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S.P.S.R. Subramania Ayyar Vs. C. Oomer Cotty Haji - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in148Ind.Cas.1149
AppellantS.P.S.R. Subramania Ayyar
RespondentC. Oomer Cotty Haji
Cases ReferredLyallpur Sugar Mills Co. Ltd. v. Ram Chandra Gur Sahai Cotton Mills
Excerpt:
.....xi, rule 14: repeated the previous events, referred to the defendant's failure to inspect the books produced by the plaintiff within the time allowed but in the end concluded that 'considering the circumstances of the suit there is every reason (right? and as for the books in spite of the vakil objection the judge was not satisfied because the plaintiff had not sworn to it that the accounts produced were all the books that contained the dealings between the parties. in all attempts he, failed. there are no particulars in that petition or the order and there is only a general description that all ledgers from 1102 must be produced as well as all documents such as letters, chittas, pro-notes etc. on the defendant's petition the learned judge, retierating what had previously occurred..........xi, rule 14: repeated the previous events, referred to the defendant's failure to inspect the books produced by the plaintiff within the time allowed but in the end concluded that 'considering the circumstances of the suit there is every reason (right?) for the 1st defendant to know how the amount claimed is arrived at and for this purpose the account books called for appear to be necessary.' the order drew attention to the fact that the objection was made not on oath by the plaintiff but that it was made by his vakil and wound up with the direction that 'the books now called for also must be produced on or before october 31, 1930.6. there are several inaccuracies in this order, the first of which is that it was not books alone that were called for but all ledgers from 22nd edavom.....
Judgment:

Krishnan Pandalai, J.

1. The plaintiff appeals from an order expressly made by the learned Subordinate Judge of Cochin under Order XI, Rule 21, Schedule I, Civil Procedure Code, dismissing his suit for want of prosecution on the ground that the, plaintiff had contumaciously refused to produce certain documents which he had been ordered to produce. From the terms of the Judge's order as well as from the previous order for production which are on the record there is no doubt that those orders were passed under Order XI, Rule 14 and that the respondent 1st defendant applied for orders under that provision. This being so, it would be enough to dispose of this appeal to say that the learned Judge had no authority to dismiss the plaintiff's suit for disobedience of an order under Order XI, Rule 14. That was decided so far as this Court is concerned in Sithamalli Subhayyar v. Ramanathan Chettiar 77 Ind. Cas. 766 : 46 M.L.J. 350 : 19 L.W. 355 : (1924) M.W.N. 340 : A.I.R. 1924 Mad 582 which followed a decision of the Allahabad High Court in Lyallpur Sugar Mills Co. Ltd. v. Ram Chandra Gur Sahai Cotton Mills & Co. Ltd. 67 Ind. Cas. 73 : 44 A. 565 : 20 A.L.J. 422 : 4 U.P.L.R. (A.) 139 : A.I.R. 1922 All. 235. I should have been content to set aside the learned Judge's order on this short ground and send the case back for disposal according to law if it had not been that the learned Judge's order shows that he felt that his orders repeatedly made had been systematically defied and that nothing less than the dismissal of the suit would satisfy the ends of justice. I have made a study of the orders passed and I have come to the conclusion that the plaintiff did not either systematically or otherwise disobey any order to which the penalty attached to Order XI, Rule 21 could be attracted.

2. The story is briefly told. The plaintiff is a firm of money-lenders, hundi merchants, doing business at Quilon. They brought a suit for the recovery of about Rs. 27,000 from a firm of which according to them one Moosa Kutty deceased and defendants Nos. 1 and 2 were the partners and who, according to the plaint, had carried on business at Quilon and for the purpose of that business had borrowed money from the plaintiffs. The plaintiffs alleged that, the commencement of the dealings was evidenced by an instrument signed by the three partners and that practically tit the close of the dealings the firm through one or more of its members settled accounts and gave a signed acknowledgment for the sum then due. The plaintiffs also relied upon their books of account kept in the ordinary course of business. The 1st defendant-respondent, a resident of Cochin, before he filed his written statement, made an application on April 11, 1930, I.A. No. 152 of 1930, stating that he was unable, for want of full information as to how the amount claimed was made, to frame his defence. The order of the Court dated June 20, 1930, was 'The plaintiff should therefore furnish such information as are (is) necessary for defendant No. J to know how the plaint amount is arrived at before June 30.' The plaintiff asked for some little more time and then produced copies of the ledgers for three years M.E. 1103 and 1104 accordingly. It may be added that he had with the plaint produced the current ledger for the year 1105 M.E. and taken it back after leaving a copy. The defendant, apparently after the above copies were produced, filed his written statement on July 15, stating that he was never a partner in the farm of Moosa Kutty and therefore not liable for the debts of that firm at all, that he had not signed in the agreement on which the dealings with the plaintiff began and which was produced along with the plaint and that he did not know anything about the acknowledgment. About the plaintiff's accounts he allege d that the ledger of 1105 M.E. produced with the plaint was absolutely false and prayed that the plaintiff should be directed to produce forth with the accounts, that is, the day book, the ledger and rough accounts from 1102 to 1105 and that on their production a further written statement might be allowed to be filed. There were also defences as to the maintainability of the suit in the Cochin Court.

3. Next we see on July 22, 1930, the defendant making another application I.A. No. 252 of 1930 under Order XI Rules 14 and 15 asking that the plaintiff should be required: to produce in Court the day book, ledger and rough accounts from 1101 and 1104 in respect of his trade which are in his possession. In the affidavit in support of this petition the 1st defendant stated that the plaintiff had produced only same papers appearing like copies of the same' (accounts from 1102). The order on this petition was dated August 19, 1930 and recites that the account book first produced was for the year 1105, that as the defendant was no satisfied it was ordered that the plaintiff should furnish such information as was necessary for the defendant to know how the plaint amount was arrived at before June 30,1930, but that the plaintiff did not furnish the information but only filed copy of the accounts kept by the plaintiff, that the copy does not clearly indicate who the partners are and whether it is daybook, ledger or kurippu and in the end directed as follows: 'The account books as required by the defendant must be produced within a week from this date before this Court. The original accounts are what have been called for.' Stopping for a moment here, it seems to me that the learned Judge did not appreciate the difference between what he had ordered on the first petition, which was to furnish information and what he found fault with the plaintiff for not furnishing, which was the original accounts. Whereas the Judge had only ordered further particulars and those particulars had been furnished, the learned Judge mixed up the two things and thought that he had ordered production of books and found fault with the plaintiff for not doing what he had not been ordered to do and in that misconception ordered the books to be produced. But the plaintiff produced these books after obtaining some little time beyond the week allowed and it is not denied, because the subsequent orders show that clearly, that on August 26 and on August 30, all the books which were required by the defendant and ordered by the Court in I.A. No. 252 of 1930, namely, day-books, ledgers and kurippu (minus the books of 1105 which had already been produced) were produced in Court and they were still there when the suit was dismissed.

4. So far the plaintiff had fully and completely complied with every requirement made of him rightly or wrongly.

5. But the defendant was still not satisfied. He returned to the attack with a third petition under Order XI, Rule 14, I.A. No. 334 of 1930 dated September 22, 1930, stating that the plaintiff had produced only certain books but not all his books between the period from 1102 to 1105. In his affidavit he stated that the plaintiff had only produced three ledgers, namely, No. 3 of 1102, No. 4 of 1103 and No. 4 of 1104 and that he had not produced the remaining ledgers. He also said: 'It is found on examining the day-books of the aforesaid years that Muhammad Moosa has executed several chits, letters and notes to the plaintiff firm and that amounts have Been debited in; accordance with the same. The above, documents are absolutely necessary for evidence on my behalf. ... After all documents are produced I shall examine and, compare the same and get the necessary portions translated. The accounts now produced may be returned only after that'. It is obvious from this that the defendant was asking the plaintiff to furnish him. with evidence for himself. The plaintiff's, Vakil apparently in the absence of the plaintiff himself objected to this demand on the ground that all the books ordered by the Court had been produced and that the plaintiff had no other books in. which the dealings between the parties are entered, that the other ledgers in the plaintiff's firm do not refer to any dealings by the plaintiff with the defendant company at all, that Moosa Kutty's letters, chits, and notes have nothing to do with the defendant's contention, that the plaintiff's books already produced, had been lying in Court for a long time and that the defendant did not care to inspect them. The order on this petition expressly stated to be under Order XI, Rule 14: repeated the previous events, referred to the defendant's failure to inspect the books produced by the plaintiff within the time allowed but in the end concluded that 'considering the circumstances of the suit there is every reason (right?) for the 1st defendant to know how the amount claimed is arrived at and for this purpose the account books called for appear to be necessary.' The order drew attention to the fact that the objection was made not on oath by the plaintiff but that it was made by his Vakil and wound up with the direction that 'the books now called for also must be produced on or before October 31, 1930.

6. There are several inaccuracies in this order, the first of which is that it was not books alone that were called for but all ledgers from 22nd Edavom 1102, day-book, ledger and rough chitta for 1105 and all documents such as letters, chittas, pro-notes etc., which appear to have been given from Edavom 22, 1102, by C. K. Muhammad Moosa Kutty's firm to the plaintiff's firm. Secondly, it is difficult to understand why these chits, letters and pro-notes which are merely vouchers for payment are necessary for the defendant to know how the amount claimed is arrived at. And as for the books in spite of the Vakil objection the Judge was not satisfied because the plaintiff had not sworn to it that the accounts produced were all the books that contained the dealings between the parties. Apparently the learned Judge did not recognise the fact, although it was stated quite frankly by the defendant himself that he was asking for these papers to use them for his own evidence.

7. From this order the trouble began. The plaintiff vainly tried to convince the learned Judge either that he had been misled into passing this order or at least to give him sufficient time to obey it or to take it to a higher Court to get it set aside. In all attempts he, failed. By I.A. No. 361 of 1930 dated October 26, 1930, the plaintiff sought a review of the order just above referred to. This was dismissed on November 4. In the affidavit in support of this petition the plaintiff swore that the account books already produced in Court covered all the transactions between the plaintiff and the defendant company upon which the suit was based, thus supplying the omission about which the learned Judge had remarked in his order on I.A. No. 34 of 3930. By another petition dated October 26, namely I.A. No. 362 of 1 30, the plaintiff sought an extension of time which was granted till November 9. It is necessary to remark here that one of the plaintiff's difficulties as to the chits, notes and letters was what it was that he was required to produce, to which the learned Subordinate Judge said in the order:

The chits and the pro-notes for which details are required in the review petition are fully set out in I.A. No. 334 of 1930.

8. This is entirely wrong. There are no particulars in that petition or the order and there is only a general description that all ledgers from 1102 must be produced as well as all documents such as letters, chittas, pro-notes etc., which appear to have been given from 1102 by Moosa Kutty's firm to the plaintiff's firm. Finding that it was impossible to get the learned Judge to change his mind, the plaintiff on November 19, 1930, that is, the day appointed for the production of the additional documents, produced 197 chits along with an affidavit and a ked for one month's further time stating that the chits which passed subsequent to the period to which those produced related were being searched for. There were orders on several dates on this petition, the first of which was on the date when it was filed and is to the following effect:

Some of the ledgers of 1102-4 have not been produced. No valid grounds have been adduced for not producing the same. They must be produced on or before November 21, 1930. The remaining chits must be produced on or before November 28, 1930.

9. It will be observed that the learned Judge here ignored what nobody had denied and the plaintiff had sworn to, that there were no other ledgers or account books relating to the transactions between the parties except those that were filed in Court, and that still the learned Judge insisted upon the production of what he calls the other account books and that on November 21, a sheer impossibility seeing that the order was made at Cochin and the books were at Quilon. If the learned Judge meant that the plaintiff was to produce not merely the books which related to the transactions between the parties but all the accounts kept in the plaintiff's business during the period of the dealings between the parties, a more unreasonable order is difficult to imagine and I, therefore, take it that the learned Judge's order was passed without realising that all the relevant books were in Court. The subsequent steps are few and easy to relate. The plaintiff made one last attempt to get himself righted with the Court and filed his petition, I.A. No. 397 of 1930, praying for suspension of the two orders last above referred to in order that he may come up to this Court and get them varied. The defendant retorted with another petition, I.A. No. 328 of 1930, purporting to be made under Order VI, Rule 5 and Order XI, Rules 11, 12, 14, 15 and 21. On both these the learned Judge passed a joint order on December 1, The plaintiff's petition was dismissed because according to the Judge this Court was not likely to interfere in revision on interlocutory matters of this kind. This was a large assumption. On the defendant's petition the learned Judge, retierating what had previously occurred and what according to him showed the plaintiff's contumacious disobedience of the Orders of the Court, directed that the remaining records should be produced within four days and warned the plaintiff that his failure to do so might end in striking off the suit. The plaintiff not having produced the remaining records on December 5, the suit was dismissed on the 10th.

10. I have thought it necessary to set out these facts only out of respect to the learned Judge and to the feelings which apparently he had corn to entertain that a litigant in his Court deliberately disobeyed the order of the Court and flouted its authority. As I understand the facts, the plaintiff fully complied with and carried out the orders passed on the first two petitions, I.A. Nos. 152 and 252 of 1980. He also partly carried out a part of the order on I.A. No. 334 of 1930 by producing 197 chits which was all he could collect in the time. As to his not producing the other account books, the short answer is that there were no other account books that related to the transactions between the parties and the plaintiff cannot reasonably be blamed for resisting an order that he should produce not books relating to transactions between the parties but absolutely unconnected things with which the defendant had nothing to do. I feel that if the learned Judge had understood this he would not have passed the order and he would have recognised that there was nothing really and substantially disobedient in the omission of the plaintiff to produce irrelevant account books. The learned Judge's order is partly due to this. The only other records not produced are the remaining chits, letters, pro-notes, etc. So far as this disobedience is concerned, in my opinion, it was not real disobedience. The plaintiff produced 197 chits, How many more he had, no one can now say because he did not have time to pick up the rest. It is not permissible to a party to excuse the disobedience of an order to produce documents to take shelter under the view that the order itself is wrong, unless the order is set aside by the superior Court. Every litigant is bound to the best of his power to carry out orders made. That was not the ground on which the plaintiff sought to excuse himself. He did obey the order, and for the documents which were not collected he asked for time and he also asked for time to come to this Court, both of which were practically refused. It was impossible for the plaintiff to produce at Cochin chits, letters, pro-notes etc., which had passed between the parties during a whole year after picking them up and collecting them at Quilon, a hundred miles away, in four days after the order, and I feel that if the learned Judge had realised the impossibility of carrying out the order which he made he would not have made it. I, therefore, think that there was no such contumacious disobedience on the part of the plaintiff as to any part of the order on I.A. No. 334 of 1930 as should in any case entail the extreme penalty for a plaintiff-litigant, namely, that his suit should be dismissed.

11. But as I said, the learned Judge's order fails on the preliminary ground that he had no power to make it under the provisions of law under which he purported to act. The learned Judge's order is set aside and the suit will be sent back to be restored to its original number on the, file and disposed of according to law as against the first defendant-respondent. The appellant will have his costs of this appeal from the first defendant-respondent.


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