This is an application under O. 11 R. 14 of the Code of Civil Procedure by the plaintiff calling upon the defendant to produce certain documents. The plaintiff instituted a suit against the State of Jammu and Kashmir for a sum of Rs. 50,000/- being damages for breach of contract. Before the suit was taken up for trial, the plaintiff made the present application asking for production of documents.

One of the documents asked for is a file containing correspondence from 8th Sawan 2010 (1953 A. D.) to 22nd Sept. 1956 between the Chief Conservator of Forests and the Conservator of Forests Kashmir Circle relating to the suit contract. It is contended on behalf of the defendant State that this file cannot be produced because it contains only communications made to public officers in official confidence, the disclosure of which would be detrimental to the public interests. An affidavit to this effect has been filed by the Chief Conservator of Forests.

(2) The plaintiffs learned counsel has disputed the right of the defendant to claim any privilege in respect of these documents. Mr. Sunder Lal for the plaintiff has vigorously contended that privilege can-not be claimed by the State in respect of documents relating to commercial or contractual activities: More especially so, when the State itself is a party defendant in the action in which the privilege is claimed. He sought to derive support for this proposition from the decision of Kilam, J. in Tirath Ram v. Government of Jammu and Kashmir, AIR 1954 J. and K. 11.

On a close reading of this decision it appears to me that no such proposition was intended to be laid down in it. No doubt, certain observations in that judgment appear to lend support to the contention of Mr. Sunder Lal, but those observations must be taken as laying down the law: they are perhaps a little too broadly expressed. The authorities on which Kilam, J. has relied show that lie could not have intended to lay down so broad a proposition. If he did so intend, I should with the utmost respect disagree with him.

The two important decisions on which reliance was placed in AIR 1954 J. and K. 11 (Supra) are H. G. Robinson v. State of South Australia, AIR 1931 PC 254 and Governor General v. Peer Mohd. AIR 1950 E. P. 228 (FB). In neither of them was it laid down that when the State is a party defendant in an action it cannot claim privilege under S. 123 or 124 of the Evidence Act in respect of documents relating to commercial or contractual activities. There is nothing in the Evidence Act either to support such a dictum. In fact the Privy Council in AIR 1931 PC 254 (Supra) pointed out at page 258:

"It must not be assumed from these observations of the Lord Justice that documents relating to the trading commercial or contractual activities of a State can never be claimed to be -protected under this head of privilege. It is conceivable that even in connexion with the production of such documents there may be "some plain overruling principle of public interest concerned which cannot be disregarded." But the cases in which this is so must, in view of the sole object of the privilege, and especially in time of peace, be rare indeed, and the distinction drawn by the Lord Justice remains instructive and illuminating. In view of the increasing extension of State activities into the spheres of trading business and commerce and of the claim of privilege in relation to liabilities arising there from now apparently freely put forward, his observations Stand on record to remind the courts, that while they must duly safeguard genuine public interests must see to it that the scope of the admitted privilege is not in such litigation extended. Particularly must it be remembered in this connection that the fact that production of the documents might in the particular litigation prejudice the Crowns own case or assist that of the other side is no such plain overriding p

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