1. The plaintiff filed a suit on an alleged lost promissory note said to have been executed by the defendant and be states in the plaint that he had certain account books which show the transactions between himself and the defendant. On 11th February 1933, the defendant issued though his pleader a notice under Order 11, Rule 15 to produce the plaintiff's account books for inspection before himself or his pleader. That notice was received on the same date but no reply was sent by the plaintiff. The latter filed certain account books into Court on 13th February 1933. The hearing of the suit came up on 10th March 1933 and on that date the plaintiff wished to exhibit and put in evidence these account books. The defendant 'put in a counter objecting and stating that he had not been given inspection of them as demanded and consequently under Order 11, Rule 15, the plaintiff was not at liberty to put them in evidence unless he satisfied the Court that there was sufficient reason for not complying with the notice. The only reason found in the plaintiff's petition for not given inspection is:
The said books were filed even at the last hearing as soon as notice was given by defendant. The said books being necessary for me every day, they could not be filed before the said documents are mentioned in the plaint.
2. The lower Court passed a very brief order? 'Heard. Delay excused; receive subject to proof and relevancy.' Against this order the present revision petition is filed. It may be noticed in the first place that this is not a question of delay but a question of total omission to reply to the defendant's demand for inspection or to give him inspection. No doubt the plaintiff's petition mentioned both Order 13, Rule 2, as well as Order 11, Rule 15, and this possibly misled the Judge, but Order 13, Rule 2 has got nothing to do with this matter. The documents were filed in Court long before the first hearing of the suit and apart from the question of inspection, the production was perfectly in order and the whole of Order 13 is inapplicable to this case. It is clear that the learned Sub-Judge has failed to advert to the order and rules which are really relevant and see whether the plaintiff had shown sufficient cause under Order 11, Rule 15 for not answering the demand notice or giving inspection. The only reason stated in the petition is that mentioned above and according to Order 11, Rule 17, that is not a reason which the Court could accept, because such a case of account books in constant use is specially provided for there, and the rule lays down that the party to whom notice is given should produce the books of account at their usual place of custody stating the ground on which he objects to produce them. Therefore the only reason given is not a reason which the Court could accept as an excuse under Order 11, Rule 15.
3. Several lines of argument have been attempted in defence of the lower Court's order. The first is that unless the party who has given notice of inspection which is not replied to takes the further action which is open to him under Rule 18, the party who has omitted to reply or give inspection is absolved from the penalties of Rule 15. There is absolutely nothing in Rule 18 to suggest that it is a pre-requisite to Rule 15. It lays down an alternative procedure by which, if the notice is not replied to, the party who has asked for inspection can force the other party to give it. But one point' in Rule 18 may be noticed, i.e. that the the Court is not the proop place to offer the inspection so that even had the plaintiff, after sending the documents to the Court offered the defendant inspection of them there, that would not have been a proper offer under Rule 18. However, in this case it is not contended that the plaintiff offered inspection in the Court. It is clear, and it is admitted, that he did not reply to the demand for inspection at all. Under Rule 17 that demand has to be replied to within ten days and in reply a time has to be given within throe days of that reply at which the documents could be inspected either at the office of the pleader or, if they wore account books in constant use, at the place of trade or business.
4. Finally it was suggested that the plaintiff was misled by the wrong action of his pleader. The pleader has not put in any affidavit, nor has he been called to speak to the fact, nor is it a reason stated by the plaintiff himself in his petition to the lower Court. The rules are so clear that it is impossible to think that the pleader did not know the correct procedure. The object of the rules is evident that a party is not to have accounts sprung on him at the time of trial the contents of which he had no opportunity to acquaint himself with beforehand. That is exactly what has happened in this case and it is exactly for tli is reason that the rules have been framed, it is not open to the parties to lay down a fresh procedure for themselves and depart from the procedure laid down in the Code. The order of the Sub-Judge is clearly ultra vires, because, as stated above, the only reason offered for the omission to comply with the notice for inspection is one which Rule 17 says is not a legal reason. The petition must, therefore, be allowed with costs both here and in the Court below, the order of the lower Court set aside; and it is ordered that the documents cannot under Order 11, Rule 15, be put in as evidence on behalf of the plaintiff.