MURARI LAL Vs. NEM CHAND JAIN

JUDGEMENT

(1.) Suit premises was an evacuee property It was allotted to one Sham Babu. After his death, the plaintiffs claimed that they were in possession as partners and that this was re1 cognised by Custodian and that they had been illegally dispossesed by defendant. Defendant denied this and claimed that he was in lawful possession. Plaintiffs sought interim injunction and filed a carbon copy of a receipt from the department. Defendant claimed the receipt to be forged one and applied that plaintiffs should produce original receipt and also summon record from Custodian's office. Plaintiffs replied that they had lost the original and about summoning record, it was held that plaintiffs could not be compelled and defendant could himself do the same. The Sub-judge got transferred and defendant moved his successor for summoning record. This application was declined and defendant moved High Court. Para 6 onward, order is : -

(2.) The later order of the Subordinate Judge dt. 26-7-73 has been impugned in this revision and the learned counsel for the petitioner has submitted that the learned Subordinate Judge had misread the directions given by her predecessor and that her order suffers from a material irregularity in exercise of her jurisdiction and that the defendant has illegally been deprived of his right to summon and produce the relevant evidence.

(3.) I have heard the learned counsel for the parties at some length and find that there is force in the revision. The subordinate Judge by the previous order dated 16th November 1972 directed the plaintiffs to produce the original receipts and refused the application of the defendant for giving directions to the plaintiffs to summon the record from the Custodian to substantiate their receipt, but so far as summoning of the record from the Custodian is concerned, the Subordinate Judge observed that the defendant could discredit the plaintiffs'material from such record. By this order, he only (and in my view rightly) refused the rather unusual and illegal request of the defendant to order the opposite party plaintiffs) to summon the records of the Custodian. But the Subordinate Judge did not have any objection and indeed recognised the right of the defendant to summon the said records himself to discredit the plaintiffs in making out his prima facie case. The observations of the learned Subordinate Judge in the impugned order that the application of the defendant for summoning the record himself had been rejected, is not correct from the record. Again, the reasons given by the learned Subordinate Judge for rejecting the application of the defendant to summon the record from the Custodian are legally not tenable. It is true that under Order 39, Rule 1 of the Code of Civil Procedure, the Court has been given the power to issue ad interim injunctions on certain facts being proved by affidavit or otherwise. Normally the parties seeking or opposing the grant of interim relief would attempt to satisfy the Court only by affidavits. The provision is, however, permissible. This would include other material placed before the Court, including any evidence brought on the record. The learned Subordinate Judge was clearly in error when she states that she could only refer to affidavits and no other material brought on the record by the witnesses.