RAMA PRASAD Vs. RAMESHWAR LAL

JUDGEMENT

(1.) This is an application in revision under Section 115, Civil P.C., arising out of a proceeding under the Encumbered Estates Act. The applicants in this Court were the applicants in that proceeding. The Collector passed an order upon their application in due course and submitted it for decision to the Special Judge of the Second Grade at Ghazipur. A notification under Section 9, Encumbered Estates Act, was issued in due course and the creditors of the applicants who were invited to put in their claims filed their written statements. One of them was the opposite party, Rameshwar Lal. He was shown in the application under the Encumbered Estates Act as a creditor and if; was admitted that a sum of Rs. 500 had been borrowed from him by the applicants. In his written statement he claimed a sum of Rs. 746-15-6 with past and future interest on the basis of bahi-khata account. He alleged however that a sum of Rs. 500 had originally been borrowed from him by the applicants in Sambat 1988 and in the year 1934 there was an accounting between the parties and it was found that a sum of Rs. 746-15-6 was payable by the applicants who accordingly executed a fresh pronote for that amount on 30th January 1934. It was further alleged that the pronote so executed had been lost and hence the claim wag being made on the basis of bahi-khata antrioa. Extracts from the account books wore filed in due course along with the written statement and the rokar bahi was filed fit some subsequent stage. Under Section 10, Sub- section (2) it is incumbent upon a claimant to produce all documents upon which he relies before the Special Judge along with his written statement or on some later date or dates to be specified by the Special Judge from time to time in that behalf. Under Clause (3) of the same Section if the document upon which a claimant relies happens to be an entry in any book the claimant must produce the book before the Special Judge together with a copy of the entry on which he relies. The Special Judge shall there, upon mark the book for the purpose of identification and after examining and comparing the copy with the original shall return the book to the claimant, Clause (4) of the same Section provides the penalty which may be imposed upon the claimant if he fails to produce the account book and a copy of the entries on which he relies in accordance with the two clauses mentioned above. Clause (4) runs as follows: If any document in the possession or under the control of the claimant is not delivered or produced by him as required by this Section the Special Judge may refuse to receive it in evidence on behalf of the claimant at the investigation of the case,

(2.) It appears that the opposite party in this case did not obtain the permission of the Special Judge to produce the rokar bahi at some date subsequent to the one on which he filed his written statement. It does not appear however that the Special Judge refused to receive it in evidence as provided for by Clause (4) of Section 10. The rokar bahi remained on the record of the case; but when the learned Special Judge proceeded to deliver his judgment he refused to take it into account on the ground that it had not been produced along with the written statement as required by Section 10, Clause (3). Having thus rejected the account book, the learned Special Judge proceeded to hold that there was no evidence to prove the fact alleged by the opposite party that there had been an accounting between the parties in the year 1934 and in consequence thereof a fresh pronote for Rs. 746-15.6 had been executed by the applicant. It is admitted that the rokar bahi contains entries which clearly establish the fact. The learned Special Judge finally held that the opposite party's claim was barred by time as pleaded by the applicants inasmuch as it had been proved that there was a renewal of the original loan as alleged by the opposite party. Taking that view of the case the learned Special Judge dis. missed the opposite party's claim. The opposite party appealed from that judgment and the learned District Judge, Ghazipur found upon the basis of the rokar bahi that the facts alleged by the opposite party which clearly brought the claim within limitation and proved beyond any doubt that them was a renewal of the original loan in the year 1934 had been fully established. He consequently allowed the appeal and decreed the claim. Hence the present application in revision.

(3.) Having heard learned Counsel for the applicants and having fully considered all the facts of the case, I find that there is no force in this application. The only ground Saken by the applicants which need be seriously considered is that the lower Appellate Court had no jurisdiction to admit into evidence the rokar bahi tendered by the opposite party which had not been produced along with the written statement as required by Section 10, Clause (2), Encumbered Estates Act. I do not find much force in this contention because the power given to the Special Judge to refuse to receive such a document in evidence is discretionary and not mandatory. In the present case, it may further be pointed out that when the rokar bahi was produced before the learned Special Judge he did not exercise his discretion to refuse to receive it in evidence as contemplated by Clause (4) of Section 10. Having failed to exercise his discretion at that stage I do not think it was open to the learned Special Judge to refuse to take it into account when deciding the case. In any case even if it is assumed that there was some irregularity committed by the lower Appellate Court in relying upon the rokar bahi as a piece of evidence, I do not think that it was material enough to justify interference in revision. The lower Appellate Court had the same discretion under Clause (4) of Section 10 which the learned Special Judge had and seeing that the latter had not exercised his discretion to refuse to receive the rokar bahi in evidence, I think it was open to the lower Appellate Court to admit it in evidence and to rely upon it.