Prem Lata Malhotra vs Shiv Nath Sharma

Bilal Nazki, J.—Two suits are being tried together -before the City Judge (Sub Judge), Jammu, One Mr. Vinod Abrol Law Officer, Slate

Financial Corporation, J. & K.,Jammu, appeared as witness. The list of witnesses given earlier by the plaintiff had showed one withness as,

Concerned Clerk, State Financial Corporation with record of loan, mortgage deed including all documents pertaining to Shandy Hotel, Bankey

Behari Market. Jammu.

The summons were issued and one Mr. Vinod Abrol appeared for State Financial Corporation. Jammu. When his statement was being

recorded, questions were asked by the plaintiff counsel regarding a loan transaction between the Slate Financial Corporation and the plaintiff for

grant of loan of Rs, 12 Lakhs. The witness deposed that mortgage deed for ensuring the repayment of loan was executed between the State

Financial Corporation and the plaintiff in January 1984. He deposed before the Court that he has brought the original motgage deed. This was

objected to by the learned counsel for the defendants. The learned counsel for the Parties thereof sought lime to argue the matter.

The learned Judge after hearing the arguments came to the conclusion that the witnesses can be allowed to produce the copy of the documents

in the Court.

I have heard the learned counsel for the parties and examined the record. While hearing this revision by which the order of the learned Sub-

Judge has been challenged, the counsel for the petitioner submits that all documents have to be furnished before the settlement of issues in

accordance with Order .10 (Order 13), Rule 1 Rule 2 gives a discretion to the Courts to allow production of any documents subsequent to the

framing of the issues only if it is shown that the document in quesilon was not in possession or power of any parly. The counsel further submits that

since the mortgage deed was admittedly registered, acopy thereof could have been obtained by the plaintiff and produced in the Court.

I am afraid, this argument cannot be accepted in view of the law laid down by this Court reported in AIR 1964 J&K 59 where Justice S,

Murtaza Fazl Ali as His Lordship then held, ""The words ""possession or power"" imply that the document in question must be in actual physical

possession or control of the plaintiff. It would not include a document over whuich the plaintiff has no control and which can be produced only

through the intervention of the Court by catling a witness and asking him to produce a document"".

The present case is squarely covered by the judgment where the document was not in actual physical possession or control of the plaintiff but

could only be produced by summoning a witness for production of document. The plaintiff had done exactly what was required of him, he has

requested the Court to summon the witness for production of a document, however, I agree with the learned counsel for the petitioner that there is

no provisions of law by which the Court could order the witness to produce a copy and take back the document. The only provision in the CPC is

contained in Order 9, Rule 30. It gives power to the Court to return a document in case certain conditions are met. The witness in my opinion who

produced the document had no authroity under law to resist the retention of the document by the Court, therefore, the learned trial Court was not

right in ordering the return of the document to the witness on his mere asking. The right approach would have to leave the document to the Court

and subsequently move an application under Rule 9 of Order 13 and if the applicant was able to satisfy the conditions laid down in Order 13, the

Court could return the original document after taking a copy in terms of Rule 9(b)(ii).

For these reasons, 1 dispose of both the revisions with the following direction :-

The impugned order is bad to the extent it allows witness to take back the document. The document can be taken in evidence and retained by the

Court, however, if the witness wants the document back, he shall move an application in terms of Rule 9 of Order 13.