(1.) This is a petition under Article 227 of the Constitution filed by one Bal Govind Kaya against whom a case is pending before the 3rd Addl. Civil Judge, Kanpur, who is respondent No. 1. The suit has been filed by Brij Behari Lal, respondent No. 2.
(2.) According to the petition, the suit is contested, inter alia, on the ground that the defendant never borrowed any money and he had no need to borrow the money. Written statements were filed by the petitioner and on 28-10-58 he alleges to have filed six original papers which, according to the petitioner, would have disproved and falsified the plaintiffs claim. On that day an application further is said to have been made to the effect that he was filing certain papers, and prayed for time for filing certain other papers. According to the affidavit filed by the petitioner, no sooner the papers were filed by the defendant than they had been removed along with the entire English order-sheet as these papers were entered therein. Next day respondent No. 1 ordered reconstruction of the English order-sheet In the index of the papers neither the application of the petitioner for extension of time nor the documents which had been filed therewith were entered. The case at the first stage was pending before the I Civil Judge but later it was transferred to the 3rd Addl. Civil Judge, Kanpur and when on 22-12-58 he found that the papers which had been filed were not on the record he brought this matter to the notice of the Ahlemad of the 3rd Addl. Civil Judge. On reopening of the Court after winter vacation on January 2, 1959, the petitioner also made an application with an affidavit that those papers had been filed. Orders were passed for the search of the papers and for enquiry. Some enquiry seems to have been made. But the complaint of the petitioner is that he had been given no opportunity to prove that he had filed the papers and the order which has been passed by the learned Addl. Civil Judge to the effect that the papers were not filed is an ex parte order and the principles of natural justice have been violated. He has prayed by this petition that opposite party No. 1 be directed to make enquiry about the loss of the documents and then to proceed with the hearing of the suit.
(3.) On behalf of opposite party No. 2 a counter-affidavit Has been filed in which it has been contended that the petitioner has been guilty of dilatory tactics. He had taken several adjournments and this also was a false pretext to get the case postponed and prolong the hearing. He contends that no documents were filed which had been lost.