1. The plaint filed by the petitioner, in which he claimed to recover Rs. 3,908-11-6 from the defendant, was ordered to be rejected with costs by the learned Civil Judge on 30-6-1953. An application made by the plaintiff for setting aside the said order and for restoring the suit to the file was dismissed on 25-7-1953 by the same learned Judge. It is against this later order that the present revisional application has been filed.
2. it appears that the plaintiff was ordered to file an extract of his accounts by the learned Judge on 4-6-1953. The suit has been filed on 18-4-1953. On 16th June the plaintiff purported to produce the relevant extracts, but they were not duly verified. That is why the suit stood adjourned to 30th June. On 30th June the plaintiff was unable to attend the Court owing to floods.
The learned Judge did not grant an adjournment to the plaintiff and rejected the plaint because he had not complied with the order issued against him. When the application for restoration of the suit was made, the learned Judge took the view that the plaintiff had not shown sufficient or reasonable cause for interfering with the earlier order.
3. Mr. Sukthankar for the petitioner contends that if the plaintiff had failed to file the extracts from his account books under Order 7, Rule 17, Civil P. C., the only penalty which could be imposed on the plaintiff was not to allow the said documents to be produced at a later stage of the hearing of the suit. That appears to be clear from the provisions contained in Order 7, Rules 17 and 18. If an authority were necessary in support of this proposition, reference, may be made to the decision -- 'Gopal v. Vishnu', 22 Bom 971 (A).
The learned Judge, however, appears to have thought that the failure of the plaintiff to Pro-duce the extracts from his books of account was not only a failure to comply with the provisions of Order 7, Rule 17, but it was a failure to obey the order issued by the Court. Technically the learned Judge may be right. But the penalty imposed by the learned Judge even on this technical view seems to me to be excessively severe.
The claim made by the plaintiff is a substantial claim of Rs. 4000/-, and if under the Code of Civil Procedure for his failure to file the extracts in proper time the only penalty was that he would be called upon to prove his claim without the extracts, then it seems to me the learned Judge should not have taken recourse to dismissing the suit altogether on .the ground that the plaintiff had not complied with the order passed by the Court to produce the necessary extracts.
4. in that view of the matter, I must set aside the order passed by the learned Judge refusing to restore the suit to file and direct that the order rejecting the plaint should itself be set aside and the suit should be set down for hearing on the merits and should thereafter be disposed of in accordance with law.
5. The application accordingly succeeds and the rule is made absolute. There will be no order as to costs.
6. Rule made absolute.