1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 1798 OF 2009 Gurusidhappa @ Suryakant S/o Basawanappa Konale .... PETITIONER V E R S U S Chandrakant S/o Basawanappa Konale and others. ..... RESPONDENTS Mr. S.T.Ghute, Counsel for Petitioner. ..................... [ CORAM : K.K.TATED, J. ] DATE : 24/7/2009 PER COURT : 1. Rule. Rule returnable forthwith. 2. Heard Mr. S.T. Ghute, learned counsel appearing on behalf of petitioner. Though the respondents are served, no one appeared on their behalf when the matter was called out for admission. 2 3. Petitioner under Article 227 of Constitution of India challenges the Order dated 10/2/2009 passed by the learned Civil Judge (Sr.Division), Osmanabad below Exh. 67 in Special Civil Suit No. 48 of 2001 for partition and separate possession about the land and house properties as shown and described in Schedule attached with the plaint situated at village Kilaj, Tq. Tuljapur and for past and future mesne profit. In the said Suit, petitioner filed application below Exh. 67 on 10/2/2009 for directing Branch Manager, State Bank of Hyderabad, branch Tuljapur to submit account statement of Chandrakant Vasantappa Kandale before the trial Court from 1999. The petitioner submitted that they approached the Bank for copies of those documents, but same were refused by the Bank on the ground that the petitioners are not entitled for the same. They further pointed out to the petitioner that unless and until there is Court’s Order, they can not produce those documents in Courts also. The said application below Exh. 67 came to be dismissed by the trial Court on the ground that it is the duty of the plaintiff to prove that he sent money by demand draft to the respondents. The trial Court further observed that the petitioner can not take help of the Court to prove his own case by calling the Bank Officer to produce document in their possession and, therefore, application below Exh. 67 came to be dismissed. It is to be noted that under Order XVI Rule 6 of the Code of Civil Procedure, any person may be summoned to produce 3 a document without being summoned to give evidence. Order XVI Rule 6 of the Code of Civil Procedure reads as under : “ Summons to produce document - Any person may be summoned to produce a document, without being summoned to give evidence, and any person summoned merely to produce a document shall be deemed to have complied with the summons if he causes such document to be produced instead of attending personally to produce the same.” 4. Petitioner in his plaint para no. 9 specifically stated that he sent a demand draft of Rs. 25,000/- in the name of Dagdu Savane. It is admitted position that once the demand draft is handed over to the other side and if the other side has deposited in their bank account, then same can be proved by calling the documents from the bank, where the recipient have their account. In the present case, when the petitioner contended that he paid some amount by demand draft to the respondent/original 4 defendant, those facts can be proved only by calling the record of the concerned bank with whom the said demand draft is encashed. 5. Therefore, considering the above mentioned facts and circumstances, of the present case and Order XVI Rule 6 of Code of Civil Procedure, I held that the trial Court erred in coming to the conclusion that petitioner is not entitled to call papers from the Branch Manager, State Bank of Hyderabad, branch at Tuljapur of the account of Chandrakant Vasantappa Kandale, Respondent no. 1 herein. Therefore, the order passed by trial Court dated 10/2/2009 below Exh. 67 is set aside and application preferred by petitioner below Exh. 67 is allowed. Accordingly the Writ Petition disposed of. [ K.K.TATED ] JUDGE knp/WP1798.09 5 6 7 8 9 10 11 12 13