Walsh, J.@mdashThis is an appeal from an order of remand which was clearly rightly made although we think made on wrong grounds. The
matter raises a question of such importance, possibly to the plaintiff himself but certainly to the general public, that it is desirable to make the law
clear, It has not yet been tried and we refrain from expressing any opinion about the merits. We would merely say this by way of preface, that, in
our opinion, the law in India upon the questions raised is the same as the law in England, and the Common Law of England provides that if any
duly qualified citizen, or burgher, or person entitled to be upon the electoral roll of any constituency is omitted from such roll so as to be deprived
of his right to vote, and so an to give the Returning Officer an adequate ground for refusing him the right to vote on election day when the matter
has to be decided summarily, and that refusal or omission from the roll, as the case may be, turns out on investigation to be wrongful, he has
suffered a legal wrong; he has been deprived of a right recognised by law and he has against the person no depriving him a remedy by what has
always been sailed an action on the case"" for nominal damages for the right that he has lost, which may at the discretion of the Court be punitive or
exemplary if the conduct is the result of some malicious and wicked intention; and also for any pecuniary expenses to which he may have been
reasonably put an a result of the wrong done, for example, efforts to re place his name on the roll. It has been suggested by the Municipal Board
before us that the plaintiff either did not seriously assert, or abandoned, this precise form of claim when he came to Court. It is certainly contained
in his plaint. It does appear to be absent from the judgments of the two Courts as a substantive matter in dispute, and it is not the ground on which
the lower Appellate Court has remanded the suit. But we are not satisfied that the plaintiff ever intended to abandon it, and it is clearly a matter
which ought to be disposed of either by a correct judicial decision or by the consent of the parties, All that we know about the plaintiff''s attitude in
the matter is that he asked for something very much more.--one relief which he had already got, and another, namely, a declaration that the
constitution of the Municipal Board was altogether invalid, which he was never likely to get,--and that he announced his intention of conferring each
damages as he could recover upon some charitable institution.
2. In order that our view must be properly appreciated the allegation of the plaintiff should be stated. The suit is brought against the Municipal
Board of Agra. The plaintiff who in a Pleader is a previous member of the Board, on which he says be sat from 1914 to 1916. Two lists are
prepared by the officials of the Board under statutory authority, namely an electoral roll and a candidates'' list. An election was approaching in the
year 1919 and the plaintiff had been a severe critic of the Municipal Administration up to that time. Ha alleges, and on this matter he is the best
Judge, that his criticism was such as to create hostility to himself personally among the members of the Board. He is a house-owner and an
occupier at Agra and it is not denied that he is entitled to be on both the roll and the candidates'' list; indeed he was on both, and the revising
authority, consisting of three members of the Board, passed the roll and the list on the 31st of January 1919. Either as the result of what these
parsons did officially in the course of their business or wrongly with intention in the course of their business, or as a result of the revengeful and
malicious interference of some individual, either a member of the Board or an employee in the office of the Board, after the statutory sitting of the
revising authority the plaintiff''s name on the list was so put and his description so fabricated as to represent him to be somebody other than the
person he was known to be. For example, on the candidates'' list (and if his description of himself is correct, it is as a candidate that he was most
objection able to the Board) he is described by his right name but with his wrong father, his wrong taste, and his wrong occupation, all three of
which put against his name were those of the owner of the house and not of himself. This being so, the Nomination Officers who acted sometime
between the 31st January and 8th of March had to reject his nomination, because the person who presented himself at the nomination was not the
son of the father in the candidates'' list. Thereupon, the plaintiff brought this suit asking for the correction of the list as a specific relief, claiming
damages for the wrong done to him, and at some later stage of the suit adding the some what childish claim that, because the electoral list or the
candidates'' list had been tampered with, the whole constitution of the Board was invalid. Before the case same on for trial the District Magistrate
had corrected the list. This, indeed, happened before the election took place and it is said that the plaintiff was an unsuccessful candidate. That is in
no way a defence to the suit. We know nothing about the merits of Municipal controversies at Agra, but it might happen that a candidate whore
nomination had been rejected and whose qualifications had obviously became a matter of public discussion would be seriously hampered in his
efforts to obtain votes, and even although he succeeded in correcting the mistake and securing his proper nomination before the election it might be
sufficient in certain cases to explain his defeat. But, apart from that, in the leading case on the subject, namely Ashby and White which was decided
in the reign of Queen Anne in England, the plaintiff in that case, who had been deprived of his right to vote, intended to vote for the successful
candidate; none the less he had been deprived of a lawful right for which he was held entitled to recover damages. Unfortunately, the defendants
have done, up to this moment, little or nothing to clear the ground and to enable the Courts to see whether or not the plaintiff''s grievance is well
founded. What the defence may ultimately be nobody knows, because the door has been closed upon the plaintiff before that stage was reached.
It is impossible to discover it from the pleadings and one is bound to observe that one''s suspicious are invariably aroused against defendants who
shelter themselves behind pleas which disclose nothing on the facts or merits of the case. The defendants who have been sued, and presumably
rightly sued, because the plaintiff cannot know,--no member of the public can know,--what goes on behind the doors of the Municipal body, are
the Municipal Board itself and individual member, including the Executive Officer. If liability is eventually established for damages, that liability, in
order to be placed upon the right shoulders, must be decided according to the ordinary general principles of principal and agent. No individual
member of the Board can be made liable in his own pocket, separately and independently of the Board, for an act in which he had no part or lot
himself and which he did not in any way authorise. On the other hand, any individual member of the Board who either expressly or indirectly
encouraged, incited, directed, or, approved of, in other words, aided and abetted the attempt which was undoubtedly made by somebody to
deprive the plaintiff of his right to be on the candidates'' list would be liable in his own pocket, independently altogether of the question whether or
not the Municipal Board would be liable as well. The Municipal Board as principal would only be liable for the act, i.e., the public Funds of which
the Municipality are custodians and out of which they will have to pay any damages for any corporate act committed by them, would only be liable
for an act done by themselves informally, or formally by way of resolution, or by a committee of authority like the revising authority appointed by
them, or by one of their servants doing what he did, although wrongfully, at a time and in a manner when and in which he is employed to do it -by
the Municipality, if he did it improperly, i.e., if the act were done by a clerk whose duty it was to 611 in the plaintiff''s name correctly and he filled it
incorrectly in the ordinary course of business, the Municipality would be responsible for that.
3. It is perhaps desirable to say quite clearly, although it appears from what we have Said already, that the ground on which the case was
remanded, namely, the re consideration of the issue as to whether the Board should be declared to be altogether invalid and improperly constituted
because one of the names on its election list is wrongly entered, is one which no Court ought to have entertained at all and which the lower Court
should disregard and strike out of the issues altogether. In its place an issue must be put which we ourselves frame;--""What damages, if any, ought
the plaintiff to recover, and from whom, in respect of the wrongful omission to record his name correctly on the candidates'' list?
4. This leads us to some further observations and further directions which, we think, under the special circumstances of this case and of its public
importance, we ought to make. In a case of this kind, as we had occasion to remark the other day in cases of an agent suing a principal who has all
the figures in his possession, or a partner suing a firm which has all the accounts and books in its possession, a plaintiff is absolutely at the mercy of
the defendant who knows the facts unless he takes the steps which the law has provided, and unless the Court aids him in taking those steps, to
discover the relevant documents which are in the possession of the defendant. So far as we know, there is really no power except in a suit, unless it
be the power under the Criminal Procedure Code by means of a search warrant, by which any member of the public can get at documents relevant
to the injury which he has suffered, if the public body which has the custody of these documents chooses to sit on them. The plaintiff in this case
quite clearly, whatever else may be said about his motives, realising the difficulty, stated in his plaint that he did not know who was the author of his
grievance but that it was impossible to resist the conclusion that his name was intentionally removed from the list. He has a right, and any Court
trying such a suit has the duty, to insist that all documents in existence or which had been in existence which throw light on that question must be
produced. The plaintiff made an effort to obtain discovery by the rather feeble machinery of a notice to produce the only effect of which is, if the
other side refuses to produce, to entitle you to prove your own copy, and, as you have never seen the original it is not a very valuable right. That
distinction is often lost sight of. A notice to produce is not a subpoena nor is it any part of the machinery for discovery. It merely gives you the
right, if it is ignored, to prove any copy in your possession. Discovery is the machinery by which you discover what documents are in existence
which are not in your possession. The defendants, not unnaturally, met the plaintiff half way, saying, no doubt correctly, that there were too many
papers to file at that stage and that come might be lost, but they undertook to produce them at the proper time. It does not surprise us that the
proper time never arose. It seldom does when vague promises of that kind are made. But under Order XI, Rule 12 any party, like the plaintiff in
this case, may without filing an affidavit apply to the Court for an order directing the other party to make discovery on oath of the documents which
are or have been in his possession or power, relating to any matter in question therein. We think that in a case of this kind the plaintiff ought to have
discovery, and it is not too late, and we direct the lower Court before hearing this suit again on the merits to make an order under that rule if the
plaintiff makes a proper application, and not to reject it on the ground that it has been made too late. It is necessary in the case of a public body to
explain how the rule should be worked. In the first place, the contention already made by the Board''s Counsel that there are too many papers is
based upon a misunderstanding. It is not necessary to produce all the papers in the possession of the Municipality, relating to the electoral roll and
the candidates'' lists of any kind whatever. All that is required is to produce for inspection the documents relating to the entry of the plaintiff''s name
on the candidates'' list, and the electoral roll and every document, through whatever stage it has passed, relating to the plaintiffs name, whether
there has been any alteration, addition, or subtraction from the original entry in such rolls of the plaintiff''s name, and any correspondence between
the members of the Board and the Executive Officer of Secretary or other official or clerk of the Board relating to the plaintiff''s name and the
corrections or alterations made on the list relating to the plaintiff. It is not necessary to flood the Court. It would be a breath of duty if the Executive
Officer or the Secretary attempted to flood the Court with a number of irrelevant documents. If anything has been destroyed or weeded out it must
be included by description in the affidavit in the class of documents which have been in the possession of the Municipality. There must be no
attempt to burk that clause, which has been put in the rule for good reason. If a document has been in their possession, and is not now, its
disappearance must be explained by an officer of the Board who knows what has become of it and why and when it was destroyed or removed.
Lastly, following the ordinary practice in England with reference to a Municipal Corporation or limited company, the affidavit must be made on
behalf of the Municipal Board by the Chairman or the Executive Officer, who, making their affidavits jointly as such officers, must swear that they
have made all necessary enquiries of all employees in the Board with reference to the documents which they swear to in their affidavit, and if there
is any document to which they make any objection, legally or otherwise, to produce, although it is relevant to this question, they must take their
objection in the affidavit and the Court must decide it before hearing the case.
5. The appeal must be dismissed with costs.
Stuart, J.
6. I concur in the order proposed.