1. This is a first appeal by the plaintiff from an order of remand by the lower appellate Court. The order is:
I remand the case to the lower Court for decision after giving an opportunity to the plaintiff to prove the document (bahi) as allowed by Section 145, Evidence Act, and Order 7, Rule 18, Clause 2.
2. The facts are that the plaintiff sued for recovery of Rs. 496 and interest thereon. The plaint alleged that the plaintiffs were usufructuary mortgagees under a mortgage deed dated 1st June 1927, for a consideration of Rs. 2,200, out of which Rs. 409 had been paid to the defendant for execution a deed and the balance of Rupees 1,713 was left for payment of debts. As the defendant failed to give the plaintiff possession, the present suit was brought for recovery of Rs. 490 and interest. The defence was that the Rs. 490 had not been received. Now the written statement admitted in para. 7 of the additional pleas that the defendant had made an acknowledgement before the Sub-Registrar that he had received this sum of Rs. 490. He alleged that his admission before the Sub-Registrar was incorrect and that he had not really received this money but that he was going to receive it subsequently when the plaintiff got possession of the sir and khudkasht. Under Section 31, Evidence Act, an admission is not conclusive proof; but the onus of proving that the admission is incorrect lies on the person who desires to persuade the Court that this is so. Accordingly, therefore, the Munsif treated the burden of proof as being on the defendant and the defendant produced his evidence first. When the defendants were giving evidence in cross-examination, the plaintiff desired to produce an account book of the plaintiff in which it was alleged that there was a writing by the defendant admitting receipt of Rupees 468 from the plaintiff. The other amount of Rs. 22 was alleged by the plaintiff to have been paid for the purchase of the stamp on the date of execution of the document, and in evidence the defendant admitted that the plaintiff had purchased the stamp paper for Rs. 22. There was therefore only the sum of Rs. 468 remaining at issue.
3. Now the lower Court has pointed out that as defendant had made a statement in his examination-in-chief that he did not receive this Rs. 468, it was open to the plaintiff to tender the previous statement in writing by the defendant in cross-examination to contradict him under Section 145, Evidence Act. This is what the plaintiff desired to do and the Munsif refused to allow the plaintiff to produce the previous statement in writing. Learned Counsel has been unable to satisfy me that the order of the Munsif could be in any sense correct. The argument of learned Counsel was that apart from Section 145, Evidence Act, there was an obligation of the plaintiff under Order 7, Rule 14 to produce his books. The plaintiff sued on his mortgage-deed which was produced. Even supposing that the account books of the plaintiff come under Order 7, Rule 14(2) as documents as evidence in support of his claim, the penalty is contained in Order 7, Rule 18(1) which states that the documents which ought to be produced when the plaint is presented or to be entered in the list to be added or annexed to the plaint, and which are not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on behalf of the plaintiff at the hearing of the suit.
4. Sub-rule 2, Rule 18, provides that nothing in this rule applies to documents produced for cross-examination of the defendant's witnesses, or in answer to any case set up by the defendant. Now the use to which the plaintiff desired to put his account books was the cross-examination of the defendant himself as a witness for the defence. In my opinion the penalty for the non-production of a document under Order 7, Rule 14, is contained in Rule 18(1) and, Sub-rule (2) is an exception to Sub-rule (1). Accordingly therefore on that view it was open to the plaintiff to use the document, his account book, for the cross-examination of the defendant and the Court below is perfectly right. No further point was argued. For these reasons I dismiss this first appeal from order with costs.