ILA VIPIN PANDYA versus SMITA AMBALAL PATEL & ANR.

Citation: [2008] 7 S.C.R. 498 · Decided: 01-05-2008 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Dismissed

Judgment (excerpt)

[2008) 7 S.C.R. 498 
A 
ILA VIPIN PANDYA 
II. 
SMITA AMBALAL PATEL & ANR. 
(Civil Appeal No.· 5735 of 2005) 
B 
MAY 1, 2008 
[S.B. SINHA AND V.S. SIRPURKAR, JJ.] 
Bombay High Court (Original Side) Rules, 1980 - rr267 
and 268 - Certified copy of document - Entitlement to -
c Appellant filed Testamentary Petition - Respondent No. 1 filed 
caveat - Testamentary Petition converted into Testamentary 
Suit - Appellant sought for discharge of Respondent No.2, 
her counsel in the suit - Respondent No. 2 discharged - She 
filed Miscellaneous Application in the Testamentary suit 
D alleging that Appellant had committed perjury - Chamber 
Summons .taken out by Respondent No.1 seeking certified 
copy of the said Miscellaneous Application rejected by Single 
Judge of High Court - But allowed by Division Bench - On 
appeal, held: There is a clear distinction between parties to 
E the suit or matter and persons who are not parties to the suit or 
matter- While there is a clear cut right in favour of the party to 
the suit to get the search and certified copies, there is a 
discretion in the Prothonotary and Senior Master whether to 
grant or not such search and/or certified copy to a person who 
is not a party to the suit or matter- Further distinction between 
F suit and matter - Respondent No. 1 though caveator in the 
'"' 
beginning had become a party to the suit and was as such 
interested in the matter since allegations of perjury were made 
against her adversary, the Appellant - Also, no possibility of 
misuse of the certified copy by Respondent No. 1 as alleged -
G Even if Respondent No. 1 was not a party to the matter, i.e., the 
said Miscellaneous Application, since she was a party to the 
suit out of which the Miscellaneous Application emanated and 
·~ 
as such the same could be treatecJ ,as._ record of that suit, she 
was entitled to the certified copy: · 
H 
498 
1 
( 
ILA VIPIN PANDYA v. SMITAAMBALAL PATEL & ANR. 
499 
Appellant filed a Testamentary Petition before the A 
Bombay High Court for issuance of Letters of 
Administration in respect of the estate of her late husband. 
Respondent No.1 filed a caveat, whereafter, the 
Testamentary Petition was converted into a Testamentary 
Suit. Appellant sought for discharge of Respondent No.2, 
B 
her counsel in the suit. Respondent No.2 was discharged, 
on which she filed a Miscellaneous Application in the 
Testamentary suit alleging that Appellant had committed 
perjury and action should be taken against her. In support 
of the Miscellaneous Application, Respondent No.2 c 
tendered two audio cassettes containing a tape recorded 
conversation between her and Appellant. 
Subsequently, Chamber Summons was taken out by 
Respondent No.1 seeking certified copy of the said 
Miscellaneous Application as also transcript of the said D 
audio cassettes. The same was rejected by a Single Judge 
of the High Court. The Single Judge held that the 
Miscellaneous Application was between the Advocate 
(Respondent No.2) and her client (Appellant) and 
Respondent No.1 was not even party to the same and as E 
such she was totally unconcerned with the Miscellaneous 
Application. 
Appeal filed by Respondent No.1 was, however, 
partly allowed, in that the Division Bench allowed her to 
have a copy of the Miscellaneous Application but declined 
F 
the request in respect of the audio cassettes. The Division 
Bench held that the said Miscellaneous Application was 
a part of record of the Court in the Testamentary Suit 
where Respondent No.1 was a party. The Court, therefore, 
observed that when a party to the suit takes inspection G 
and applies for a certified copy of the record, it is a duty 
cast under Section 76 of the Evidence Act on the Court 
... 
· officer. to make available the certified copies. According 
to the Division Bench, Respondent No.1 
had 
demonstrated her interest in the proceedings since her H 
500 
SUPREME COURT REPORTS 
[2008] 7 S.C.R. 
A caveat was accepted and the Court on that basis had 
converted the proceedings into a regular suit. 
In appeal to this Court, it was contended that the 
Division Bench of High Court erred in ordering the copy 
B of the Miscellaneous Application to be supplied to 
Respondent No.1, particularly, in view of the fact that the 
testamentary suit was already disposed of by the High 
~ 
Court and even appeal thereagainst, being Civil Appeal 
No.2455 of 2005, has been dismissed by this Court. It was 
contended that thereby unfair advantage was conf

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