TMI Blog1977 (12) TMI 150X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Subordinate Judge, 4th Court, Alipore in Title Suit No. 2 of 1977. The aforesaid Title Suit 2 of 1977 was instituted by the plaintiff opposite party No. 1 inter alia praying for leave under Order 1. Rule 8 of the Civil P. C. for a declaration that the resolutions passed in the three meetings dated Oct. 31, 1976 and Nov. 1, 1976 by the Institution of Engineers (India) were illegal, arbitrary and void and also for a decree for permanent injunction restraining the defendants to carry into effect any of the resolutions passed in the said meeting and for other ancillary reliefs. 2. The short facts of the case are that the petitioner No. 1 viz. the Institution of Engineers (India) was initially incorporated at Madras in 1919 under the Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1976 another special general meeting was held and the said meeting was a requisition meeting. The said requisition meeting did not pertain to change the Bye-laws and regulations but was concerning the proposed Council resolution recommending to Government for formation of an all India services for Engineers and after discussion the said resolution was put to vote and lost and the proceedings of the said meeting were duly published. The petitioners can-tend that after the institution of the said Title Suit No. 2 of 1977, the plaintiff wrongfully obtained ex parte order under Section 151 read with Order 39 Rule 7 C. P. C. which was modified by another ex parte order dated 14th Jan. 1977 for appointment of a pleader Commissioner for the purpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ongful counting of proxy votes by appointing a Pleader Commissioner for the purpose. Mr. Mukherjee, further submitted that Order 39 Rule 7 applies to the subject matter of the suit and not to any evidence in a suit. Mr. Mukherjee also submitted that even under Section 151, such commission could not be issued by the court because issue of an inventory commission for helping a party to fish out evidence is opposed to justice. In this connection Mr. Mukherjee relied on a decision of the Supreme Court in the case of Padam Sen v. State of U. P. reported in 1961CriLJ322 . It was held in the said case that if there is any allegation that certain documents are forged, the party can prove forgery by evidence but it was not the business of the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e parties themselves should never have any access on the ballot papers. The said case related to a dispute concerning an election under the Municipal Act. Similar view was also expressed in another decision reported in AIR 1949 Mad 835 and it was held in the said case that the mode in which a voter has exercised his right of franchise should not be discovered whenever there is any dispute and before any order for inspection is made, there must be satisfaction of the Court on evidence on oath that such inspection is necessary and a very strong case is required to be made out to justify the production of ballot papers. Mr. Mukherjee contended that it is quite apparent from the plaint that the plaintiff raised objection about counting of some ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only to the proxy votes of Orissa. Mr. Maitra, further contended that for passing an order under Order 39 Rule 7 of the C. P. C. it is not necessary that the said provision must confine to the subject-matter of the suit itself and appropriate order can be passed under Order 39 Rule 7 C. P. C. even in respect of matters in respect of which any question may arise in the suit and for this proposition Mr. Maitra relied on a decision reported in AIR1975All399 . It may be stated in this connection that even assuming that the provision of Order 39 Rule 7 may relate not only to the subject matter of the suit but also in other matters in which any question may arise relating to the suit, no commission can be issued for the purpose of collecting evid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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