P.C.

D.K. DESHMUKH, J.

By consent of parties, Appeal itself is taken up for final hearing.

2.By this Appeal, the Appellant, who is the original Plaintiff challenges the order dated 29-1-2003 passed by the learned Single Judge of this Court in Notice of Motion No. 3265 of 2002 in Summary Suit No. 456 of 2000.

3.The facts that necessary and relevant for deciding this Appeal are that the Appellant has filed the Summary Suit No.456 of 2000 claiming a money decree against the Respondents/ original Defendants. The suit is based on the promissory notes, which according to the Plaintiff have been executed by one Shri Mahesh Kantawala, of whom the Defendants are the legal representatives.

4.In this suit, Notice of Motion No. 3265 of 2002 was taken out by the Defendants claiming two reliefs, the first relief that was claimed was for an order vacating the order dated 12-9-2001; the second relief that was claimed was a direction to the Plaintiff to submit the original promissory notes, on the basis on which the Suit has been filed, before the Prothonotary & Sr. Master of this Court, with a direction to the Prothonotary & Sr.Master to forward those promissory notes to the Metropolitan Magistrate before whom Case No.110/Misc./02 is pending.

5.In the affidavit filed in support of the Notice of Motion, on behalf of the Defendants it is claimed that the promissory notes on the basis of which the Suit has been filed are false and fabricated and forged. It is further claimed that the Defendants have filed a criminal complaint before the Metropolitan Magistrate. The Metropolitan Magistrate has in that complaint made an order for production of the original promissory notes. The Defendants in the affidavit claimed that, therefore, it is necessary that this Court directs the Plaintiff to produce the original promissory notes, so that they can be sent to the court of Metropolitan Magistrate.

6.This Notice of Motion was opposed by the Plaintiff. This Notice of Motion has been disposed of by order dated 29-1-2003. The learned single Judge observed that there is no reason why the Plaintiff should object to the production and deposit of the promissory notes before the Prothonotary & Sr.Master and the Court granted the Notice of Motion in terms of prayer clause (b) of that Notice of Motion. The result is that the Plaintiff has not only to deposit the promissory notes with the Prothonotary & Sr.Master, but they are also to be sent to the Metropolitan Magistrate. The learned Single Judge has also made this order applicable to 24 Suits.

7.The learned Counsel appearing for the Appellant submits that the Summary Suit has been filed by the Plaintiff, the question whether the promissory notes on which the Suit is based are the genuine documents or false and fabricated documents is to be decided by the Court when the Court takes up for consideration the Summons for Judgment taken out by the Plaintiff. The Court could not have taken up this question for consideration and directed the Plaintiff to deposit the promissory notes till the Summons for Judgment comes up for final hearing. The learned Counsel submits that the question of directing the Plaintiff to deposit the promissory notes will arise, if the Court at least, prima facie, finds that the promissory notes are false and fabricated documents. Without recording any such prima facie finding, according to the learned Counsel, the Court could not have directed the deposit of the promissory notes and, their remittance to the Metropolitan Magistrate.

8.The learned Counsel appearing for the Respondent/ original Defendants, on the other hand, submits that the Defendants have filed a criminal complaint in the Metropolitan Magistrate Court. According to the learned counsel, the Metropolitan Magistrate can not make an order for production of the documents by the Plaintiff. The reason that is given by the learned Counsel why the Metropolitan Magistrate can not make such an order is that, according to the learned Counsel, that will amount to forcing the Plaintiff to be a witness against himself.

9.From the perusal of the records and the rival submissions, it is clear that the learned Single Judge has directed production of the documents before the Prothonotary & Sr. Master, even when the Summons for Judgment taken out by the Plaintiff is yet to be heard. The learned Single Judge has not considered the case of the Plaintiff that the promissory notes are not false and fabricated documents. In our opinion, occasions to consider this question will arise when the Summons for Judgment taken out by the Plaintiff is heard by the Court. If at that stage, the Defendants come with the case that the documents are false and fabricated and after examining the case of the Defendants, the Court comes, at this stage, to the prima facie conclusion that the promissory notes are false and fabricated documents, then the Court can consider the question whether the original documents are to be deposited in the Court by the Plaintiff. In our opinion, even before the Summons for Judgment is taken up for consideration, there is no justification for directing the Plaintiff to deposit the documents. The order of the learned Single Judge not only directs the Plaintiff to deposit the documents, but it also provides for sending of those documents to the Metropolitan Magistrate Court. So far as the production of the documents before the Metropolitan Magistrate Court are concerned, the matter is governed by the provisions of Cr.P.C. and it is for the Metropolitan Magistrate to make appropriate orders for getting the documents that are necessary for the purpose of proceedings pending before the Metropolitan Magistrate. There can be no justification for this Court to make that order relying on the statement made by the Defendants in their affidavit filed in support of the motion.

10.Taking overall view of the matter, in our opinion, the learned Single Judge at all was not justified in making the impugned order. It is, however, clarified that in case at the hearing of the Summons for Judgment the Court comes to the conclusion that the documents which are subject matter of the Suit are false or fabricated documents, the Defendants would be free to apply to the Court for either seizure of the documents or their production and safe keeping with the Prothonotary & Sr.Master of this Court.

11.In the result, therefore, the Appeal succeeds and is allowed. The order dated 29-1-2003 passed in Notice of Motion No.3265 of 2003 in Summary Suit No. 456 of 2001 is set aside.

Parties to act on ordinary copy of the order duly authenticated by the Associate/Personal Secretary of the Court as a true copy.