VISHKARMA KALGIDHAR MILLS MOGA Vs. DAVINDER SINGH

JUDGEMENT

(1.) The petitioner is aggrieved against the order dated 31st July, 1986 passed by the learned Sub Judge 1st Class, Moga, by which his request to produce and prove on the record he relevant receipts in the gate pass book in its defence has been disallowed.

(2.) The facts in brief are that the respondent filed a suit against the petitioner for recovery of Rs. 29,000/- on the ground that goods of the said value belonging to the respondent had not been returned by the petitioner from its cold storage. It is not in dispute that previously a criminal case was instituted by the respondent against the petitioner on the ground of mis-appropriation of the goods, but the petitioner was acquitted. In the course of proceedings in the Criminal case the respond - it as also the petitioner had produce receipts issued from the gate pass book and counter foil of the gate pass book in support of their respective stands.

(3.) When the respondent led his evidence as a plaintiff he got produced and proved on the record some of the gate passes by virtue of which the goods other than those which he complains have been withheld by the petitioner were allegedly returned to him. At that stage the petitioner had raised objections against the production of those documents on the grounds that those have neither been relied on in the list of reliance filed by the respondent nor had been attached with the plaint. This objection was overruled by the learned trial Court on the ground that these gate passes had already been produced in the criminal litigation and formed part of the judicial file of the criminal if case. Therefore, the same were allowed to be produced and proved on the record. However, when the gate pass cook containing receipts, which according to the petitioner are duly signed by the respondent, and would have shown that the goods in dispute had also been returned to the respondent was sought to be adduced in evidence by the petitioner it has not been allowed to produce and prove the staute on the record on the ground, firstly, that these were not produced in Court before the settlement of issues as required by the provisions of Order 13 Rule I of the Code of Civil Procedure (for short the Code) and, secondly, that these counter foils are in the form of secondary evidence. Since the respondent has not been asked in the first instance to produce the original of the same which according to the petitioner must be in his possession, these carbon copies cannot be produced as secondary evidence under Section 66 of the Evidence Act, 1872 (for short the Act).