MUHAMMAD ABDUL AZIZ Vs. MUHAMMAD ABDUL JALIL

JUDGEMENT

(1.) This and the connected appeals arise out of ten suits brought by the plaintiff- appellant under Section 165 of the Agra Tenancy Act for settlement of accounts, the plaintiff being one of the co-sharers and the defendant being a co-sharer who had collected the profits. Five of the suits were filed so far back as 1907. In those suits the plaint was rejected by the Court of First Instance, but upon an application for revision to the Board of Revenue the order of the Court of First Instance was set aside and the cases were remanded to that Court for trial. In all the ten cases the defendant was called upon to produce the accounts of the collections admittedly made by him. Repeated orders were made for the production of the accounts but they were never complied with. Under these circumstances very slight evidence would have been sufficient to prove the plaintiff s claim. The plaintiff, having repeatedly failed to obtain from the defendant the accounts of the collections admittedly made by the defendant, had to give some prima facie evidence of the amounts so collected. It appears that he made an application to the Court asking that the patwari s records (that is the siahas), in which the amounts realised by the defendant were entered and in which the gross rental was to be found, should be examined by a Commissioner and a statement prepared showing the amounts actually collected. The Court made an order to that effect and directed the Tahsildar to have a statement prepared. It was reported by the Superintendent of the Collector s record room that this would entail an examination of a number of records relating to a number: of villages, and that, therefore, the examination of the records in the manner suggested would be undesirable. Upon this report being received the Assistant Collector before whom the suits were pending, rescinded his former order and on the 3rd of February 1916 made an order to the effect that the plaintiff should produce copies of extracts from the documents on which he relied. The plaintiff on the 8th of March 1915 made an application to the Court praying that the records might be sent for and upon their being received a Commissioner should be appointed to prepare a statement of the amounts collected by the defendant. This application was made under the provisions of Order XIII, Rule 10, of the Code of Civil Procedure. That rule provides that the Court may send for records on its being satisfied that the records are material to the suit in which the application for the sending for of the records is made and that the applicant cannot without unreasonable delay or expense obtain duly authenticated copies of the records or a portion thereof. In the present case it was distinctly stated that the obtaining of copies would entail heavy expense and cause considerable delay. The Court did not consider these matters but simply refused to send for the records and ordered, the plaintiff to produce copies. The plaintiff having been unable to do so, the suits were dismissed. Upon appeal the order of dismissal was affirmed, and second appeals to this Court were dismissed under Order XLI, Rule 11, of the Code of Civil Procedure.

(2.) We have examined the record in this case and have satisfied ourselves that there has been no proper trial of any of the ten suits from which the ten appeals before us arise. As we have, already said, the Court did at first direct that the records should be examined and a statement of the amounts collected by the defendant should be prepared. The Court cancelled that order and when the plaintiff subsequently applied for sending for the records on the grounds, we have already stated, the Court did not apply its mind to the matter alleged but summarily rejected the application. The result was that there was no proper trial of the suits and the plaintiff has been deprived of his share of the profits which the defendant admittedly collected. It was to a great extent due to the omission of the defendant to produce his accounts that the plaintiff was obliged to ask the Court to send for the records showing the amounts collected by the defendant as entered by the patwari in his accounts. We are of opinion that the oases not having been properly tried should go back to the Court of First Instance for trial. As regards five of the appeals, namely Nos. 117, 118, 119, 120 and 125, it is contended on behalf of the respondent that the Board of Revenue was not competent to entertain an application for revision in any of these oases and its order remanding the cases to the Court of First Instance was ultra vires and reliance is placed for this contention on Section 185 of the Agra Tenancy Act and on the ruling of this Court in Musammat Naraini v. Musammat Parsanni 2 A.L.J. 331 : A.W.N. (1905) 119. In the later case of Thakur Damber Singh v. Sri Kishun Das 2 Ind. Cas. 377 : 6 A.L.J. 552 : 31 A. 445 it was observed by the learned Judges that the ruling last referred to must be taken to have been overruled by the decision of the Full Bench in Zohra v. Mangu Lal 28 A. 753 : 3 A.L.J. 569 : A.W.N. (1906) 223. That being so, we think that the Board of Revenue had jurisdiction to entertain the applications for revision presented to it in these five cases.

(3.) We accordingly allow these appeals, set aside the decrees of this Court and of the Courts below and remand the cases to the Court of First Instance under Order XLI, Rule 23 of the Code of Civil Procedure, through the District Judge, with directions to re-admit the suits under their original numbers in the register and to try and dispose of them according to law. Costs here and, hitherto will be costs in the cause.