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Bahadur Thakur Vs. Bata Sahu - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 142 of 1956
Judge
Reported inAIR1958Ori85; 23(1957)CLT468
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115; Orissa Money Lenders Act, 1939 - Sections 9; Orissa Money Lenders Rules - Rules 11 and 12; Evidence Act, 1872 - Sections 114; Debt Law
AppellantBahadur Thakur
RespondentBata Sahu
Appellant AdvocateM.S. Rao and ;M.K.C. Rao, Advs.
Respondent AdvocateG.G. Das, Adv.
DispositionRevision allowed
Cases ReferredRidhikaran Ramadhin v. French Motor Car Co. Ltd.
Excerpt:
.....irrelevant to the case that such an inference cannot be drawn unless the party is asked to produce the document and he fails to do so'.the failure of the plaintiff to produce the account books was rightly taken into consideration by the learned munsif in not accepting the case of the plaintiff and the learned district judge, in my opinion, completely erred in coming to the conclusion that it was not incumbent upon the plaintiff to produce his account books. the court failed to exercise jurisdiction vested in it by law in not rejecting the plaint for non-compliance with rules 11 and 12 of the money lenders act......files revision under section 115 of the civil procedure code against the appellate judgment of the learned district judge of balangir-patna reversing the judgment of the learned munsif of balangir who dismissed the plaintiff's suit.2. the plaintiff filed the suit on a promissory note for rs. 150/- executed by the defendant on 13-5-51 promising to pay the said sum with interest at 12 1/2 per cent per annum. the petitioner-defendant denied the execution of the suit promissory note and receipt of consideration thereunder. he pleaded that he took one purug of paddy from the plaintiff who took two thumb impressions from him -- one on a blank paper and the other on a khata. the defendant repaid the said loan and demanded the return of the paper and cancellation of the entry and the thumb.....
Judgment:

P.V.B. Rao, J.

1. The defendant in a suit files revision under Section 115 of the Civil Procedure Code against the appellate Judgment of the learned District Judge of Balangir-Patna reversing the judgment of the learned Munsif of Balangir who dismissed the plaintiff's suit.

2. The plaintiff filed the suit on a promissory note for Rs. 150/- executed by the defendant on 13-5-51 promising to pay the said sum with interest at 12 1/2 per cent per annum. The petitioner-defendant denied the execution of the suit promissory note and receipt of consideration thereunder. He pleaded that he took one Purug of Paddy from the plaintiff who took two thumb impressions from him -- one on a blank paper and the other on a Khata. The defendant repaid the said loan and demanded the return of the paper and cancellation of the entry and the thumb impression in the khata. The plaintiff did not comply with the request.

3. The plaintiff is admittedly a moneylender. He gave his registration number in the plaint. Rules 11 and 12 of the Orissa Money Lenders Act require that the plaintiff shall, at the time of the filing of the plaint, state in the plaint the particulars of his registration certificate, the amount of his capital & certain other particulars and also file along with the plaint a copy of the extract of the suit debt. Though the plaintiff stated his registration number, he did not comply with the other particulars required to be done by the plaintiff under Rules 11 and 12 of the Money Lenders Act.

4. The learned Munsif by discussing the evidence of the plaintiff and his witness and pointing out the discrepancies in their evidence and taking into consideration the circumstances present in the case came to the conclusion that the plaintiff failed to prove the execution and passing of consideration under the suit document. The learned Munsif also relied upon the appearance of the promissory note Ex. 1 and held that the writing on the handnote appeared to be of recent origin. He also took into consideration the non-production of the book of accounts maintained by the plaintiff.

5. The learned District Judge, on appeal, after a discussion of the evidence in the case set aside all the findings of the learned Munsif. He held that the writing in Ext. 1 did not appear to be recent and that the discrepancies in the evidence of P. Ws. 1 and 2 are not of such importance as not to accept their evidence. He also held that the discrepancies in the sequence of events noted by the Munsif are also not material discrepancies. With regard to the non-production of the accounts, the learned District Judge observed that it was not incumbent on the part of the plaintiff to produce his account books, if any, in support of his claim and as such their non-production could not appropriately create any manner of suspicion as to the bona fides of his claim, especially as the defendant never thought it worthwhile to call upon the plaintiff to produce any such document, and ultimately decreed the plaintiff's suit granting 12 1/2 per cent interest on the loan advanced.

6. Mr. M.K.C. Rao, the learned counsel for the petitioner contends that the judgment of the learned District Judge is not only contrary to law, but also is vitiated by the material irregularity in the exercise of his jurisdiction. He submits that it was the plaintiff's duty in a case like this to produce his account books which could show the truth of his case, especially when the defendant challenged the suit transaction. He contends that it is not necessary for the defendant to summon and ask for the production of the account books, and that the plaintiff himself being a party to suit and knowing that there is an issue with regard to this particular question ought to have produced his account books.

In suport of his contention he relied upon a decision of this Court in Ridhikaran Ramadhin v. French Motor Car Co. Ltd. in AIR 1955 Orissa 60 (A). After reviewing all the decisions of the Privy Council and some of the decisions of the Federal Court, it was held in that case by a Division Bench,-

'If a party to a case does not produce a document which is the best evidence in support of his contention, an inference can be drawn that, if produced, it would be against his contention. It is only in the case of non-production of documents irrelevant to the case that such an inference cannot be drawn unless the party is asked to produce the document and he fails to do so'.

The failure of the plaintiff to produce the account books was rightly taken into consideration by the learned Munsif in not accepting the case of the plaintiff and the learned District Judge, in my opinion, completely erred in coming to the conclusion that it was not incumbent upon the plaintiff to produce his account books. In this case, there is another special fact which is to the effect that the defendant categorically asserted that he gave his thumb mark in the Khata book evidencing the borrowing of one Purug of Paddy. To belie this assertion, the plaintiff ought to have also produced that Khata book.

7. In my opinion, the reasons given by the learned District Judge to set aside the findings of the trial Court which gave findings after seeing the witnesses and taking into consideration the non-production of the documents and having had an opportunity of looking at the suit document at the very earliest opportunity, are not compelling reasons sufficient to set aside the findings.

8. Mr. G.G. Das, the learned counsel for the opposite party strongly contends that I have no jurisdiction to interfere in this matter under Section 115 of the Civil Procedure Code. His contention is that the judgment of the learned District Judge might have been contrary to law, but it is not a judgment which deals with any question relating to jurisdiction. Under Clause (c) of Section 115, this Court can interfere in revision, if it finds that there is any illegality in the exercise of jurisdiction by the lower appellate Court. The lower appellate Court, according to me, in deciding the case acted illegally in exercise of jurisdiction in saying that the non-production of documents was not incumbent upon the plaintiff. This matter is one in relation to which also, for the following reasons, which I would state in detail, as those matters were not dealt with in the judgments of the two Courts below, the judgment of the learned District Judge is wrong on a question of jurisdiction. The contention taken before me by the learned counsel for the petitioner is that the plaint should not have been received and registered inasmuch as the plaintiff did not state the particulars required to be stated under Rules 11 and 12 of the Money Lenders Act. The Court according to the contention of the petitioner should have rejected the plaint instead of trying the suit. The Court failed to exercise jurisdiction vested in it by law in not rejecting the plaint for non-compliance with Rules 11 and 12 of the Money Lenders Act.

The learned counsel for the opposite party to this contention replied that it is only when time is given for complying with the requirements that the Court can reject the plaint and not otherwise. But Order 7, Rule 11 of the Civil Procedure Code deals only with the four items of non-compliance on which a plaint shall be rejected. The other requisites, non-compliance of which may entitle a rejection, are not contemplated in Order 7, Rule 11 C. P. C. The Money Lenders Act would practically become nullified if money-lenders are allowed to institute suits without following and complying with the rules made thereunder and if Courts go on decreeing their suits in spite of the non-compliance. The Money Lenders Act enjoins that no Court shall pass a decree on unsecured debts at more than 12 per cent, simple interest. The learned District Judge acted illegally in exercise of jurisdiction in passing a decree for 12 1/2 per cent. Consequently, I am of opinion that in this case I have jurisdiction to interfere and set side the judgment of the appellate Court.

9. For the reasons already stated, the judgment of the appellate Court has not givenany compelling reasons why the findings of thetrial Court should be set aside. I am of opinionthat the learned Munsif, for the reasons givenby him in his judgment, was justified in dismissing the plaintiff's suit. The plaintiff's suit alsosuffers from the non-compliance with the requirements of the Orissa Money Lenders Act.The non-production of the accounts, under thecircumstances of the case, is a serious mistakeon the part of the plaintiff and the trial Courtwas entitled to draw the presumption that ifproduced, the accounts would be against theplaintiffs case. The revision is therefore allowed, the judgment of the learned District Judgeis set aside and the judgment and decree of thetrial Court are restored. The petitioner willhave his costs. Hearing fee is two gold mohurs.


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