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2008 Supreme(SC) 750
S.B. Sinha & V.S. Sirpurkar
Ila Vipin Pandya - PETITIONER
Versus
Smita Ambalal Patel & Anr - RESPONDENT
Appeal (civil) 5735 of 2005
CIVIL APPEAL NO.5735 OF 2005
Decided On: 01/05/2008
Importent Point:
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.
Headnote:The Bombay High Court (Original Side) Rules, 1980- Rule 267-Search and certified copies of documents to a party to suit or matter -Entitlement to- Testamentary Petition by appellant for issuance of Letters of Administration in respect of estate of her late husband- In said suit respondent.1 had filed a caveat- Eventually the Testamentary Petition came to be converted into Testamentary Suit- Appellant sought for discharge of her counsel in the case -In these proceedings respondent.2 filed Miscellaneous Application No.1 of 2004 alleging therein that appellant had committed perjury and that an action should be taken against her- This was probably done as some allegations were made by appellant against her erstwhile counsel, respondent.2- Respondent 2 in said application had also tendered two audio cassettes in support of her Miscellaneous Application No.1 of 2004 -Respondent No.1 had taken out Chamber Summons in Testamentary Suit No.17 of 1996-By that summons she sought for certified copies of Miscellaneous Application No.1 of 2004 in Testamentary Suit as also transcript of tape-recorded conversation between appellant and respondent.2 -High Court passed an order directing that copies of the papers and proceedings in Miscellaneous Application No.1 of 2004 should be furnished only to appellant and respondent.2- Objection thereagainst-Rejected by High Court-Even a praecipe was moved by Prothonotary & Senior Master -However Single Judge declined to pass orders on this praecipe-Challenge thereagainst- Respondent.1 though caveator in beginning had become a party to suit and was as such interested in matter- No dispute that Miscellaneous Application No.1 of 2004 was filed by respondent.2 against appellant praying for action to be instituted against appellant for perjury-The evidence by appellant was given in suit itself and, therefore, respondent.1 who was a contesting party against appellant, was certainly interested person since allegations of perjury were made against her adversary, appellant -When respondent 1 sought for certified copies, it was not necessary to decide merits or demerits of 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, Prothonotary and Senior Master could have, in his discretion, granted certified copies of the Miscellaneous Application No.1 of 2004-Appeal dismissed(Paras12to18)
Facts of the Case-Respondent herein in the instant case sought for certified copies of Miscellaneous Application No.1 of 2004 in Testamentary Suit as also transcript of tape-recorded conversation between appellant and respondent.2 .High Court passed an order directing that copies of the papers and proceedings in Miscellaneous Application No.1 of 2004 should be furnished only to appellant and respondent.2.Objection thereagainst was rejected by High Court.Even a praecipe was moved by Prothonotary & Senior Master .However Single Judge declined to pass orders on this praecipe.
2.Present appeal has been filed against order of Division Bench allowing respondent1 to have a copy of Miscellaneous Application No.1 of 2004 while it declined her request in respect of transcript of the tape-recorded conversation in audio cassette.
Findings of the Court-Respondent.1 though caveator in beginning had become a party to suit and was as such interested in matter. No dispute that Miscellaneous Application No.1 of 2004 was filed by respondent.2 against appellant praying for action to be instituted against appellant for perjury. The evidence by appellant was given in suit itself and, therefore, respondent.1 who was a contesting party against appellant, was certainly interested person since allegations of perjury were made against her adversary, appellant .When respondent 1 sought for certified copies, it was not necessary to decide merits or demerits of 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, Prothonotary and Senior Master could have, in his discretion, granted certified copies of the Miscellaneous Application No.1 of 2004.
Result-Appeal dismissed
JUDGMENT:
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).
2. 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.
3. 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.
4. 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.
5. 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 the inspection of the Miscellaneous Application No.1 of 2004.
6. 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.
7. 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
