1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE NAGPUR BENCH, NAGPUR WRIT PETITION NO. 5854/2007 (Rajesh @ Khanna Madhavrao Alone Vs. Smt. Vimal wd/o Vitthal Bele & anr.) Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's orders. CORAM : Smt. Vasanti A. Naik, J. DATED : 6 th OCTOBER, 2008. Heard Shri Mirza for the petitioner, Shri M. M. Deshmukh for respondent no.1, and Mr. Anand Thakare for the respondent no.2. By this petition, the petitioner impugns the order passed by the Civil Judge, Jr. Dn., Digras on 15/10/2007 on an application filed by the respondent no.1 under Section 6 of the Bankers' Book Evidence Act, 1891. The respondent no.1 had filed a suit praying that the petitioner be directed to refund an amount of Rs. 70,000/- which he had obtained from the respondent no.1 by misleading her. It was the case of the respondent no.1 that her husband was in the Police Department and after the death of her husband, she had received the amount of Insurance, Provident Fund and the other benefits. It is the case of the plaintiff that she had given an amount of Rs. 70,000/- to the petitioner to be paid to an officer to get her a job, but she neither got the job nor did the petitioner return the amount of Rs. 70,000/- to 2 her. The petitioner/defendant had denied the claim of the plaintiff. After the parties had tendered the evidence in this case, by the order dated 21/8/2007, the trial Court directed the respondent no.1 to inform the name of her bank, her bank account number and the record in respect of the payment of amount to her by her deceased husband's employer as well as the L.I.C. The petitioner challenged the order dated 21/8/2007 in Writ Petition No. 4287/2007. However, the petition was withdrawn on 21/9/2007. The Xerox copies of the Statement of Accounts of the bank, the documents of insurance, etc. were filed by the respondent no.1 on 4/9/2007 and before an order was passed on the application for permission to exhibit the same, the respondent no.1 also filed an application under Section 6 of the Bankers' Book Evidence Act 1891, for a direction to the Manager of the Bank to produce the certified copy of the entries mentioned, along with the requisite certificate of the Bank. By the impugned order dated 15/10/2007, the application made by the respondent no.1 was allowed. The same is impugned in the instant petition. It is submitted on behalf of the petitioner that the trial Court was not justified in allowing the 3 application under Section 6 of the Bankers' Book Evidence Act, 1891 as the parties had already tendered their evidence and the case was at the stage of judgment. It is further submitted on behalf of the petitioner that the application filed by the respondent no.1 under Section 6 of the Bankers' Book Evidence Act, 1891, was liable to be dismissed. He relied on the decision reported in AIR 1986 Bombay 43, to substantiate the submission that an application by a party to cross-examine the other party and to produce evidence is not maintainable when the case is closed for judgment. The counsel for the petitioner also relied on the decisions reported in AIR 1964 Supreme Court 993 and AIR (34) 1947 Bombay 156, to substantiate his submissions. I have perused the provisions of Section 5 of the Bankers' Book Evidence Act 1891. It provides that a Court or a Judge may, on an application of any party to a legal proceedings, order that such party be at liberty to inspect and take copies of any entries in a banker's book for any of the purpose of such proceedings, or may order the bank to prepare and produce certified copies of all such entries. Thus, under the provisions of Section 6 of the Act of 1891, a Court, in its discretion, can issue the directions as provided in the aforesaid provision. It 4 is not in dispute that though the matter was closed for judgment in July, 2007, thereafter the matter was again reopened and the respondent no.1 was directed to inform the name of her Bank, her account number and the record in respect of the payment of amount to her from her deceased husband's employer as well as from L.I.C. The aforesaid order, though was challenged by the petitioner in Writ Petition No. 4287/2007, the said writ petition was dismissed as withdrawn. In this background, the respondent no.1 had produced the documents before the Court and had applied to the Court for exhibiting the same. At that juncture, an application was also moved by the respondent no.1 under Section 6 of the Bankers Book Evidence Act, 1891. Though the matter was initially at the stage of judgment, at the relevant time, was at the stage of production of documents and supplying of information by the respondent no.1 to the Court as the order passed by the trial Court on 21/8/2007 had attained finality. In this background, considering the pleadings of the parties and the provisions of Section 6 of the Bankers' Book Evidence Act, 1891, it appears that the trial Court had, in its discretion, issued a notice to the concerned Bank under Section 6(2) of the Act of 1891. The impugned order passed 5 by the trial Court does not suffer from any jurisdictional error so as to interfere with the same in exercise of the jurisdiction under Article 227 of the Constitution of India. It is a settled position of law that the time frame provided in Rule 1 of Order XVI of the Code of Civil Procedure is merely directory and the Court is not prohibited from issuing summons to the witness to produce documents at a later point of time, in a fit and proper case. The judgments reported in AIR 1964 Supreme Court, AIR 1986 Bombay 43 and AIR 1947 (34) Bombay 156 cannot be made applicable to the facts of this case. In fact, it is observed in the decision reported in AIR 1947 Bombay 156 that power of the Court may not be restricted in a fit and proper case. For the reasons aforesaid, the petition fails and is dismissed with no order as to costs. The learned counsel for the petitioner seeks continuation of the stay order passed by this Court on 19th December, 2007, for a period of six weeks from today. Since the interim order is operating for a period of more than one year, this order is stayed only for a period of six weeks from today. JUDGE RMP