LALCHAND RAMCHAND Vs. PYARE DASRATH CHAMAR

JUDGEMENT

(1.) THIS Is a plaintiff's appeal against a decree passed by the Additional District judge, Panna, dismissing his suit.

(2.) THE facts are that the plaintiff filed the suit giving rise to this appeal on november 20, 1966, against the defendants on the allegations that on November 24, 1966, they approached the plaintiff for obtaining a loan of Rupees 14. 717. 68 for the purpose of depositing Government royalty and sales-tax in respect of a diamond. The defendants promised that after depositing the amount of royalty and sales-tax, they will deposit the diamond with the plaintiff as a pledge and will pay interest at the rate of 2 per cent per month on the amount of loan. The plaintiff agreed to these terms and a sum of Rs. 14,717. 68 was got deposited by him in the State Bank towards the payment of royalty and sales-tax on behalf of the defendants. By virtue of this deposit, the defendants got possession of the diamond, but they did not deliver the same as pledge of the plaintiff. This action of the defendants, which amounted to cheating, shocked the plaintiff and he made a hue and cry on which some people gathered and on their persuasion the defendants executed a pro-note in favour of the plaintiff in which the term of interest was omitted. In paragraph 4 of the plaint the plaintiff stated that the pronote, which was the basis of the suit, was being filed in evidence. The relief in the suit was for recovery of Rs. 16,727. 73 inclusive of interest. Interest at the rate of 2 per cent per month was also claimed from the date of the suit till the realisation of the amount. It was also prayed that the plaintiff be given possession of the diamond as a security till the realisation of the decretal amount. The defendants denied the taking of loan or execution of pronote. The suit was dismissed on the ground that the plaintiff failed to produce the pronote which was the basis of the suit, and that he was not entitled to lead any oral evidence to prove the loan. It is against this decree that the plaintiff has come up in appeal.

(3.) THE circumstances which led to the non-production of the pronote may now be stated, for the main contention raised by the plaintiff in this appeal is that he was prevented in producing the pronote because of a wrong order passed by the trial court. The plaint was filed in the Court on behalf of the plaintiff by his Advocate shri S. K. Shrivastava, who was also given the original pronote by the plaintiff. Instead of filing the original pronote, Shri Shrivastava filed a copy of the same along with the plaint. This was permissible under Order 7, Rule 14 of the Code of civil Procedure. On the first hearing of the suit, the pronote was not filed. Another advocate Shri R. D. Mishra was engaged by the plaintiff. A summons was obtained for Shri Shrivastava to file the original pronote. Instead of filing the pronote, Shri shrivastava, on December 21, 1967, raised an objection that he had a lien for his fees enabling him to retain the document. This objection was decided on January 9, 1969, in favour of Shri Shrivastava and it was held that he could withhold the production of document until his lien was discharged by payment of fees. As already stated, on January 31, 1969, the suit was dismissed for non-production of the pronote.