Amerasekera Et Al V. Palaniappa Et Al.

Present: Pereira J. and De Sampayo A. J.

AMERASEKERA et al. v. PALANIAPPA et al.

109-D. C. Colombo, 36, 399.

Document referred to in list added to plaint-Order for production-Civil Procedure Code, ss. 51 and 104-Journal entries.

A document specified in the list of documents added to a plaint in terms of section 51 of the Civil Procedure Code is a document to which " reference is made in the plaint, " and an order |or the production for inspection by a party of such a document may be obtained by him under section 104.

Per Pereira J. -Among documents that a party is not bound to produce are those relating solely to the case of the party himself; but when a document contains matter supporting the title or case of the opposite party, or impeaching the claim of the party required to produce it, it is not protected.

Observations by Pereira J. on bow the journal entries in the record of a case should be minuted: When a motion or application is filed, it is not sufficient that reference should be made to it in the journal merely by means of such words as " Vide motion (or application) filed. " The substance of the motion or application should be recorded so as to convey a correct idea of its contents.

THE facts are set out in the judgment.

A. St. V. Jayewardene, for appellants.

Elliott and Ratnam, for respondents.

Cur. adv. vult.

September 26, 1913. Pereira J. -

This is an appeal from an order of the District Judge on a motion made by the defendants for a notice under section 104 of the Civil Procedure Code on the plaintiffs to produce a certain document referred to in the plaint. The parties appear to have misapprehended the scope of section 104, and the proceedings are quite irregular. The section provides for an ex parte application for a notice for the production of documents. The written application or memorandum of motion is not expressed with particular precision. It speaks not of a document to which " reference is made in the plaint, " but of a document " relied on by the plaintiffs, " and it is not stated in it whether the document is required for inspection by the defendants or their proctor. However, the notice applied for appears to have been allowed, but the notice taken out was a notice of an entirely different character. It was, in effect, a notice to snow cause why a notice under section 104 should not issue. The notice taken out was duly served, and the matter came up for discussion on July 14, 1913. As all the parties interested have acquiesced in the proceedings, I shall say nothing more on the question of irregularity. Having heard counsel the District Judge disallowed the defendants application, his chief reason being that the document in question had not been " pleaded in the plaint, or any affidavit filed by the plaintiffs. " Section 104, however, speaks of documents to which " reference is made in the pleadings or affidavits " of either party; and the question in the present instance is whether the document in question, that is to say, the agreement dated September 15, 1911, is not a document to which reference is made in the plaint. It appears in the list of documents added to the plaint, in terms of section 51 of the Civil Procedure Code, as documents relied on by the plaintiffs. It has been argued that this list is not a part of the plaint, and that therefore the document cannot be said to be a document referred to in the plaint. I think it is clear that anything added to the plaint becomes part and parcel of the plaint itself, and that inasmuch as the document in question appears in the list added to the plaint, it is, in fact, a document referred to in the plaint. If, as will not I am sure be doubted, a party is entitled to a notice for the production for inspection of a document disclosed in an affidavit filed under section 102 of the Civil Procedure Code in response to a motion for discovery of documents, I fail to see why he s

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