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TMI Blog1984 (3) TMI 434X X X X Extracts X X X X X X X X Extracts X X X X ..... in schedule A and from alienating in all the properties of the said businesses and for appointment of receiver of the said businesses for appointment of Commissioner to make inspection and take possession of books of account income-tax files share transfer books etc. The plaintiffs also prayed for an interim order for appointment of a Special officer of the Court to collect the arbitration agreement and all records and proceedings and documents produced in the arbitration proceedings from the arbitrators. A notice of motion was presented on 8th July 1980 and on the same day the Court was moved for urgent ex parte order and the trial Court passed the following order: - A person to be named by Registrar is appointed as a Commissioner to make inventory of the properties referred to in para (c). The plaintiffs to deposit ₹ 750/-. Another person to be named by Registrar is appointed as a Commissioner to make inventory in respect of point referred in Para Dal the place mentioned herein. The plaintiffs to deposit ₹ 200/- (Rs. Two hundred only). 3. The prayers (c) and (D) are as follows:- (C)That Commissioner be appointed for making inventory and take possession ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re. under subr. (21, (he provisions of R. 10 are applicable and, therefore, all the documents taken possession of by the Commissioner and produced in the Court is to be considered as the evidence taken by film and under R. 10(2), the report of the Commissioner and the evidence is to be treated as evidence in the suit and it is a part of the record and. therefore, there is no need to file any affidavit and pleading to show the relevance, admissibility and reliability of the documents and they are required to be exhibited. 8. An application Ex.100 was presented to the trial Court during the course of arguments at the hearing of the application for interim orders. In the application it was pointed out that the record of arbitration proceedings was kept under the safe custody and now is brought in the Court and it was further claimed that it was required to be ordered it) he made part of (he record of the suit and the files were required to be given exhibit numbers as the same were required to be referred it) at (hat stage and therefore. the prayer was made it take the record of arbitration proceedings on the file of the suit and to give exhibit numbers Io the aid files. The same wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a the part of record the Court or with the permission of the Court any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report or as to his report or as to the manner in which he has made the investigation. 12. On the basis of the above rules, the learned Counsel for the petitioners contends that the Commissioner who was appointed to perform the ministerial act of making inventory of the arbitration agreement and of the record and proceedings and the documents produced in the arbitration proceedings has in discharge of the commission taken possession of the documents and made a report and produced the documents in the Court and, therefore, the said report and the documents brought by him (as if it was evidence taken by' him) be treated as evidence in the suit and made part of the record and be exhibited 13.The learned Counsel for the petitioners argued that R 10B(2) applies to the provisions of R 10 in relation to a Commissioner appointed to perform a ministerial act and made an exception in respect of the documents and materials collected by him and the learned trial Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r judicial not involving exercise of judgment or discretion. The term 'ministerial is used in contrast to judicial, Thus under R. IOR when, a Court appoints a Commissioner for performance of any ministerial act which cannot conveniently be performed before the Court, the Commissioner is not performing any judicial act nor any act which would change the rights of parties or the procedures and rules of evidence so as to prejudicially affect the rights .of parties in the matter of procedure. 17. Moreover, the Commissioner was appointed to make inventory only and he was not appointed to take possession of the documents. Even if he was appointed to take possession of the documents, it would not have made any difference under O. 26 R 1013 the appointment is to perform merely a ministerial act and only those acts which are covered by sub- r. ( 1) i.e. ministerial acts, to which only that sub, r. (2) will apply. so as to attract the application of sub-r. 10(2). Therefore, the report of the Commissioner for the performance of that ministerial act and the evidence if he has recorded himself would become the part of the record in the suit under R. 10(2), but not whatever documents that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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