IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TWENTYNINETH DAY OF JULY TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Revision Petition No.1468 of 2011 Between: Rajender Bang .. Petitioner AND Kali Raj and another .. Respondents ORDER: Heard Sri N. Bhavani Sankar, learned counsel for the revision petitioner and Sri K. Venkatesh Gupta, learned counsel for the 1st respondent. The Civil Revision Petition is directed against the order in I.A.No.646 of 2010 in O.S.No.53 of 2008 on the file of the Court of I Additional Senior Civil Judge (Fast Track Court), Mahabubnagar, dated 26-11-2010 dismissing the petition to summon the Manager of Vysya Bank, Mahabubnagar Branch, New Town to produce the specified documents. The plaintiff claimed that the cheque transaction on which the suit was based has to be substantiated through the evidence of the Manager of the Bank in respect of issuance of the cheque book, the account maintained by the 1st respondent herein and his specimen signatures etc. Therefore, he sought for production of the account opening form of Savings Bank Account No.8284 along with specimen signature card of the 1st respondent herein, the ledger account sheet of the said account and the cheque return details of cheque bearing No.0714023, for Rs.2,50,000/-. The request was opposed by the 1st respondent contending that the petition was intended to drag on the matter notwithstanding the specific admission in the written statement about the deposit of the cheque in blank form with Vijaya Laxmi Finance and any summoning of the Bank Manager is impermissible and irrelevant. The trial Court passed the impugned order opining that what is not permissible directly cannot be permitted indirectly and when there is no primary evidence concerning a document, no secondary evidence or oral evidence should be permitted to be adduced. The trial Court felt that due to non-filing of the originals, the plaintiff cannot seek the reliefs he sought for and it also opined the petition to be not bona fide and is intended to drag on the proceedings. The said order of dismissal on such grounds is the subject of challenge in this Civil Revision Petition in which it was contended that the certified copies of cheque and cheque return memo were already permitted by the trial Court to be admitted into evidence as Exs.A.2 and A.3 and the deposition of the Bank Manager as the person competent to speak about the transactions is absolutely necessary. The point for consideration is whether the trial Court ought to have permitted the plaintiff to summon the Bank Manager for the purpose stated? The counter affidavit of the 1st respondent herein itself discloses that though the signature of the 1st respondent on the cheque itself is not in dispute, it was stated to have been issued in blank form in favour of Vijaya Laxmi Finance, which was utilized by the father-in-law of the plaintiff for making the claim. The admission by the 1st respondent herein about the signature on the cheque is not an admission of the suit transaction as claimed by the plaintiff and if so, the plaintiff is obliged to prove the issuance of the cheque in the manner claimed by the plaintiff by the 1st respondent, if the plaintiff were to sustain the suit claim. Learned counsel for the revision petitioner submitted that the original cheque and its return memo were filed before the concerned Criminal Court in the case instituted under Section 138 of the Negotiable Instruments Act, 1881 and consequently, their certified copies were marked as Exs.A.2 and A.3 in the civil suit. The non- production of the originals in the civil suit can thus be considered to have been satisfactorily explained and the Branch Manager is not being attempted to be summoned for speaking about the originals of Exs.A.2 and A.3, but to produce documents, which, in the opinion of the plaintiff will probablise the period during which the cheque book was issued from which the subject cheque came to be issued and such other relevant details. The question of withholding of primary evidence and inadmissibility of any oral evidence, therefore, does not arise. The requirement under Order 16 Rule 1 of the Code of Civil Procedure referred to by the trial Court about the list of witnesses is only directory in nature and in appropriate cases, notwithstanding the non-filing of such documents within the prescribed period fixed by the Court, it is always within the judicial discretion in the interest of justice to summon a witness. The grounds on which the trial Court refused the request, therefore, do not appear justified and the opportunity to the plaintiff to summon the Bank Manager to provide circumstantial support to the transaction claimed under the suit cannot be denied. Therefore, the order dated 26-11-2010 in I.A.No.646 of 2010 in O.S.No.53 of 2008 on the file of the Court of I Additional Senior Civil Judge (Fast Track Court), Mahabubnagar is set aside and the said I.A.No.646 of 2010 is allowed and the Branch Manager of ING Vysya Bank, New Town, Mahabubnagar Branch shall be summoned by the trial Court to produce the documents required in I.A.No.646 of 2010 on payment of required process and batta etc., by the plaintiff. It is needless to state that any observation made in this order shall not influence the determination of the suit on merits by the trial Court in appreciation of the rival contentions and evidence. The Civil Revision Petition is ordered accordingly without costs. _____________________ G. BHAVANI PRASAD, J Date: 29-07-2011 Ksn