NANDO LAL ROY Vs. BASERALI

JUDGEMENT

(1.) This is an appeal against an order of the District Judge of Backergunj imposing a fine upon the appellants under Order XVI, Rule 12, under the following circumstances.

(2.) A proceeding was held against a Pleader Mokund Lal Dey who was alleged to have acted as manager of the appellants and their co-sharer, one Tarit Bhusan Roy. In the course of the proceedings, the appellants were summoned to produce certain documents. On the 20th June 1917 the appellants put in a petition stating that the documents were not with them but were with their co-sharer, Tarit Bhusan, and that consequently they were unable to produce them. It appears that the Ijmali officers of the appellants and Tarit Bhusan, viz., Srinath Roy Chowdhuri and Hira Lal Ganguli, were also cited as witnesses, but they did not appear. Proclamations were issued (so far as the appellants are concerned) under Order. XVI, Rule 10. The appellants thereupon filed another petition on the 22nd January 1918, in which they repeated that the documents were not with them. This petition was supported by the affidavit of one Beni Madhab Roy, the cashier of the appellants, and it was stated therein that the papers called for were not with the appellants, but were with Tarit Bhusan, that the latter was concealing all the papers relating to the estate owing to a misunderstanding between him and the appellants and that the papers were in the possession or custody of the officers and clerks of Tarit Bhusan Roy. This was denied in the affidavit (dated the 23rd January) of Rash Behari Bhattaoharji, who it appears is a servant of Tarit Bhusan. He stated that all the pipers of the joint Mahals had been in the possession of Srinath Roy Chowdhuri and Hira Lal Ganguli who are the record-keepers of the joint estate and further that certain papers (specified therein) written and signed by the Pleader Mokund Lal Dey were taken from the joint record-keepers by the appellants officer Kishori Mohan Eundu, as shown by the receipt book of documents.

(3.) The learned District Judge held that the appellants had failed to satisfy him that the documents could not be produced by them and accordingly imposed a fine of Rs. 250 on each of the appellants.