MOHANLAL RATHI Vs. HIND STORES

JUDGEMENT

(1.) THIS revision application has been preferred by the plaintiff against the order of the leaned Additional civil Judge dated July 15, 1978 by which his application dated December 16, 1976 under Section 151 Order VII Rule 18 and Order XIII Rule 2 CPC, was dismissed

(2.) THE plaintiff -petitioner instituted a suit against the defendant non -petitioner for the recovery of Rs. 5000/ - on August 8, 1967. The defendant contested the suit vide written statement dated December 18, 1967. The claim of the plaintiff -petitioner was dented. The defendant -non -petitioner preferred a counter claim for Rs. 3200/ - consisting of Rs. 303165 as the principal and Rs. 168.35 (sic) account of interest according to mercantile usage The trial court framed issues on Sept, 9, 1969. Issue No. 4 related to courier claim. The burden of some of the issues, was on he plaintiff and in respect of some issues, the burden was placed on the defendant. It may be mentioned that the burden of issue No. 4 was on the defendant. The plaintiff petitioner led his evidence first in support of issue, the burden of which was placed upon him. After the closure of the plaintiff's evidence subject to the light of rebuttal, defendant led his evidence which was closed on November 5, 1974. The case was posted for the rebuttal of the plaintiff on December 4, 1974 On August 2, 1976, an application was moved on behalf of the plaintiff snider Order VII Rule 18 and Order XIII Rule 2, CPC. This application was resisted be the defendant by filing a reply on August 12, 1976 The learned Civil Judge by his order dated September 15, 1976, partly allowed that application and ordered that the plaintiff can only get the bank accounts' statements of defendants produced from the banks relating to the period of which the cheques have been filed by the defendant This application was allowed with costs of Rs. 20/ - to the defendant It may be mentioned here that in that application, the plaintiff -petitioner stated that some of the cheques given by him were not credited it the account books of defendant and this fact can be proved from the bank statement of the defendant that in fact these cheques were encased by the defendant The plaintiff requested for the pr Suction of counter -foils of the cheques and pay in slips by which these cheque were encased. An averment was made that the original cheques have teen produced by the defendant and in that connection, the application under Order XII Rule 14 and order XVI Rule 5 read with Section 151, CPC was made by the plaintiff to get these counterfoils and pay in slips produced from the defendant but the same was rejected by the court holding that these documents are not material to the controversy between the parties. In this view of the matter the learned Civil judge, as stated above, considered only bank statement of the defendant to be relevant for the decision of the suit and as such, that application was allowed as mentioned above. Thereafter an application for review of the order dated September 15, 1976 was submitted by plaintiff in the trial court. The learned Additional Civil judge, by his order dated November 13, 1976 rejected that application. After the rejection of the review application, the plaintiff -petitioner submitted another application under Section 151, Order VII Rule 18 and Order 13 Rule 2 CPC on December 15, 1976 praying that the plaintiff may be permitted to produce in he evidence the documents mentioned in schedule appended to that application. All these documents are of the bank accounts of Bank of Rajasthan Limited, High Court Road, Jodhpur Branch and Bank of Baroda, Sojati Gate, Jodhpur Branch. In para 5 of the application, it has been stated that these documents are for the purpose of rebutting the evidence led by the defendant. No written reply was submitted to this application by the defendant non -petitioner. After hearing arguments, learned Additional Civil Judge rejected the application with costs amounting to Rs. 40/ - (Rs. Forty only) by his order dated July 15, 1977.

(3.) I have heard Mr. Trilok R. Rathi for the plaintiff -petitioner and Mr. I.C. Maloo for defendant -non -petitioner at considerable length and have gore through the record of the case.