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Patel Kalidas Devraj and ors. Vs. Patel Kuverji Asharam - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 610 of 1964
Judge
Reported inAIR1969Guj149; (1969)GLR535
ActsCode of Civil Procedure (CPC), 1908 - Sections 115 - Order 13, Rules 8 and 9; Indian Registration Act; Evidence Act - Sections 139
AppellantPatel Kalidas Devraj and ors.
RespondentPatel Kuverji Asharam
Appellant Advocate C.C. Gandhi, Adv.
Respondent Advocate P.M. Rawal, Adv.
DispositionPetition allowed
Excerpt:
- - the said order 13, rule 9, reads as follows :9 (1) any person, whether a party to the suit or not, desirous of receiving back any document produced by him in the suit and placed on the record shall, unless the document is impounded under rule 8, be entitled to receive back the same, (a) where the suit is one in which an appeal is not allowed, when the suit has been disposed of, and (b) where the suit is one in which an appeal is allowed, when the court is satisfied that the time for preferring an appeal has elapsed and that no appeal has been preferred or, if an appeal has been preferred, when the appeal has been disposed of:.....that the whole record should be returned. when a witness is summoned to produce a document, the document produced must be kept on record in order to enable the party calling for it to prove it at a subsequent stage. it is ordinarily not proved on the very day. first of all, a document which is called for to be produced by a witness must be proved and kept on record. the question of returning that document comes later. when the document is returned, the procedure laid down in order 13, rule 9, civil procedure code, must be followed. the said order 13, rule 9, reads as follows :--'9 (1) any person, whether a party to the suit or not, desirous of receiving back any document produced by him in the suit and placed on the record shall, unless the document is impounded under rule 8, be.....
Judgment:
ORDER

V.B. Raju, J.

1. The applicants in revision filed a suit for redemption of a mortgage said to have been executed by their ancestor in 1899 in favour of the ancestor of the opponent. According to them, a copy of the document was produced in another suit and the record was In the High Court, The lower Court allowed a witness from the High Court to be called to produce a copy of the mortgage deed said to have been produced in suit No. 109/59. When the witness came from the High Court and produced the whole record, the Civil Judge (J.D.) at Dhran-gadhra passed an order that the whole record should be returned. When a witness is summoned to produce a document, the document produced must be kept on record in order to enable the party calling for it to prove it at a subsequent stage. It Is ordinarily not proved on the very day. First of all, a document which is called for to be produced by a witness must be proved and kept on record. The question of returning that document comes later. When the document is returned, the procedure laid down in Order 13, Rule 9, Civil Procedure Code, must be followed. The said Order 13, Rule 9, reads as follows :--

'9 (1) Any person, whether a party to the suit or not, desirous of receiving back any document produced by him in the suit and placed on the record shall, unless the document is impounded under Rule 8, be entitled to receive back the same, --

(a) where the suit is one in which an appeal is not allowed, when the suit has been disposed of, and

(b) where the suit is one in which an appeal is allowed, when the Court is satisfied that the time for preferring an appeal has elapsed and that no appeal has been preferred or, if an appeal has been preferred, when the appeal has been disposed of:

Provided that a document may be returned at any time earlier than that prescribed by this rule if the person applying therefor delivers to the proper officer a certified copy to be substituted for the original and undertakes to produce the original if required to do so:

Provided that no documents shall be returned which, by force of the decree, has become wholly void or useless.

(2) On the return of a document admitted in evidence, a receipt shall be given by the person receiving it'

In fact, the applicants are anxious to prove the document if the document Is admissible in evidence and is properly proved, it is to be admitted in evidence. If it is not admissible in evidence or is not properly proved, then it has got to be rejected. Even after it is refected, it has to be returned under Order 13, Rule 9, Civil Procedure Code, by following the procedure laid down therein. All this has not been done. There is, therefore, a material irregularity in the exercise of jurisdiction, because the document in question is supposed to be a copy of the mortgage deed of 1899 before the Indian Registration Act and the original is supposed to be in possession of the opponent mortgagee, and the copy is said to have been produced by the opponent himself in the other suit All these questions should have been gone into. The document cannot be returned immediately after it is produced by a witness; who comes under section 139 of the Indian Evidence Act

2. The application is, therefore, allowed, and the lower Court is directed to keep Ex. 18/1 produced by the clerk of the High Court and return it only after following the procedure laid down in Order 13, Rule 9, Civil Procedure Code, and for that purpose to call the witness from the High Court again. Ex. 18/2 is a public document and it is open for any one to produce a certified copy thereof, and moreover it is only an application by an advocate. There is therefore no need to keep it on record.


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