1 IN THE HIGH COURT JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.284 OF 2009 IN CHAMBER SUMMONS NO.1334 OF 2006 In SUIT NO.19 OF 2006 1.Jehangir A. Wadia & ors. ...Appellants. Vs. 1.The Lokmanya Pan Bazar Association Ltd. & Anr. ...Respondents. --- Mr.Janak Dwarkadas, Sr. Advocate with Mr.A. Sayed i/b. M/s.Consult Legal, for Appellants. Mr.F.Devitre, Sr.Advocate i/b. Mr.Anil Menon & Associates, for Respondent no.2. CORAM: D.K.DESHMUKH & R.V.MORE,JJ. DATED: 26th April, 2010 P.C.: 1. At the request of the learned Counsel appearing for appellants, the name of Respondent no.1 2 is permitted to be deleted. 2. Admit. Heard finally by consent of parties. By this appeal, the original plaintiffs challenges the order dated 6.5.2009 passed by the learned Single Judge of this Court in Chamber summons no.1334 of 2006. That chamber summons was taken out by defendant no.2 for direction to the plaintiffs to give inspection of certain documents. Admittedly, those documents have been referred to in the plaint. The suit of the plaintiffs is mainly for decree of declaration that the rectification deed executed on behalf of the plaintiffs in favour of defendant no.1 is not a valid document, and for other consequential reliefs. The admitted facts are that the plaintiff who is a registered public trust executed conveyance of the property owned by it in favour of defendant no.1 on 3.3.1969. It is the case of the plaintiffs that subsequently the manager of the plaintiffs Trust executed rectification Deed dated 26.6.1992 unauthorisedly, thereby increasing area of the land which was transferred by the Trust in favour of 3 defendant no.1. Defendant no.2 claims that he has been given development rights by defendant no.1. In the plaint, the plaintiffs have referred to those documents which relate to title of the plaintiffs- trust viz. Will, Codicil and the probate granted by the Court as also the agreement that was entered into before the conveyance was executed by the Trust in favour of defendant no.1, to establish their title to the land. The defendant no.2 sought inspection of those documents on the ground that those documents are referred to in the plaint. The defence of the plaintiffs was that those documents were referred only to show that the plaintiffs had title to the land which was originally conveyed to defendant no.1 as also in relation to which subsequently a rectification deed was unauthorisedly executed by the Manager. It was submitted that so far as the title of the plaintiffs to the land is concerned, the defendant no.2 cannot dispute it because defendant no.2 is on the land through defendant no.1 who has derived his title only from plaintiffs and no other source. The learned Single Judge rejected this and 4 has allowed the chamber summons mainly on the ground that these documents are referred to in the plaint, and therefore, the plaintiffs have to give inspection of those documents. It is also clear from the order that the plaintiffs have stated before the learned Single Judge that though they have referred to these documents in the plaint, they undertake not to rely on these documents at the trial. The learned Counsel appearing for plaintiffs-appellants submits that defendant no.2 in the written statement does not dispute the title of the plaintiffs rather he cannot dispute the title of the plaintiffs. The Will and the Probate and the agreement entered into between the defendants and plaintiffs are relevant only for proving title of the plaintiffs which is not in dispute, and therefore, according to the learned Counsel, an order for granting of inspection of those documents to defendant no.2 could not have been made because it would amount to making roving inquiry by defendant no.2. 3. On the other hand, the learned Counsel 5 appearing for Defendant no.2 firstly objected to the maintainability of the appeal by referring to two judgments viz. (i) 1909 The Bombay Law Reporter 248, Ahmed Bin Sheikh Essa Bin Khaliffa Vs. Ayeshabai; (ii) 1872 Bombay High Court Reports 398, Sonbai, widow of Fazul Habibhai & Anr. Vs. Ahmedbhai Habibhai and another. However, we find that the Division Bench of this Court by its judgment in the case Nishi Prem Vs. Javed Akhtar & ors, 1987 Mh.L.J. 1073 relying on the judgment of the Supreme Court in the case Shah Babulal Khimji Vs.Jayaben D.Kanie & Anr., AIR 1981 SC 1786 has held that an appeal under Clause 15 of Letters Patent directing the defendant to answer interrogatories is maintainable considering the consequences that will result due to non- compliance of the order. In our opinion, applying the same test, an appeal from an order directing the plaintiffs to give inspection of the documents is also maintainable because the consequence of plaintiffs not complying that order could be dismissal of the suit. Therefore, in our opinion, it cannot be said that the appeal is not maintainable. 6 4. So far as the merits are concerned, the learned Counsel submitted that for proving the defence of the defendants, these documents are necessary. According to the learned Counsel, because these documents throw light on the matter in controversy, inspection of these documents has to be given. The learned Counsel relied on the judgment of the Supreme Court in the case Shri.M.L.Sethi Vs. Shri.R.P.Kapur, (1972)2 Supreme Court cases 427 . The learned Counsel submits that it is the defence of the defendants that it was the intention of the Trust to transfer larger area in favour of defendant no.1 but by mistake they transferred lesser area and therefore, rectification deed was executed. The learned Counsel submits that in order to prove the case, production of these documents is necessary. 5. With the help of the learned Counsel, we have gone through the record. It is true that the documents of which the inspection was sought are referred to in the plaint but it is also clear that 7 for proving the case of the plaintiffs these documents are absolutely not relevant because the title of the plaintiffs to the land in question is not in dispute at all, and the documents viz. Will, Codicil and the Probate are relevant only for one purpose viz. to prove title of the plaintiffs to the land. So far as the agreement is concerned, we have been informed that this agreement was entered into between the Trust and Defendant no.1 for transfer of the land. The conveyance which was executed in favour of defendant no.1 is admittedly on record and the inspection has been given. Therefore, this agreement is also not relevant for proving as to how much land was conveyed by the conveyance. Had it been the case of the defendants that by the Agreement the trust had agreed to convey to the defendant no.1 larger land which is now done by rectification deed, then probably the agreement would have been relevant. But perusal of the written statement shows that that is not the defence of the defendant no.2. It is the case of the defendant no.2, as can be seen from the written statement, that the dispute arose between the 8 trustees of the plaintiffs about measurement of the area transferred and on actual measurement, the area found to be equivalent to 24094 sq.yards, and therefore, rectification deed was executed. It is not the defence of the defendant no.2 that originally larger land was agreed to be transferred in favour of defendant no.1. Thus, we find that the inspection of this document is not necessary either for proving the case of the plaintiffs or for proving the defence of defendant no.2. The validity of rectification deed is challenged by the plaintiffs mainly on the ground that the Manager who has executed the rectification deed had no authority to do so, and the defence of the defendant no.2 is that he had that authority and for proving that aspect of the matter the documents are not relevant at all. In our opinion, specially because a clear statement made by the learned Counsel on behalf of the plaintiffs that they are not relying on the documents which implies that they will apply for suitable amendment in the plaint so that reference to these documents can be deleted, in our opinion, the learned Single Judge could not have made 9 the order. The learned Counsel appearing for defendant no.2 also submitted that as there is no likelihood of any prejudice to be caused to the plaintiffs by giving inspection of these documents and as the order of inspection is in the discretion of the Court, the appeal Court should not interfere with the order. In our opinion, the submission has no substance, because though the order of inspection is in the discretion of the Court, but if the Court makes an order for granting of inspection on the consideration which is totally irrelevant, the Appeal Court will have to interfere with the order. The learned Single Judge has granted inspection only because the documents are referred to in the plaint, though a statement was made before the learned Single Judge that the plaintiffs are not relying on those documents. In our opinion, therefore, non- interference with such an order will result in miscarriage of justice. The appeal therefore, succeeds and is allowed. The order impugned is set aside. In view of the aforesaid order, Notice of 10 motion no.2471 of 2009 does not survive for consideration. It is disposed of. (D.K.DESHMUKH,J.) (R.V.MORE,J.)