BHAGWANJI AND KALYANJI Vs. PUNJABHAI HAJABHAI RATHOD

JUDGEMENT

(1.) Parties are heard. The appellant-original plaintiff being aggrieved by the judgment and decree dated 29th March, 1986, passed in Regular Civil Appeal No. 20 of 1985, by the learned Assistant Judge at Porbandar, confirming the judgment and decree dated 27th March, 1985, passed in Regular Civil Suit No.177 of 1982, by the learned Civil Judge ( J.D.) Porbandar, is before this Court with the submission that on one side the learned trial court rejected the plaintiff's application for production of the document which was illegal and the appellate Court did not consider the said argument iner-alia holding that the plaintiff did not challenge the said order in duly constituted form. The submission of Mr. Shah that the judgment of the learned first appellate Court is per-incurium Section 105 of the Civil Procedure Code which provides that a person if is aggrieved by an interim order which had ultimately led to a wrong and incorrect judgment can always challenge the correctness of the said order in an appeal which is filed against the judgment and under Section 105 of the Code of Civil Procedure, the appellate Court would have powers to examine the correctness and validity of such order which had vitiated the entire proceeding and led to wrong findings or illegal judgment.

(2.) He also submits that the document was sought to be produced before the learned first appellate Court during course of cross-examination as additional evidence, but the said application was also unceremoniously rejected. The appeal has been admitted for hearing the parties on the following substantial questions of law.

(3.) After taking me through the judgments of the Court below Mr. Shah submits that even the carbon copy of the document which was prepared in the very same process would be admissible in evidence though question relating to its authenticity or genuineness can always be raised by the other side. Referring to the provisions of the Indian Evidence Act he submits that a carbon copy can always be produced in evidence.