Kartar Chand vs Sohan Singh

P.C. Pandit, J.—This is a defendant''s revision petition against the order of the trial Judge closing his case.

The facts giving rise to this petition are these: A suit was brought by Sohan Singh against Kartar Chand for the recovery of Rs. 8,820/- on the basis of a pronote alleged to have been executed by the defendant on the 8th September, 1968.

The suit was contested by the defendant on a number of pleas, but his main defence was that the said pronote bore stamps which were not even issued on the date of its alleged execution, i.e. the 8th September, 1968. The stamps were also ante-dated and they contained material alterations.

On the pleadings of the parties, issues were framed and one of them was whether the pronote was not properly stamped. Thereafter, evidence was recorded.

On the 20th August, 1971, an application was made by the defendant to the trial Court alleging that the pronote was a false document and did not bear the stamps issued, on the date of its alleged execution, by the Government Controller of Stamps, Issue Officer, Nasik Road, Nasik in order to determine the matter, the stamps on the pronote were to be got examined by the said Government Controller of Stamps Nasik, who would report as to when the stamps affixed on the pronote were issued by them. The prayer made in the application was that the pronote and the receipt be sent to the said Controller of Stamps at Nasik or any other Government Stamp Issue Office to ascertain as to whether the stamps on the pronote and the receipt were issued by the Government prior to 8th September, 1968, and further as to when the same were issued. The necessary expenses for that purpose would however, be deposited by the defendant.

This application was opposed by the plaintiff and on the 21st October, 1971, it was rejected by the Court after observing:

The defendant has not so far led evidence and in my opinion, it is pre-mature a stage when this prayer cannot be considered and acceded to. I therefore, see no jurisdiction for allowing this application at this stage and the same is hereby rejected.

Thereafter, some more evidence was led by the defendant and then on the 16th December, 1971, another application was made by him for the same purpose, for which he had filed the first one. It was, however, added, in the second application that it was being given as prima facie evidence had come on the record that the defendant never borrowed the alleged money and was not in need of it, as he had sufficient resources of his own and further that the pronote was not a genuine document.

This application was also contested by the plaintiff and on the 18th December, 1971, the following order was passed thereon:-

I have heard the Learned Counsel for the parties and have considered the aforesaid prayer and the objections thereto. A similar application was made by the defendant earlier and the same was dismissed vide order dated 21st October, 1971. In my considered opinion, the defendant has been adopting dilatory tactics to prolong these proceedings unnecessarily in this case and in fact he has been adopting every possible device for putting one or the other hurdle in the early disposal of his case. However, in the interest of Justice, I am inclined to allow this application subject to the condition that the defendant shall examine any one from the aforesaid office either at Nasik or any other Government Stamp Issue Office to prove his version of the case at his own responsibility positively on the next date and of course, he can take necessary assistance from the Court by depositing necessary process fee and diet money of the concerned witness and taking out summons Dasti. To come up for defendant''s remaining evidence on 12th January, 1972.

On the 20th December, 1971, another application was made by the defendant, in which it was stated that the Court had allowed the application of the defendant to send the pronote in suit for examination by the General Manager, India Security Press, and Controller of Stamps at Nasik, on the 18th December, 1971. An amount of Rs. 140/- besides money order fee, had been separately deposited in the trial Court by the defendant for that purpose. Rs. 100/- represented the examination fee for the four stamps on the pronote and the fifth on receipt and Rs. 40/- as commission fee for the statement of the General Manager regarding his report on interrogatories attached, which might be sent along with the "letter of request for enquiry" for his statement.

It was stated at the bar by the Learned Counsel for the petitioner that from the 18th December to the 31st December, 1971, the trial Judge was on leave, but this fact could not be verified. On the 5th January, 1972 another application was made by the defendant for the same purpose, in which it was mentioned that in accordance with the rules of examination and report by the General Manager, India Security Press, and Controller of Stamps, Nasik, the document in question had to be sent to them for examination and money order for the examination fee was to be sent direct by the Court. No private individual could get the same examined, except the Court. An amount of Rs. 140/- had already been deposited in Court, but the same had not been sent to them up-to-date A prayer was made that the documents and the money be sent to them. But in case, the Court was of the view that there was likelihood of the documents being tampered with, then the General Manager should be summoned to the Court for the purpose. An alternative prayer was also made that Dasti summons be given to the defendant for the service of the General Manager so that the latter should personally come to the Court and examine the documents and also bring "the material and relevant data for examination of the stamps".

We have it on the record that the summons were issued by the Court on the 6th January, 1972, for the service of the General Manager, and the date fixed in the case, as already mentioned above, was the 12th January, 1972 On the 10th January, 1972, a telegram was received from the General Manager, and it was in these terms:

14845 Summons dated sixth instant received today AAA stamp expert already Engaged with another Court case on Twelfth AAA. send Original Documents here for Examination and necessary Fees AAA Letter follows.

The letter referred to in the telegram was as follows:-

Copy by post in confirmation to the Sub-Judge, 1st Class, Garhshankar District Hoshiarpur (Punjab). It is regretted that it is not possible to send our Stamp Expert for attending the Court at Garhshankar on 12th January, 1972, as our Expert is already engaged with some other Court case on 12th January, 1972, here. You may, therefore, kindly send to us the original documents and also prescribed fees as laid down in our attached printed letter for examination.

Alongwith the letter, there was a printed document, the relevant portion of which was:

With reference to your letter No. dated the I have to state that information regarding stamps can only be given to, and at the request of the (a) Police (b) Reserve Bank of India (c) Magistrate or Officer of the Court before whom the case is to be tried. The date on which the document purports to have been executed should be noted in the letter of enquiry and the fee for examination, determined in accordance with schedule. I below (excluding money order commission), should accompany the enquiry together with the document.

If evidence is required in connection with the dates of, and differences between stamps, such evidence is taken in my office here by one of the local Courts on commission issued by the court before whom the case is being tried. The prescribed fee for examination on commission is set out in schedule II below. These fees are payable in cash in advance. If ''State'' is one of the parties in the case, no fees will be charged by this department.

On the 12th January, 1972, the date fixed in the case, the impugned order was passed after recording the statement of the defendant on the merits of the case. The sail order is in these words:

Statement of the defendant has been recorded. In accordance with the order dated 18th December, 1971, the defendant has failed to produce the remaining evidence, although he was afforded full assistance by the Court in this respect The Learned Counsel for the defendant has requested that further time may be granted and that the pronote and the receipt in dispute may be sent to the India Security Press at Nasik for necessary verification about the stamps on the pronote in dispute. However, I feel that the defendant has already been afforded more than reasonable opportunity in the said respect. The case has since gone old on account of dilatory tactics adopted by the defendant in order to prolong these proceedings unnecessarily. Accordingly, I see no justification for allowing the said prayer of the defendant at this stage and the remaining evidence of the defendant stands closed. To come up for plaintiff''s evidence in rebuttal on 19th January, 1972.

Against this, the present revision petition has been directed.

From a narration of the facts given above, it is clear that on the 18th December, 1971, when the learned Subordinate Judge passed the order referred to above, no opportunity had been given to the defendant to get service effected on the General Manager India Security Press, and Controller of Stamps, Nasik The relief which the defendant was claiming, was put in his first application dated the 20th August, 1971 That application had been dismissed by the trial Judge on the ground that it was premature. When the defendant repeated his prayer in his second application, dated the 16th December, 1971, the order dated the 18th December, 1971, was made. It is not to be forgotten that the person, who had to give evidence, was the General Manager of the India Security Press and Controller of Stamps at Nasik. The defendant had to put in the required expenses, which he had to do under the rules, but it is not understandable as to why on the very first occasion, when this prayer of the defendant was going to be examined by the learned Judge, a condition had to be imposed on him that he should bring that witness on his own responsibility positively on the next date, i.e. the 12th January, 1972. It is true that the order had also mentioned that the defendant could take necessary assistance from the Court by depositing the requisite process fee and diet money of the concerned witness and taking out Dasti summons But what is objectionable is that on the very first occasion, when such a prayer is made, the defendant was asked to bring the witness of such a nature on his own responsibility and on the next date of hearing. One can conceive of cases where several attempts had already been made to serve a, witness and he had remained unserved and the Court came to the conclusion that it was the party, who was summoning him, which was responsible for his non-service and it was further found that the said party was using dilatory tactics, then the Court ordered that the said witness be brought on the responsibility of the party itself. But it was not proper in this instant case to ask the party to produce the witness on his own responsibility and more so a witness of the kind mentioned above, by taking Dasti summons from the Court. I am of the view that the learned Judge had acted in the exercise of his jurisdiction illegally and with material irregularity in making such an order, which had definitely resulted in manifest injustice to the defendant, because, as I have already mentioned above, the case set up by him from the very beginning was that the alleged pronote was a forged document and the stamps affixed thereon were not issued on the date the said pronote was alleged to have been executed. This was the main defence and in order to prove the same, the defendant was making all possible efforts by depositing the process-fee and the diet money of the witness concerned within time and it was not proper to ask him on the very first occasion that he should produce the said witness on his own responsibility and when he had failed to do that, his case was closed. When the order dated the 18th December, 1971, was not a proper and legal one, the result that followed therefrom would be that the impugned order passed thereafter on the 12th January, 1972, would-automatically go.

Even then, let us examine what happened after that date. Necessary expenses for summoning the said witness had been deposited by the defendant on the 20th December, 1971, i.e. within two days of the passing of that order. In spite of that, nothing was done by the Court and even summons were not sent to the witness in the ordinary course. In those cases also where Dasti summons have to be taken by the parties, the Court generally sends the summons in the ordinary way as well. Be that as it may, in the present case, it was the defendant himself, who, on the 5th January, 1972, made an application bringing to the notice of the Court that neither the money nor the documents had been sent to Nasik. It is true that in that application, a prayer, in the alternative, was also made that in case, the Court felt that there was a likelihood of the documents being tampered with, then the General Manager should be summoned to the Court and Dasti summons be given to the defendant for his service, so that the witness could personally come and bring "the material and relevant data for the examination of the stamps." Under the rules of that office, which I have quoted above, it seems to be clear that the documents have to be sent to Nasik for examination and if the person concerned has to be examined regarding that matter, then his evidence has to be recorded on Commission only. I was informed by the counsel for the petitioner that the defendant himself went to Nasik for the said purpose, but the General Manager sent his telegram on the 10th January, 1972, as mentioned above. I am unable to understand as what other efforts could be may by the petitioner for summoning the said General Manager. But in spite of that, on the 12th January, 1972, the impugned order was passed by the learned Judge closing his evidence.

It may be mentioned that three reasons had been given by the learned Judge for making the impugned order. The first was that the defendant "had already been afforded more than reasonable opportunity in the said respect." From what has been mentioned above, even reasonable opportunity had not been given, leave aside more than reasonable opportunity. The second reason mentioned was that the case had gone old on account of the dilatory tactics adopted by the defendant in order to prolong the proceedings unnecessarily. There is no merit in this as well, because the main defence of the defendant, from the very beginning, was that the document was a forged one and the stamps used thereon were not even issued by the Government on the day when the pronote was alleged to have been executed. For proving that, he had done all that was humanly possible for him and, therefore, it could not be said that he was using any dilatory tactics to prolong the proceedings. At any rate, even if a case had become old, a litigant should not be made to suffer for no fault of his. The third reason was that according to the learned Judge, there was no justification for allowing the said prayer of the defendant at that stage. Since I could not understand the implication of the words at that stage. I asked both the counsel as to what the learned Judge had meant by using that expression. They too found themselves in the same difficulty, in which I was, because, admittedly, there was no other stage to grant this prayer of the defendant. That being so, the third ground also fails.

I have already said that the making of the impugned order has resulted in great injustice to the defendant, because he has not bean given a reasonable opportunity of proving his main defence in the case. In passing the said order, the learned Judge has, in my view, acted illegally and with material irregularity in the exercise of his discretion. That being so, I would accept this petition with costs, quash the impugned order and direct the learned Judge to proceed with the case in accordance with law. Parties have been directed to appear before him on the 8th May, 1972, for further proceedings in the case. The office is directed to send the records of the case to the Court below immediately.