PATEL KALIDAS DEVRAJ Vs. PATEL KUVERJI ASHARAM

JUDGEMENT

(1.) The applicants in revision filed a suit for redemption of a mortgage said to have been executed by their ancestor in 1899 in favour of the ancestor of the opponent. According to them a copy of the document was produced in another suit and the record was in the High Court. The lower Court allowed a witness from the High Court to be called to produce a copy of the mortgage deed said to have been produced in Suit No. 109/59 When the witness came from the High Court and produced the whole record the Civil Judge (J.D.) at Dhrangadhra passed an order that the whole record should be returned. When a witness is summoned to produce a document the document produced must be kept on record in order to enable the party calling for it to prove it at a subsequent stage. It is ordinarily not proved on the very day. First of all a document which is called for to be produced by a witness must be proved and kept on record. The question of returning that document comes later. When the document is returned the procedure laid down in Order 13 Rule 9 Civil Proceeure Code must be followed. The said Order 13 Rule 9 reads as follows:-

(2.) In fact the applicants are anxious to prove the document if the document is admissible in evidence and is properly proved it is to be admitted in evidence. If it is not admissible in evidence or is not properly proved then it has got to be rejected. Even after it is rejected it has to be returned under Order 13 Rule 9 Civil Procedure Code by following the procedure laid down therein. All this has not been done. There is therefore a material irregularity in the exercise of jurisdiction because the document in question is supposed to be a copy of the mortgage deed of 1899 before the Indian Registration Act and the original is supposed to be in possession of the opponent mortgagee and the copy is said to have been produced by the opponent himself in the other suit. All these questions should have been gone into. The document cannot be returned immediately after it is produced by a witness who comes under sec. 132 of the Indian Evidence Act

(3.) The application is therefore allowed and the lower Court is directed to keep Ex. 18/1 produced by the clerk of the High Court and return it only after following the procedure laid down in Order 13 Rule 9 Civil Procedire Code and for that purpose to call the witness from the High Court again. Ex. 18/2 is a public document and it is open for any one to produce a certified copy thereof and moreover it is only an application by an advocate. There is therefore no need to keep it on record. Application allowed