CR No.5176 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.5176 of 2010 Date of decision: 28.1.2011 M/s Guru Gobind Singh Trading Company ...Petitioner Versus Ram Kumar and another ...Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Madan Gupta, Advocate for the petitioner Mr.VK Jindal, Advocate for the respondents *** Ram Chand Gupta, J.(Oral) The present revision petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 29.5.2010 Annexure P-3 passed in Civil Suit No.233 of 2005, vide which learned trial Court allowed the application of the respondents-plaintiffs for directing petitioner to produce original receipts, failing which, permission was granted to the respondents-plaintiffs to lead secondary evidence. I have heard learned counsel for the parties and have gone through the whole record carefully including the impugned order passed by learned trial Court. Brief facts relevant for the decision of the present revision petition are that respondents-plaintiffs filed a suit for recovery of ` 4,01,170 alongwith interest at the rate of 18% per annum against the petitioner- defendant. It has been asserted by respondents-plaintiffs that a sum of CR No.5176 of 2010 2 ` 1,80,000/- was paid by the plaintiffs to defendant on 5.11.2002, which plaintiffs had agreed to repay alongwith interest at the rate of 1.5% per month. The amount was entered in the deposit column of relevant entry in the Bahi of the defendant-firm and that plaintiff put his signatures on the Roznamcha. The plaintiffs again deposited a sum of ` 1 lac on 19.12.2002 and signatures were put on the relevant entry. The account used to be settled by defendant-firm every six month till November, 2004. The defendant- firm had adjusted the plaintiffs' account in two accounts, one in the name of Kali Ram and another in the name of Ram Kumar being real brother of Kali Ram. The defendant-firm used to give chit regarding the amount on the letter pad of the defendant-firm and an amount of ` 1,17,500/- has been shown in the account of Ram Kumar and ` 2,81,225/- in the account of Kali Ram and on the letter pad Muneem (Accountant) of defendant-firm had put his signatures. In the written statement filed on behalf of the petitioner- defendant-firm, plea has been taken that Gulab Chand used to work as Muneem (Accountant) with the petitioner-firm and that he had embezzled the amount of the firm and that a criminal complaint has been filed by the petitioner-firm against the said Muneem (Accountant). The plea has also been taken that Gulab Chand had run away with some account books of the firm and that he had also made some forged and fake entries. It is denied that any amount as alleged by the plaintiffs was paid either on 5.11.2002 or 19.12.2002. It has also been stated by the petitioner that petitioner-firm CR No.5176 of 2010 3 never issued any chit or letter as alleged by the respondents-plaintiffs and that if there is any chit, the same has been prepared by the plaintiffs with the collusion of Gulab Chand Muneem (Accountant) of the petitioner-firm. Issues were framed. The case was fixed for evidence of the plaintiffs. Affidavit of the plaintiff in examination-in-chief was tendered. An application was moved on behalf of the respondents-plaintiffs directing petitioner-defendant to produce original record or in the alternate for permission to lead secondary evidence to prove the receipts dated 15.11.2002 and 19.12.2002 allegedly issued by the Muneem (Accountant) of the petitioner-firm, as the petitioner-firm failed to produce the original of receipts dated 15.11.2002 and 19.12.2002 on the plea that the same were forged by Muneem (Accountant) of the petitioner-firm. The trial court vide order dated 29.5.2010 allowed the application of the respondents-plaintiffs by observing as under: “After hearing learned counsel for the parties and going through the case file, it is observed that the plaintiffs have filed a suit for recovery of ` 4,01,170/- from the defendants with interest and have stated that money was demanded by the defendant in November, 2002 and some money was given in December, 2002. The defendant settled the account of the plaintiffs and also made a request that defendant has some problem to show the plaintiffs amount in one account and so it adjusted the plaintiffs' account in two accounts one in the CR No.5176 of 2010 4 name of Ram Kumar and other in the name of Kali Ram as both are real brothers. The defendant also gave a chit in this regard. In reply to the suit, the defendant appeared and stated that Munim of the defendant has embezzled the amount of ` 20,51,990/- on different dates and defendant was forced to file the complaint against him which is pending and the present plaintiff is one of the accused in that case. It was stated that on 20.2.2005 defendant came to the shop alongwith Leela Ram, Raj Kumar and Gulab Singh and Gulab Singh gave the writing to the effect that he has admitted in the said writing that he has spent the said amount for his household expenses and Gulab Singh, Leela Ram had taken the surety that in case Gulab Chand would not pay the amount then they would pay the same. During the evidence the plaintiffs were required to prove the entry in the rokar/roznamcha dated 15.11.2002 and 19.12.2002. The defendant has stated that the same are not available with it as its Munim has committed fraud with it and a plea has been taken that Bahis are also secondary evidence and without the evidence of the Munim the same cannot be proved but the plaintiffs have to prove their case by other means if the primary evidence is being made available by the CR No.5176 of 2010 5 defendant as the documents required by the plaintiffs are in possession of the defendant. The filing of the complaint by the defendant against one of the plaintiffs and his Munim does not take away its duty to produce the documents which are essential for the adjudication of the matter and are in their possession. In the application, the defendant has not denied the existence of these documents. The defendant has also not denied that the documents are not in its possession. Hence, the defendant is directed to produce the documents on the next date of hearing, failing which the plaintiff/applicant would be entitled to lead secondary evidence. The application is accordingly disposed of.” It has been contended by learned counsel for the petitioner- defendant-firm that no such documents are in existence and that unless existence of original of these receipts is proved, respondents-plaintiffs cannot be permitted to lead secondary evidence of the same. He has relied upon the observations made by Hon'ble Supreme Court of India in case J.Yashoda vs. Smt.Shobha Rani 2007(3) Civil Court Cases 0195 . On the other hand, it has been argued by learned counsel for the respondents that receipts dated 15.11.2002 and 19.12.2002 having been issued by Gulab Chand, Muneem (Accountant) of petitioner-firm, have not been specifically denied and only plea taken by it is that the same might have been forged by the said Muneem (Accountant). Further contended that CR No.5176 of 2010 6 respondents-plaintiffs are having no concern with any dispute between petitioner-firm and his Muneem (Accountant) and however, respondents had made payment to the Muneem (Accountant) of the firm in their due course of business and the receipts were also issued to them in due course of business and hence, plaintiffs having right to request the court for issuing direction to defendant to produce the original, failing which to allow plaintiffs to lead secondary evidence of the same. There is force in the arguments of learned counsel for the respondents-plaintiffs. They have made deposit with the petitioner- defendant-firm on 15.11.2002 and 19.12.2002 and receipts were issued by Gulab Chand Muneem (Accountant) of the firm and as the original of these having not been produced by petitioner-firm, prayer was made either to direct defendant to produce the original or to allow the respondents- plaintiffs to lead secondary evidence. If Muneem (Accountant) of petitioner- firm has allegedly committed any fraud with the said firm and if any criminal case got registered by the petitioner-firm against the said Muneem (Accountant), the present respondents-plaintiffs are having no concern with the said dispute. They only intend to get the said receipts proved by leading secondary evidence of the same. Law has been well settled in Surya Dev Rai vs. Ram Chander Rai and others 2004(1) RCR (Civil), 147 by Hon'ble Apex Court that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction of this Court. This court can interfere only when error is manifest and apparent on the face of proceedings such as when it is based CR No.5176 of 2010 7 on clear ignorance or utter disregard of the provisions of law and a grave injustice or gross failure of justice has occasioned thereby. In view of aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned trial court in passing the impugned order and that grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. There is no merit in the present revision petition. The same is, hereby, dismissed. January 28, 2011 (RAM CHAND GUPTA) gsv JUDGE