC contending that the plaintiff-O.P. No. 1 and his father had separately submitted income tax returns and also filed statements before the income tax authority disclosing therein partition of their ancestral properties in the year 1955 in terms of the decree passed in T.S. No. 126 of 1955. As the present petitioner-defendantNo. 1 has taken a plea that the suit properties had already been partitioned and are no more available for partition in the present suit and as the plaintiff has denied the earlier partition, defendant No. 1 in order to prove the same prayed to call for the income tax returns as well as the statements filed by the plaintiff before the income tax authority, being materials documents, and are available with the Asst. Commissioner of Income Tax, Berhampur, since the application for certified copies of the aforesaid documents was rejected. The petitioner in the aforesaid application also prayed to call for certain other documents mentioned at serial Nos. 11 to 27 from the office of the Sub-Registrar, Kabisuryanagar. The learned Civil Judge (Senior Division) has by the impugned order rejected the prayer of the petitioner in view of the bar of Section 123 of the Evidence Act holding that the court is not competent to call for the documents from the Income Tax Office in view of the restrictions contained in the Income Tax Act as well as Sections 123 and 124 of the Evidence Act. So far as the documents sought to be summoned from the office of the Sub-Registrar are concerned, the trial court rejected the prayer of the petitioner holding that it is open to the petitioner to get certified copies of those documents and file the same before the Court. Against the aforesaid order, defendant No. 1 has filed the present revision application.
3. Shri Ashok Mukhrjee, learned Senior Counsel, appearing for the petitioner, submits that the Civil Court has fallen into error by holding that the income tax records of the opposite party so sought to be called for from the custody of the Asst. Commissioner of Income Tax are privileged documents, and cannot be summoned in view of the restriction imposed by Section 123 of the Evidence Act. On the contrary, Shri Rath for the opposite party submits that those documents cannot be summoned in view of the restriction imposed under the provisions of Sections 123 and 124 of the Evidence Act as well as Section 138 of the Income Tax Act.
Section 138 of the Income Tax Act deals with 'Disclosure of information respecting assesses'. Learned counsel for the petitioner specifically draws my attention to the provision in Section 138(1)(b) of the I. T. Act, which is re-produced below:
'Where a person makes an application to the Chief Commissioner or Commissioner in the prescribed form for any information relating to any assessee, received or obtained by any income tax authority in the performance of his function under this Act the Chief Commissioner or Commissioner may, if he is satisfied that it is in the public interest so to do, furnish or cause to be furnished the information asked for and his decision in this behalf shall be final and shall not be called in question in any court of law.'
From the above provision it is crystal clear that it only enables the Commissioner to give copies of certain documents provided the grant of such copies is in public interest. It does not apply where a party wants the documents for private purpose. It does not prohibit income tax authorities from producing assessee's documents before the Civil Court when directed by the Civil Court to do so.
4. It is profitable to mention here that with the repeal of the 1922 I.T. Act and omission of Section 137 of the 1961 I. T. Act, the fetters on the exercise of that jurisdiction were removed with the result that the exercise of the jurisdiction to call for the production of documents relevant to the case pending before the court, even from the Income Tax Authorities, revived.
5. The dispute raised in the present proceeding is no more res integra. The Apex Court in a decision reported in (1992) 2 SCC 13; Dagiram Pindilall v. Trilok Chand Jain, held thus :
'......under the Code of Civil Procedure, the Courts of law have always possessed the jurisdiction to call for the production of documents relevant to the case before the Court from anybody having custody of those documents. Section 54 of the 1922 Act and after its repeal Section 137 of the 1961 Act had only placed fetters on the exercise of that jurisdiction, in respect of the specified documents, by the Courts notwithstanding anything contained in any other law for the time being in force. The exercise of the jurisdiction to seek production of documents had, thus, only been put under a cloud insofar as the record of assessment is concerned. With the repeal of the 1922 Act and omission of Section 137 of the 1961 Act, the fetters on the exercise of that jurisdiction were removed with the result that the exercise of the jurisdiction to call for the production of documents relevant to the case pending before the Court, even from the income tax authorities, revived. Neither Section 54 of the 1922 Act nor Section 137 of the 1961 Act had taken away for all times the jurisdiction of the Courts to call for the record from the income tax authorities. Those provisions, as already noticed, had, only put the exercise of that jurisdiction under a cloud and those fetters were conterminous with the life of Section 54 of the 1922 Act or Section 137 of the 1961 Act.'
It was further held in paragraph 18 thus :
'18. The finality which has been attached to the order of the Commissioner under Section 138(1)(b) of the Act is applicable only in cases where applicationis made to the Commissioner by a party or any other person for receiving documents or information. It has nothing to do with the powers of the Courts to summon the production of assessment record of an assessee, filed after April 1, 1964. The privilege as to secrecy, which the assessee had acquired under Section 54 of the 1922 Act remained unimpaired by the repeal of that Apt or even by the omission of Section 137 of the 1961 Act in respect of record filed prior to April 1, 1964 and relating to the assessments prior to that date. That privilege did not extend, after April 1, 1964, to record filed before the income tax authorities, for the assessment years 1964-65 onwards. Section 6 of the General Clauses Act as well as Section 138(1)(b) of the 1961 Act cannot extend the ban on the exercise of the jurisdiction by the Courts to summon the production of documents from the income tax authorities after April 1, 1964 relating to assessment year 1964-65 in respect of the record filed after April 1, 1964.'
Dealing with the question of privilege, the Court in the aforesaid decision observed as follows ;
'.......When a Court of law, in any matter pending before it desires the production of record relating to any assessment after applying its judicial mind and hearing the parties and on being prima facie satisfied that the record required to be summoned is relevant for the decision of the controversy before it - it passes a judicial order summoning the production of that record from the party having possession of the record. The Commissioner of Income Tax cannot, therefore, refuse to send the record, as he certainly is not authorised to set at naught a judicial order of a Court of law. He must obey the order of the Court by sending the record to the Court concerned. Indeed, it is open to the Commissioner of Income Tax to claim privilege, in respect of any document or record so summoned by a Court of law, under Sections 123 and 124 of the Indian Evidence Act, 1872 and even then it is for the Court to decide whether or not to grant that privilege. Had the legislature intended that no document from the assessment record of an assessee should be produced in a Court on being summoned by it, without the approval of the Commissioner of Income Tax, it would have said so in Section 138 of the Act itself. The repeal of Section 137 of the Act clearly discloses the legislative intent that it was felt by thelegislature that it was no more necessary to keep the records of assessment by the income tax department relating to an assessee as confidential from the Courts and the bar with regard to the production of any part of the record was removed insofar as the Courts are concerned......'
In the case of S.P. Gupta v. President of India; AIR 1982 SC 149, the Apex Court observed that:
'.......The basic question to which the Court would therefore have to address itself for the purpose of deciding the validity of the objection would be whether the document relates to affairs of State or in other words, it is of such a character that its disclosure would be against the interest of the State or the public service and if so, whether the public interest in its non-disclosure is so strong that it must prevail over the public interest in the administration of justice and on that account, it should not be allowed to be disclosed. The final decision in regard to the validity of an objection against disclosure raised under Section 123 would always be with the Court by reason of Section 162.'
From the above decisions, it is clear that it is open to the Commissioner of Income Tax to claim privilege in respect of a document summoned by the Court and it is for the Court to decide whether the privilege can be granted or refused.
6. In the case at hand, the income tax authorities have not claimed privilege. It is the Court on its own has come to the finding that the documents called for by one of the parties cannot be summoned from the income tax authorities because of the restrictions imposed under Sections 123 and 124 of the Income Tax Act. In view of the judicial pronouncements on the subject and discussions made above, the trial Court has fallen into error by terming the documents sought to be called for as privileged documents, the order passed by the trial Court is totally wrong and is accordingly set aside. However, before summoning the documents in question the trial Court should at the first satisfy itself that the documents are required for the purpose of determining the issue raised in the suit.
7. So far as the order directing the petitioner to obtain the certified copies of the documents available in the Sub-Registrar's office is concerned, the same needs no interference.
8. The civil revision is accordingly allowed in part. No cost.