Velumurugan Stores. vs Kamadhenu Stores.

This matter has come up for orders on I.A. No. I filed by the petitioners. The petitioners in I.A. No. I have prayed for stay of further proceedings in O.S. No. 744 of 1982 on the file of the XVII Additional City Civil Judge, Bangalore City, pending disposal of the Civil Revision Petition.

This revision petition is taken up for final hearing by consent of both the Advocates.

The order dt. 15-7-1983 passed by the XVII Additional City Civil Judge, Bangalore City, on I.A. No. IV in O.S. No. 744 of 1982 is challenged.

I.A. No. IV was filed by the petitioners-defendants in the said suit for the following request.

"The Hon''ble Court be pleased to issue summons to the IX Income Tax Officer Circle II, Income Tax Office, Bangalore, to produce the files in respect of Kamadhenu Stores and Kamadhenu Garments from the year 1973 till date."

The date of I.A. No. IV is 28-6-83.

The facts as available are that the respondent-plaintiff filed the suit against the defendants, defendant-1 being the partnership firm and defendants 2 and 3 being the partners, for recovery of certain amounts. One of the defendants, Kamadhenu Garments, was the sister concern of the plaintiff-firm, and a sum of Rs. 10,000 was due to petitioner 3 defendant-3 towards salary and bonus. Evidence on behalf of the plaintiff was closed. Evidence of the defendants-petitioners was yet to commence, P. W. 1 in para-7 of his deposition stated that Income-Tax returns of the plaintiff-firm had shown the amount due by defendant-1 petitioner-1. It was elicited that he had not filed copy of the tax returns. When questioned about the aforementioned sum of Rs. 10,000, P.W. I. denied the same being due by the plaintiff to defendant-3 petitioner 3. This is available in para-6 of the cross-examination of P.W. 1.

The learned Civil Judge, has, at the commencement of the impugned order, stated that I.A. No. IV was filed after the closing of the evidence of the parties. It is to be stated here that this statement is incorrect. The petitioners-defendants have yet to enter upon their evidence.

In the affidavit filed in support of I.A. No. IV defendant-2 petitioner-2 has sworn about the said sum of Rs. 10,000 having been shown in the returns submitted by the plaintiff-firm. The learned Civil Judge has not rejected I.A. No. IV on any of the grounds available under Or. XVI R. 1 of the Code of Civil Procedure. He has rejected I.A. No. IV holding that the documents may not be relevant to the question involved in the suit.

It is apparent that the learned Civil Judge appears to be under an impression that I.A. No. IV has been filed after the evidence of the parties had been closed, when that is not a fact. When the learned Civil Judge did not choose to reject I.A. No. IV on the grounds available under Or XVI R. 1 C.P.C, the only question that would be considered by him would be whether the Court was, by any provision in the statute, prohibited from issuing any summons to such a witness calling upon him to bring such a document for production in the Suit. No such provision is available in the Income Tax Act as it is in force though a provision to somewhat this effect was there in the Income Tax Act of 1961. In this context, the Court ought to have taken into consideration S. 162 of the Indian Evidence Act. It has failed to do so. The aforementioned reasons show that rejection of I.A. No. IV by the learned Civil Judge is not based on any sufficient and just cause. The question of relevancy of the document in question has to be gone into after looking into the document and bearing in mind the provision in S. 162 of the Indian Evidence Act.

Hence I allow this revision petition, and set aside the impugned order. I direct the lower Court to issue summons to the said witness named in I.A. No. IV for bringing the document mentioned in I.A. No. IV for being produced in the suit on hand. The lower Court will thereafter, i.e., after the witness appears, consider the question of production of the document in the light of the provisions in S. 162 of the Indian Evidence Act.

No order as to costs.