T SAMABAMURTHY Vs. P BALARAMAIAH CHETTY

JUDGEMENT

(1.) This revision petition arises against an order partly accepting the case of the petitioner and partly keeping the matter in vaccume. The case of the petitioner is that the promissory note, the subject matter of the suit, is a renewal of an earlier promissory note which was executed by him in favour of the Finance-Corporation, to which the respondent-Plaintiff, is a partner. The original promissory note was for consideration and in the present promissory note, no consideration has been passed and it is only a renewal of the earlier pronote, but was taken in the name of the respondent etc. To substantiate his contention, the petitioner filed an application underOrder 11 Rule 18 C. P. C for directing the respondent to produce the Account books of the Finance Corporation in his possession, for inspection. The trial Court gave a finding thus;

(2.) In this revision, Sri Sundararajan, learned counsel for the petitioner contends that having given a finding that the records are necessary for the fair disposal of the case and ought to be given for inspection, the lower court, by operation of Order 11 Rule 18, ought to have directed the respondent to produce the records. In other words, what he contends is that a reading of the latter clause of Order 11, Rule 18, viz., "provided that the order shall not be made when and so far as the court shall be of opinion that it is not necessary either for disposing fairly of the suit or for saving costs", it gives an indication that on finding that the records are necessary, it is mandatory on the part of the Court to call upon the respondent to produce the records for inspection for the petitioner. The lower Court committed error of jurisdiction in not directing the respondent for production of records.

(3.) Sri Pattabhirama Rao, learned counsel for the respondent, on the other hand, contends that the whole case of the respondent is that he is not in possession of the record and therefore, calling upon him to cause production of the record is a futility in exercise and therefore he cannot be compelled to produce the record.