1. The application in this revision arises out of proceedings under the Provincial Insolvency Act. On 29th March 1931 the debtor Nathmal executed a promissory-note in favour of the creditor, Premraj, for Rs. 1,750. On 23rd July 1932 Nathmal mortgaged his property to Ramchandra and Premraj applies to have him adjudged insolvent on the strength of this transfer. The only question is whether Premraj is a creditor of Nathmal to the extent of Rs. 500. The appellate Court has not decided this question of fact, but has dismissed the creditor's petition on certain technical grounds. The debtor Nathmal pleaded that he owed the creditor about Rs. 200 only, but said he was not able to give the exact figure without an inspection of the creditor's account books. Accordingly he asked on 10th February 1933 for permission to inspect these books, and the Court allowed his application. No steps appear to have been taken by either side, and on 18th August 1933 Nathmal again made an application, this time asking for time to inspect the books. No order appears to have been passed on that application, but on the next hearing, th November 1933, I find, the following order:
Applicant is wanted as witness by non-applicant and applicant has to requisition his own account books in charge of a Commissioner. The applicant is not entitled to any adjournment, but still I allow him one chance. Next date for evidence of applicant was 25th January 1934.
2. On the next date the applicant stated that he was unable to produce his account books, as they had been filed in the Court at Amraoti.
3. This does not seem to have been disputed. But the trial Court drew an adverse inference from this non-production of the books, and held that he had not proved that his debtor owed him Rs. 500. The appellate Court does not appear to have given any finding on this. But it stated that the fact that the creditor had not produced his books in the face of the express orders of the Court to produce them would entitle the Court to dismiss his petition under the discretionary powers conferred by Section 25 of the Provincial Insolvency Act, and it adds: “I therefore see no reason to interfere with the discretionary powers of the lower Court.” Whether the first Court had any such discretionary powers or not is open to question. But if it had it certainly did not exercise them. There loan be no unconscious exercise of jurisdiction or powers. So the appellate; Court is wrong in basing its decision on discretionary powers which have never been exercised. It would of course have been open to the appellate Court to have exercised those powers itself, if it had wanted to do so, and I am prepared to accept the position that it has done so. Therefore the question whether S. 25 confers these powers or not must be decided. The words “for any other sufficient cause” in S. 25 cannot be taken to override an express provision of law, especially on a question of procedure. Section 5 of the Provincial Insolvency Act states that subject to the provisions of the Act, the Court in regard to proceedings under it shall have the same powers, and shall follow the same procedure as it has and follows in the exercise of original civil jurisdiction. We have therefore to see what provisions the Code of Civil Procedure makes in matters of this kind.
4. So far as the order for production of documents is concerned, O. 11, R. 14, states that a Court may order production of such documents as are in the possession or power of a party to the suit, and O. 11, R. 21, provides the penalty for non-compliance with such a direction. The documents in this case were not either in the possession or power of the creditor. When documents have been filed in a Court, they are in the possession and power of the tribunal concerned. It is true the Court may, and in a case of this kind very probably would, return the documents on application being made to it. But it is not bound to do so, and that must always be the test of power. Therefore the Court would have had no jurisdiction to proceed under O. 11, R. 21, and if it could not have proceeded under that rule it could not have proceeded under the general provisions of Section 25 of the Provincial Insolvency Act. Consequently I am of opinion that the appellate Court acted without jurisdiction in dismissing the creditors's petition on that ground. The next point refers to the question of burden of proof. Both Courts have laid this on the creditor mainly because he has not produced his accounts. This also is wrong. The position has been elaborately considered in 61 Cal 711 1935 Cal 39 , 154 IC 479 , 61 Cal 711, at pp. 731 and 732. The learned Judges of the Calcutta High Court have quoted the decisions of their Lordships of the Privy Council stating that:
It is open to a litigant to refrain from producing any evidence, not forming part of his case, that he considers irrelevant; if the other litigant is dissatisfied it is for him to apply for its production and inspection as evidence in the cause if he thinks proper; if this is not done the Court is not entitled, at his suggestion, to draw an adverse inference, and that the presumption will not arise when there is sufficient explanation.
5. In the present case I am of opinion, that the account books did not necessarily form any part of the applicant's case. He filed his application on a promissory note executed by the debtor Nathmal. The debtor stated that he did not receive the full consideration under it. The creditor replied that the entire Rs. 1,750 was paid in cash. The burden of proof therefore lay on the debtor to prove that he did not receive that sum. The initial burden of proving that the debtor owed Premraj Rs. 500 or more, of course, lay on Premraj. But the moment he produced the note, and its execution was admitted by Nathmal then the burden shifted to Nathmal. It is urged however on the strength of the first Court's finding, that one of the creditor's own witnesses admits that as much as Rupees 1,020-13-0 out of the consideration was on account of old dues, and not cash, that the burden shifted back again to the creditor. 15 C.P.L.R 24 (1902) 15 CPLR 24 is direct authority against this view. It states that a mere admission that the actual consideration was different from that described in the contract does not shift the burden of introducing evidence. So even if this statement by one of the creditor's witnesses can be construed as an admission by him, it would not be enough to shift the burden of proof. The witness can be disbelieved, or the debtor can rely on him to prove that the consideration to that extent was not cash. But he would still have to prove that the balance of it, namely, Rs. 729-3-0, had not been received in cash.
6. The ruling in 1924 All 256 1924 All 256 , 80 IC 717 which was quoted on behalf of the debtor establishes that very proposition. The note in that case was for Rs. 8,000. It was later admitted that Rs. 2,300 of this had not been paid in cash but in kind, and it was held that the plaintiff had not established this. But nevertheless a decree for the balance of Rs. 5,700 was passed in his favour on the strength of the recital in the promissory note. If the same principle is applied here, it would follow that Nathmal's debt to the extent of Rupees 729-3-0 at least remains, unless the debtor Nathmal proves that it was less.
7. It has been argued that the appellate Court has confirmed the findings of the first Court, and that since this is a pure question of fact, I have no jurisdiction to interfere. I am unable to find any portion of the judgment which deals with the facts. Para. 2 merely contains a recital of what happened in the lower Court. Para. 3 commences with the arguments adduced before the appellate Court with respect to the burden of proof, and the presumptions and counter-presumptions created in the case. It concludes by stating that the trial Court had ordered the applicant to produce his account-books, and that this order was correct. It is true the learned Judge says that this order was “also” correct, but I have been unable to find the other order which he also considered correct. Therefore I do not think that he intended to deal with the case on the merits at all. However if he has done nothing more than accept the finding of the first Court, then since that finding proceeded upon a wrong basis, in so far as it threw the burden on the creditor, it would have to be upset in any case. The case will therefore be remanded to the appellate Court for a decision on the merits. Costs will abide the event. Pleader's fee Rs. 25.
K.S/R.K
8. Case remanded.