ALI MALIK Vs. ALI BHAT

JUDGEMENT

(1.) THIS is an application against an order of the Second Additional Munsiff Srinagar dated 11 -9 -62 refusing to admit a document produced by a witness and sought to be relied upon by the plaintiff. The ground taken by the court below was that as the document was in the power and possession of the plaintiff, it should have been produced at the first hearing and no good cause was shown for its late production. It is common ground that the document in question could not be in possession of the plaintiff because it was not a document which was in his personal custody. The words "possession or power" imply that the document in question must be in actual physical possession or control of the plaintiff. It would not include a document over which the plaintiff has no control and which can be produced only through the intervention of the court by calling a witness and asking him to produce a document. Such a document cannot come within the purview of Order 13 Rule 1 or 2 of the Code of Civil Procedure. In the instant case, it is clear that the document in question was not in possession of a plaintiff but was in possession of a witness who also happened to be one of the defendants in the case. In these circumstances, it was not possible for the plaintiff to have produced this document at the first hearing of the suit. The order of the court below is, therefore, legally erroneous and cannot be allowed to stand.

(2.) THE application is accordingly allowed and the order of the court below dated 11 -9 -62 is set aside. As the plaintiff has not been very diligent in causing this document to be produced at an earlier stage by issuing a notice to defendant witness when the plaintiff was initially leading his evidence, the defendant is entitled to be compensated by costs.

(3.) THIS order will, however, be subject to the payment of Rs.16 as costs by the plaintiff to Mr.Bhan counsel for the other side. The costs will be paid within 10 days from today, and the receipt should be filed before the trial court.