The court has discretionary power to summon records under Order 13 Rule 10 CPC, even without a duly authenticated copy, if it deems necessary for the purposes of justice.

PRAKASH TATIA, J.

( 1 ) HEARD learned counsel for the parties. The plaintiff moved an application under Order 13 Rule 10 CPC and prayed that a partnership deed executed between the defendants dated 28-3-86 may be summoned from the Income Tax department, upon which the learned trial court allowed the application of the plaintiff-non-petitioner by order dated 30-3-2001, against which the petitioner has moved this revision petition.

( 2 ) LEARNED counsel for the petitioner submitted that the court has no jurisdiction to summon record of any other department except the court under Order 13 Rule 10 CPC. According to learned counsel for the petitioner the relevant provision for summoning of document from any other department except the court in Order 16 Rule 1 and Order 16 Rule 6 cpc, therefore, the impugned order under order 13 Rule 10 CPC is absolutely illegal and contrary to law. Learned counsel for the petitioner further vehemently submitted that even under Order 13 Rule 10 CPC the mandatory requirement of law is that the party, who is seeking relief for summoning of record or document is required to file duly authenticated copy of the document, which party wants to summon from the court. Therefore, here in this case, when the plaintiff failed to place on record the duly authenticated copy of the document in dispute the relief under Order 13 Rule 10 cpc cannot be granted.

( 3 ) LEARNED counsel for the petitioner further submitted that the plaintiff-non-petitioner has full opportunity to summon the document by filing list of witnesses under Order 16 Rule 1 CPC wherein the plaintiff submit a list of witnesses including the person to whom he want to produce with a request to summon the person to produce the document under order 16 Rule 1 CPC. Therefore, also the discretion should not have been exercised by the trial court in favour of the non-petitioner under Order 13 Rule 10 CPC. Learned counsel for the petitioner vehemently relied upon the judgment of the Division Bench of the karnataka High Court in the case of Papanna and others v. H. Dodde Gowda and others wherein according the learned counsel for the petitioner the mandatory requirement of production of certified or authenticated copy of the document sought to be produced has been recognised by the Division Bench of the karnataka High Court.

( 4 ) I perused the application filed by the non-petitioner - plaintiff and the photostat copy of the deed shown by the counsel for the non-petitioner. From a bare perusal of the Order 13 Rule 10 CPC, it is clear that sub-rule (1)rule 10 of Order 13 makes a provision for summoning the record from other court and this record can be summoned by the court by its own motion or upon the application of any of the party.

( 5 ) SUB-RULE (1) of Rule 10 of Order 13 cpc provides for procedures before summoning the record or other documents, which according to the learned counsel for the petitioner is mandatory and the relief can be granted only if duly authenticated copy of the record is placed on record of the court summoning the record. For this purpose I may quote sub-rule (2) of Rule 10 of Order 13, which is as under:-"every application made under this rule shall (unless the Court otherwise directs) be supported by an affidavit showing how the record is material to the suit in which the application is made, and that the applicant cannot without unreasonable delay or expense obtain a duly authenticated copy of the record or of such portion thereof as the applicant requires, or that the production of the original is necessary for the purposes of justice. " a bare perusal of sub-rule (2) of Rule 10 order 13 it is clear that word shall has been used just before the phrase, which are as under:-"shall (unless the Court otherwise directs ). "

( 6 ) THIS itself is sufficient indication of the fact that the legislature in its wisdom used the word shall but reduced its mandatory nature by using the word unless the court otherwise directs. Thi