J.B. Mehta, J.
1. These two petitions involve a common question of law as to whether a Civil Court has jurisdiction to order a party to produce certified copies of the account-books which were lying in the Sales Tax Department and so I am disposing both of them by this common judgment.
2. In both these matters the applicant is the same applicant-firm who was the defendant in the two suits which were filed by the opponents in these two matters. The two plaintiffs had filed certain suits against the present applicant-firm on the basis of certain Vahies alleged to have been given to the plaintiffs on behalf of the applicant-firm by the manager of that firm who was related to these two plaintiffs-opponents. It was the case of the applicant-firm that the accounts of the firm had been manipulated for the benefit of his relatives by the said manager, who was thereafter dismissed from service of the firm. During the pendency of the said two suits, the applicant-firm was required to discover on oath the documents which included the books of account in question. In both these cases it is not disputed between the parties that the applicant-firm had in its affidavit stated that the account books for the years, Smt. 2007 to 2009 were lost, while the books from Smt. 2014 to 2017 were produced before the Sales Tax Officer and were not in possession of the applicant-firm. The accounts for the years Smt. 2010 to 2013 were produced in the Court. Thereafter an application was given to the Civil Court on behalf of the plaintiffs to require the applicant-firm to produce certified copies of the accounts for the Smt. years 2014 to 2017. The Civil Court had ordered the applicant-firm to produce certified copies of the said account books which were lying in the Sales Tax Department as they were, relevant to meet the case put up by the applicant-firm and were relevant to show how the accounts pertaining to the plaintiffs' claim had been kept' in these books. The applicant-firm has, therefore, filed the present two Civil Revision Applications challenging the said order as being without jurisdiction.
3. Mr. Chhaya and Mr. Shah vehemently argued that this order can be supported under Section 151 of the Civil Prooedure Code which provides that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for ends of justice or to prevent abuse of the process of the Court. Mr. Chhaya stated that the Sales Tax Officer could not be required to produce the account books lying before the Sales Tax Officer in view of the bar enacted by Section 64 of the Bombay Sales Tax Act, hereinafter referred to as ' the Act'. Section 64(1) provides that all particulars contained in any statement made, return furnished or accounts or documents produced in accordance with the Act...in the course of proceedings under the Act shall, subject to the exceptions in Sub-clause (3), be treated as confidential; and notwithstanding anything contained in the Indian Evidence Act, 1872, no Court shall, save, as aforesaid, be entitled to require any servant, of the Government to produce before it any such statement, return, account, document or record or any part thereof, or to give evidence before it in respect thereof. Exceptions in Sub-clause (3) are not attracted and are not relevant for purpose. Mr. Chhaya argued that this prohibition extended only to the Sales Tax Officers or any servant of the Government being required to produce the account books as they were bound to treat the same as confidential, but it was open to the parties to waive the privilege and to produce those account books or even the certified copies thereof. The order made by the Court was, therefore, for securing the ends of justice as otherwise this valuable evidence would be shut out from the record of the Court and on which rested the entire case of the present plaintiffs. Mr. Chhaya in this connection relied upon the decision of the Supreme Court in Mcmohar Lal Chopra v. Rai Bahadur Raha Sheth Hiralal : AIR1962SC527 where it was held by the Supreme Court that in the face of Section 151 of the Code which itself stated that nothing in the Code shall be deemed' to limit or otherwise affect inherent powers of the Court, it was not possible to hold that the provisions of the Code controlled inherent powers by limiting or otherwise affecting it. It was, therefore, held that the provisions of Section 94 and 0. 39 of the C. P. C. were not exhaustive as to the circumstances in which temporary injunction could be issued and the Court would have inherent jurisdiction to issue temporary injunction even in the circumstances which were not covered by the provisions of 0. 39 of the Code, if the Court was of the opinion that the interests of justice required the issue of such an interim injunction. It was, however, clarified at page 333 that the powers under Section 151 are not to be exercised when their exercise might be in conflict with what had been expressly provided by the Code or against the intentions of the Legislature. That restriction for practical purpose, on the exercise of those powers was not because those powers were controlled by the provisions of the Code but because it should be presumed that the procedure specifically provided by the Legislature for orders in certain circumstances was dictated by the interests of justice. One further restriction was also mentioned as laid down in Padam Sen v. The State of Vttar Pradesh 0065/1960 : 1961CriLJ322 In that case the question for determination was whether a Munsif had the power to appoint a commissioner to seize account books in exercise of the inherent powers under Section 151. It was held at page 219 that the inherent powers which were saved by Section 151 were with respect to the procedure to be followed by a Court in deciding the cause before it. Those powers were not powers over the substantive rights of litigants. The specific powers had to be conferred on the Court for passing such orders affecting such rights and such powers could not come within the scope of inherent powers of the Court in matters of procedure, which powers had their source in the Court possessing all the essential powers to regulate its practice and procedure. It is, therefore, clearly settled that inherent powers could not be exercised so as to affect substantive rights or in cases where the Code had made exhaustive provision as regards certain matters and, therefore, there was a clear intention to exclude exercise of any such inherent power.
4. In the present-ease under Order 11 Rule 14, the Court is empowered to order production by any parties thereto upon path of all documents in his possession relating to any matter in question in such a suit. Even under Section 165 of the Evidence Act a Judge can order production of any document from any witness or from any party. In the present case, the original account books were not in the possession or power of the applicant-firm. A witness summons which would have normally been issued to the authority before whom these account books were produced by the applicant-firm could not be issued in the present case on account of the fact that Section 64 of the Act created a statutory bar against any servant of the Government from producing such account books which were produced in accordance with the Act and which were to be treated by the concerned Sales Tax Officer as confidential. The present order was passed with a view to get over the difficulty which existed because of this statutory bar and not because there was insufficient provision in the Code.
5. Mr. Chhaya had argued that in the interests of justice the Court should not have found itself helpless so long as there was such omnibus provision made in the Code under Section 151 for passing of all the. necessary orders which would secure the ends of justice. A very important restriction on these powers has been, however, laid down that these being procedural powers, the orders passed in exercise of such powers could not affect substantive rights. In Padatn Sen v. The State of Uttar Pradesh (Supra), the Supreme Court had held that a Munsif had no inherent powers to appoint a commissioner to seize account books and produce them in the Court. At page 219 it was pointed out by the Supreme Court that a party had full rights over its books of account and the Court had no inherent power forcibly to seize its property. If it did so, it invaded the private rights of the party. Specific procedure was laid down in the Code for getting the relevant documents or books in Court for the purposes of using them as evidence. A party was free to produce such documents or books in support of its case as be relevant. A party could ask the help of the Court to have produced in Court by the other party such documents as it would like to be used in evidence and were admitted by that party to be in its possession. If a party did not produce the documents it was lawfully called upon to produce, the Court had the power to penalise it, in accordance with the provisions of the Code. The Court had the further power to draw any presumption against such a party who did not produce the relevant document in its possession, especially after it had been summoned from it. Even in such cases where the Court summoned a document from a party, the Court had not been given any power to get hold of the document forcibly from the possession of the defaulting party. In that case it was held that it was no business of the Court to collect evidence for a party. In the present case what was in substance demanded by the plaintiff was to require from the applicant firm that it should waive its privilege of its account books being treated as confidential documents by the Sales Tax Officer and to apply for a certified copy which did not exist at the time of the order and further to get the same at its cost and produce the same in the Court. The order which the Court had passed was thus clearly affecting substantive rights of the applicants-firm inasmuch as it was compelled by the Court's order to waive the privilege and to apply for a certified copy of the document and bring that copy in existence and to produce the same even though the firm was never in possession of such a certified copy at the date when the order was passed against it. I, therefore, agree with Mr. Sheth in his contention that such an order was clearly beyond the scope of the powers of a Civil Court in exercise of its jurisdiction under Section 151 of the Code. Mr. Sheth also relied upon an exact decision of Mockett J. in C. Velavudham v. S.C. Subramanid A.I.R. 1941 Mad. 709. In that case the lower Court had passed an order directing a party to apply for a certified copy of his income-tax return and profit and loss statements and to produce them at the cost of the opposite party. At page 709 it was observed that Order 11 Rule 14 dealt with existing documents and documents which at the time of the application were in the possession or power of the person against whom the order was sought to be made. A party could not be called upon not only to produce but to have brought into existence a copy of a document, and especially of a document which was a highly confidential document protected by Section 54 of the Income-tax Act, J. 1 922, which corresponds to Section 137 of the Indian Income-tax Act, 1966 Those sections are in pari materia the same as Section 64 of the Act. The learned Judge in that case also observed that as those certified copies were not in existence they could not be said to be in power of the defendant and further that the Court was prohibited from ordering the defendant to produce his original income-tax returns equally as it could not order the Income-tax Officers themselves to produce them. It was held that to direct a litigant to produce certified copy of such a confidential document would render Section 54 of the Income-tax Act, 1922, a dead letter. Such an order under Section 151 for certified copy of. such a highly confidential document was held to be contrary to the authority, especially in cases where a statute prohibited production of a document as in such a case inconvenience to the litigant was irrelevant. Mr. Chhaya tried to argue that in the present case, however, the party had already waived privilege and had applied for the certified copy. This argument would not help Mr. Chhaya for the simple reason that consent of a party could never confer jurisdiction on a Court if the Court had no jurisdiction whatsoever to pass such an order under Section 151. Merely because the defendant tried to comply with such an order by applying for certified copies, the act of the defendant could not confer any jurisdiction on the Court to pass such on order.
5.1 Mr. Chhaya finally argued that in any case the error amounts to an illegality in the exercise of the jurisdiction by the trial Court which could not be corrected under Section 115 in exercise of revisional jurisdiction. The error in the present case is not one of mere procedural irregularity but relates to the exercise of jurisdiction itself. If the Court passed an order against a party which was not supported by any provision of the Code, it was arbitrary exercise of the jurisdiction by the Court and the error was clearly one which went to the root and was a jurisdictional error.
6. In the result the order challenged in both these Civil Revision Applications being clearly without jurisdiction must be quashed. These revisions petitions are, therefore, allowed and the order of the lower Court in both these cases directing the defendant firm to produce certified copies of its accounts is set aside. Rule accordingly made absolute with costs.