S.K. Mal Lodha, J.
1. This revision application has been preferred by the plaintiff against the order of the leaned Additional civil Judge dated July 15, 1978 by which his application dated December 16, 1976 under Section 151 Order VII Rule 18 and Order XIII Rule 2 CPC, was dismissed
2. The plaintiff-petitioner instituted a suit against the defendant non-petitioner for the recovery of Rs. 5000/- on August 8, 1967. The defendant contested the suit vide written statement dated December 18, 1967. The claim of the plaintiff-petitioner was dented. The defendant-non-petitioner preferred a counter claim for Rs. 3200/- consisting of Rs. 303165 as the principal and Rs. 168.35 (sic) account of interest according to mercantile usage The trial court framed issues on Sept, 9, 1969. Issue No. 4 related to courier claim. The burden of some of the issues, was on he plaintiff and in respect of some issues, the burden was placed on the defendant. It may be mentioned that the burden of issue No. 4 was on the defendant. The plaintiff petitioner led his evidence first in support of issue, the burden of which was placed upon him. After the closure of the plaintiff's evidence subject to the light of rebuttal, defendant led his evidence which was closed on November 5, 1974. The case was posted for the rebuttal of the plaintiff on December 4, 1974 On August 2, 1976, an application was moved on behalf of the plaintiff snider Order VII Rule 18 and Order XIII Rule 2, CPC. This application was resisted be the defendant by filing a reply on August 12, 1976 The learned Civil Judge by his order dated September 15, 1976, partly allowed that application and ordered that the plaintiff can only get the bank accounts' statements of defendants produced from the banks relating to the period of which the cheques have been filed by the defendant This application was allowed with costs of Rs. 20/- to the defendant It may be mentioned here that in that application, the plaintiff-petitioner stated that some of the cheques given by him were not credited it the account books of defendant and this fact can be proved from the bank statement of the defendant that in fact these cheques were encased by the defendant The plaintiff requested for the pr Suction of counter-foils of the cheques and pay in slips by which these cheque were encased. An averment was made that the original cheques have teen produced by the defendant and in that connection, the application under Order XII Rule 14 and order XVI Rule 5 read with Section 151, CPC was made by the plaintiff to get these counterfoils and pay in slips produced from the defendant but the same was rejected by the court holding that these documents are not material to the controversy between the parties. In this view of the matter the learned Civil judge, as stated above, considered only bank statement of the defendant to be relevant for the decision of the suit and as such, that application was allowed as mentioned above. Thereafter an application for review of the order dated September 15, 1976 was submitted by plaintiff in the trial court. The learned Additional Civil judge, by his order dated November 13, 1976 rejected that application. After the rejection of the review application, the plaintiff-petitioner submitted another application under Section 151, Order VII Rule 18 and Order 13 Rule 2 CPC on December 15, 1976 praying that the plaintiff may be permitted to produce in he evidence the documents mentioned in schedule appended to that application. All these documents are of the bank accounts of Bank of Rajasthan Limited, High Court Road, Jodhpur Branch and Bank of Baroda, Sojati Gate, Jodhpur Branch. In para 5 of the application, it has been stated that these documents are for the purpose of rebutting the evidence led by the defendant. No written reply was submitted to this application by the defendant non-petitioner. After hearing arguments, learned Additional Civil Judge rejected the application with costs amounting to Rs. 40/- (Rs. Forty only) by his order dated July 15, 1977.
3. Aggrieved by this order dated July 15, 1977 the plaintiff-petitioner has come up in revision before this court.
4. I have heard Mr. Trilok R. Rathi for the plaintiff-petitioner and Mr. I.C. Maloo for defendant-non-petitioner at considerable length and have gore through the record of the case.
5. Mr Maloo raised the following preliminary objections before me:
1. That the defendant had submitted an application on August 2, 1976, under Order VII Rule 11 and Order XIII Rule 2 CPC in respect of the very documents about which the application dated December 15, 1976 was submitted That application of the plaintiff was partly allowed by the earned Additional Civil Judge vide his order dated September 15, 1976. A review application was preferred for reviewing that order but the learned Additional Civil Judge rejected that application on November 14, 1975 and so the application in respect of these very documents, the 1st of which was appended to the application dated December 15, 1976 was barred by the principle of res judicata. In this connection he placed reliance on Satyadhyana Ghosol and Ors. v. Smt. Deorajin Debi and Anr. : 3SCR590 and Bank of Baroda v. Fishoe.
2. That the application on which the impugned order was passed is belated in as much as the defendant closed his evidence on November 1, 1974. The application dated December 12, 1976 was submitted more that two years after the closure of the defendant's evidence. The plaintiff was aware about the documents in respect of which he has moved an application under Order VII Rule 18 and Order XIII Rule 2 in the near 1971 but inspite of this he did not put a single question to the defendant when he came in the witness-box. Therefore, in these circumstances, the application is belated one.
3. that whether to admit the documents under Order XIII Rule 2 or not was the discretion of the trial court The trial court in exercise of its discretion dismissed the application of the plaintiff and as much, the revision against the discretionary order is not maintainable. He relied on The Managing Director (NIC) Hindustan Aeronautics Ltd. Balanagar v. Ajit Prasad Tarway etc. A.I.R. 1973 S.C.(sic).
6. As regards the first preliminary objection it may be stated that the application dated August 2, 1976 was resisted be the defendant on the grounds that the disputed documents are not relevant for the issues framed in the plaintiff petitioner has not mentioned them in the list of witnesses and as such he is estopped now to get them produced. It was not necessary for the plaintiff-petitioner to make an application under Order VII Rule 18 and Order XIII Rule 2 CPC at that stage for the reason that so far as the counterclaim of the defendant was concerned, it was admitted that the plaintiff is in a position of defendant and therefore, the provisions were not applicable The application which was filed by the plaintiff on August 2, 1976 was not at all necessary. After the parsing of the order dated September 15, 1976 on this application as has been stated above, the plaintiff petitioner submitted an application ft r review of the order During the course of arguments, it was stated on behalf of the defendant before the learned Additional Civil Judge that if the plaintiff likes, he may submit another application under Order XIII Rule 2 CPC It may be recalled here that the learned Additional Civil Judge while disposing of the review application clearly recorded, **xokgku dh lqph esa ntZ nLrkost dks nj[okLr vkns'k 13 fu;e 2] lh-ih-lh- ds :I esa ugha ekuk tk ldrkA tSls vU; nLrkostkr ds fy;s oknh us vkns'k 13 fu;e 2 lh-ih-lh- dh nj[okLr is'k dh gS mlh izdkj 'kkV Ldksi ds fy, Hkh ,slh nj[okLr is'k djuk vko';d FkkA** The application dated Dec 15, 1976 which was submitted under section 151, O.XIII r.2 R. VII r.18 clearly stated in paras 5 & 6 that **fd oknh us tkjh lEel ds Hkkx fj esa cSad vkWQ cM+ksnk rFkk cSad vkWQ jktLFkku ds mijksDr fidi iaft;kWa jksdM+ iaft;kWa rFkk /kukns'k iaft;kWa eaxkbZ FkhA bUgsa lk/; esa izLrqr fd;s tkus ls lacaf/kr o.kZ.k oknh vius cfgu ds Hkkb;ksa dks [kq'kh esa dj fn;k Fkk rFkk cSadksa dks tks vkg oku lueal U;k;ky; dh vksj ls Hksts x;s Fks muesa Hkh mijksDr dh lqfM;kWa layXu dh xbZ FkhA
fd nh cSad vkQ jktLFkku fy- rFkk cSad vkQ cM+kSnk ls tks iaft;kWa eaxkbZ tkuh gS o lk/; esa izLrqr dh tkuh gS mudh lwph bl izkFkZuk i= dk vfHkUu vax ekuk tk;sxkA
This clearly shows that this application was based on different grounds. I may state at once, though I propose to dilate on it later, that even this application was not necessary. In these circumstances, lam unable to agree with the learned Counsel for the defendant-non petitioner that the rejection of the earlier application dated August 2, 1976 operates as a bar It is true that the principle of res judicata applies between two stapes in the same litigation to the extent that a court whether the trial court or higher at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings. In the facts and circumstances narrated above, the principle of res judicata is not applicable As the principle of res judicata is not applicable, the decisions reported in Satyadhyana Ghosal's case : 3SCR590 and the Bank of Baroda's case : AIR1975Cal225 are not relevant. As regards the second preliminary objection that the application dated December 15, 1976, is belated for the reasons which. I will mention hereunder, this question does not arise as in my opinion, no application for admission of these documents was at all necessary under the provisions under which it was made. The third preliminary objection raised by the learned Counsel is that the learned Additional Civil Judge has rejected the application dated December 15, 1976. He refused to admit the documents while exercising discretion which vested in him under Order VII Rule 18 or under Order XIII Rule 2 It is no doubt true that an order passed under Order VII Rule 18 or Order XIII Rule 2, CPC discretionary but here the question is that the leaned ed Additional Civil Judge has rejected he application holding that there are no pleadings of the defendant in respect of these documents and as such, these documents cannot be admitted in evidence. The learned Additional Civil Judge in this connection has exceeded his jurisdiction in as much as he has exercised jurisdiction which did not vest in him. in accordance with law. In the order under revision, it has been specifically mentioned that the plaintiff-petitioner has a right to get produced the demand draft and cash slips of Bank of Rajasthan and Bank of Baroda, Jodhpur Branch, in rebuttal of the counter claim preferred by the defendant non-petitioner. It has further been stated that these documents were neither in possession nor power of the defendant and so could not be produced on the first date of hearing. The documents were not in actual physical possession or control of the plaintiff-petitioner They could only be produced through the intervention of the court by calling witnesses and asking them to produce the documents In the order under revision, it has been reiterated as has been done in the earlier order dated September 15, 1976 that in regard to counter-claim, the position of the plaintiff is that of the defendant. In these circumstances, ground for interference in revision is clearly made out. I, therefore, over rule the aforementioned three preliminary objections raised on behalf of the defendant-non-petitioner.
7. Order VII Rule 14(2) provides that where the plaintiff relies on any document as evidence in support of his claim, he should enter such document in the list to be annexed to the plaint whether the document is in his power or not. Order VII Rule 15 makes it incumbent on the plaintiff to mention where any document is not in his possession or power, if possible, to state in whose possession or power it is Order VII Rule 18(1) C.P.C. inter alia lays down that a document which ought to be entered in the list to be added of annexed to the plaint and if not entered accordingly, shall not be received in evidence until the leave of the court is granted Sub-rule of Rule 18 Order VII provides that the rule as to the inadmissibility of the document not produced with or referred to in the plaint does not apply to the following cases:
1. Where the document is handed over to a witnesses for refreshing his memory,
2. Where the document is produced in answer to any case set up by the defendant, and
3. Where the document is produced in the cross-examination of the defendant's witnesses.
8. Order XIII Rule 2 deals with the effect of non-production of document. It presupposes that the documentary evidence was in possession or power of the party and has nor been produced in accordance with the requirement of Rule 1 of Order XIII, then on showing good causes to the satisfaction of the court which is seized of the matte, the court may receive such document in evidence after recording reasons for so doing. In the light of these provisions, I have to examine whether the plaintiff petitioner, who is in a position of defendant in regard to the counter claim preferred by the defendant-non-petitioner, can get these documents summoned, produced and proved or not. At the risk of repetition, it may be stated that before the trial court, there was no dispute that so far as the counter-claim of the defendant-non-petitioner is concerned, the plaintiff-petitioner we in the position of a defendant and the former was in the position of a plaintiff. This was rightly not challenged before me by the learned Counsel for the defendant-non-petitioner. In these circumstances, the question that arises for my consideration is whether Order XIII Rule 1 and 2 and Order VII Rule 14 Hand 18 C.P.C. applied or not The defendant-non-petitioner preferred a counter-claim for Rs. 3200/-. The plaintiff submitted a rejoinder in reply to the written-statement in which the counter-claim was made. That rejoinder so far as the counter claim was concerned, tantamount to a written-statement by a defendant. Issue No. 4 was framed and its subject-matter was the counter-claim preferred by the defendant non-petitioner. The burden of this issue was placed on the defendant non-petitioner). It led evidence in support of this issue along with the rebuttal evidence in respect of the issue, the burden of which lay on the plaintiff (petitioner). The provisions of Order XIII Rule 142 and Order VII Rule 14 and 18 are not applicable to the defendant. As stated above by me, the position of the plaintiff in respect of the counterclaim was that of the defendant In Gyaniram and Anr. v. Gulab Chand it was held that these provisions are not applicable to the defendant when the documents are not in the possession or power of the defendant who seek their production from a third-party. It was held in that case that Order XIII Rule 1 & 2 CPC 2 have no application. It was also observed therein that Order VII Rule 14 read with Order VII Rule 18 disable a plaintiff from producing in evidence documents whether in his possession or power, if he had not included them in a list to be filed with the plaint, there are no similar provisions so far as the defendants are concerned. It was further observed,
The defendant has an unqualified right to produce in evidence documents at any stage so long as his evidence has not been closed, provided that they were not in his possession or power.
9. Its this case, the documents mentioned in the Schedule appended to the application dated December 15, 1976 are not in possession or power of the defendant but, they are to be summoned from the concerned banks Therefore, Order XIII Rule 2 is not attracted. The plaintiff-petitioner, as mentioned above, is in a position of a defendant so far as the counter-claim of the defendant-non-petitioner is concerned and as such, Order VII Rule 14 read with Order VII Rule 18 cannot come into play. In these circumstances, the plaintiff-petitioner as his capacity in that of a defendant in so far as the counter-claim is concerned, has an unqualified light to produce in evidence documents at any stage and therefore the learned additional Civil Judge was not at all justified in refusing to summon the documents from the concerned banks. I may add that the documents sought to be summoned and produced and proved are from the records of the Bank of Rajasthan Ltd., Jodhpur Branch and Bank of Baroda, Jodhpur branch. I am tempted here to quote the extract from the above mentioned Rajasthan decision A.I.R. 1961 Raj. 21
We may pause to observe here for the guidance of the subordinate courts that the object of courts is to decide the rights of parties and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights They do not exist merely for the sake of enforcing discipline but for the sake or deciding the matters in controversy.
Learned Counsel for the plaintiff petitioner maintained during the cause of arguments that the application of the plaintiff petitioner dated Dec. 15, 1976 should have been allowed under Order VII Rule 18 and Order 13 Rule 2, CPC He was not justified in making this argument for the simple reason that his position was that of a defendant and the documents sought to be summoned and produced were not in his possession and power and such of the provisions relied upon by him during the course of arguments are applicable. It is not necessary to refer to the decisions relied upon by the learned Counsel for the plaintiff-petitioner as after going through them, I find that they have no bearing on the question with which I am concerned in this revision except Gyaniram's case which has already been referred to above by me. Hence, I refrain from examining the cases cited by the learned Counsel for the petitioner except the one referred to above. I have no hesitation in coming to the conclusion that the learned Additional Civil Judge had no jurisdiction to refuse to summon the documents in question on the ground that they are not relevant or for that matter, they do not relate to maters in controversy between the parties. In view of the pleadings of the parties I am constrained to hold in the facts and circumstances of this case that the plaintiff-petitioner h entitled to summon the records of the banks concerned mentioned in the schedule appended the application dated December 15, 1976 (though for that purpose, no application was necessary).
10. For the reasons mentioned above, I allow the revision application, set aside the order of the learned Additional Civil Judge July 15, 1977 and direct that the plaintiff-petitioner will be entitled to summon in evidence in rebuttal of issues No. 4 and will also be entitled to produce documents mentioned in the schedule appended to the application on December 15, 1976. Having regard to the circumstances of the case, I leave the parties to bear their own costs of this revision application.