IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. C. R. No. 81/2009 Date of Decision : 5.10.2009 Parkash Mahajan …Petitioner. Versus: Brestu Ram Bhatia …Respondent. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the petitioner: Mr. Ramakant Sharma, Advocate. For the respondent. None Sanjay Karol, J. (Oral). The plaintiff/petitioner herein filed a suit for recovery of a sum of Rs.30,205/- along with interest, pleading that the defendant/respondent herein had purchased, on credit basis Cement and Saria (iron rods) worth Rs.1,34,205/- on 2.9.2004 and 14.1.2005. Only a sum of Rs.1,04,000/- was paid and a balance suit amount remained unpaid. The defendant opposed the suit inter alia on various grounds. Opportunity to lead evidence was afforded to the parties and when the matter was fixed for final arguments, the plaintiff moved an application under Order 7 Rule 14 CPC seeking permission to place on record Bill Book, Ledger, daily 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 record book, sale tax record to prove the aforesaid transactions. The application having not been entertained by the court below in terms of its order dated 20.5.2009, the plaintiff has filed the present petition. I have heard the learned counsel for the petitioner and also gone through the record. The defendant has chosen not to enter appearance inspite of service in the present petition. While dismissing the application, the Court below has returned the following findings:- “It is observed by this Court that provision of Order 7 Rule 14 is not applicable to the present case, but present case is fall under the provision of Order 7 Rule 17 read with Order 7 Rule 18. The Order 7, R 17 CPC provides production of shop books (1) Save in so far as is otherwise provided by the Bankers Books Evidence Act, 1891 (18 of 1891), where the document on which the plaintiff sues is an entry in a shop-book or other account in his possession or power, the plaintiff shall produce the book or account at the time of filing the plaint, together with a copy of the entry on which he relies. Order 7 Rule 17 CPC clearly provided that when original document is not presented alongwith the plaint as provided by the rule and the plaint is registered, is not a ground for rejecting the plaint; however, the plaintiff cannot afterward produce the document in evidence without the leave of the Court. Since Order 7 Rule 18 CPC has been repealed by the Code of Civil Procedure (Amendment) Act, 2002. It is, therefore, the 3 present application of the plaintiff/applicant for production of daily record book, ledger and sale tax record cannot be allowed as it will seriously prejudice the interest of defendant/ respondent. The law underlying the order 7 rule 17 is specifically designed for the cases where the plaintiff sues on the basis of the entry in the shop book or account book in his possession or power. Plaintiff is required to produce the book or account at the time of filing the plaint, together with a copy of the entry on which he relies. It is further provided under the Order 7 rule 17(2) CPC that court either itself or through its officer mark the document for the purpose of identification and, after examining and comparing the copy with the original certify it to be correct. But in this case no provision underlying the order 7 rule 17 has been complied with. Whereas, this provision for marking and identification of ledger and account book at the time of the filing of plaint is designed to overrule the possibility of fabrication of account book and ledger suitable to the claim put forth. Therefore, if the application is allowed it would frustrate the mandatory provision of order 7 rule 17 cpc. Furthermore, the application for the production of the documents sought to be produced by the plaintiff is filed by the plaintiff/applicant after exorbitant delay. Application was filed when parties have already led their respective evidences and case was finally listed for arguments. Moreover, these documents are not public documents and it can be concocted or fabricated by the plaintiff/applicant to the prejudice of defendant/ respondent. Since the application has been moved by the plaintiff/applicant at the stage of final arguments of this case, where the plaintiff/applicant found lacuna his 4 case and in order to fill up the lacuna, present application is moved. In my view, at this stage if application is allowed, it will surprise the defendant and will seriously prejudice the interest of defendant/ respondent in his defence.” Order 7 Rule 17 CPC reads as under:- “17. Production of shop-book- (1) Save in so far as is otherwise provided by the Bankers’ Books Evidence Act, 1891 (18 of 1891), where the document on which the plaintiff sues is an entry in a shop-book or other account in his possession or power, the plaintiff shall produce the book or account at the time of filing the plaint, together with a copy of the entry on which he relies. (2) Original entry to be marked and returned- The Court, or such officer as it appoints in this behalf, shall forthwith mark the document for the purpose of identification and, after examining and comparing the copy with the original, shall, if it is found correct, certify it to be so and return the book to the plaintiff and cause the copy to be filed.” Evidently, the suit for the plaintiff is based on business transactions and entered into between the parties and hence keeping in view the provisions of Order 7 Rule 17 CPC, it was incumbent upon the plaintiff to have filed the documents at the time of filing of the plaint. The Court below has correctly appreciated the provisions of law and applied the same to the instant facts. 5 The application for placing on record the documents is also cryptic and lacks material particulars. The place and the time when the plaintiff found these documents which allegedly were misplaced at the time of carrying out renovation of his shop in the year 2005 has not been mentioned. That apart this fact has also not been stated so in the plaint at the time of filing the plaint which was in the year 2007. The Court below has rightly held that the application was filed to fill in the lacuna and that too at the stage of final hearing. For the aforesaid reasons, I find no illegality, perversity or impropriety in passing of the order by the Court below. The petition does not merit interference and is accordingly dismissed. ( Sanjay Karol ), Judge. October 5, 2009 (rana)