Common Order:

C.R.P.No.614 of 2009 is filed by the revision petitioner-defendant being aggrieved upon an order dated 20-11-2008 made in I.A.No.583 of 2008 in O.S.No.416 of 2006 on the file of the Principal Junior Civil Judge, Adoni. Likewise C.R.P.No.717 of 2009 is filed by the self same revision petitioner-defendant being aggrieved upon an order dated 20-11-2008 made in I.A.No.582 of 2008 in O.S.No.399 of 2006 on the file of the Principal Junior Civil Judge, Adoni.

2. Heard Sri K. Sitaram, learned counsel representing the revision petitioner and Sri R.V. Nagabhushana Rao representing Sri R.V. Prasad, learned counsel representing the respondent, in both the C.R.Ps.

3. Sri K. Sitaram, learned counsel representing the revision petitioner-defendant in both the C.R.Ps, would maintain that the learned Principal Junior Civil Judge, Adoni totally erred in making the aforesaid orders, since there is no provision in the Code of Civil Procedure (for short ‘the Code’) which enables the court to return a document, which is marked in evidence as an exhibit. He also would maintain that the learned Judge ought to have seen that the trial of the suit had already commenced and Ex.A.1 was marked, and at that stage, if Ex.A.1 is allowed to be replaced, it would cause serious prejudice to the revision petitioner. He also would maintain that when the respective respondents in both the C.R.Ps/plaintiffs in both the suits - the father and the son, had not been diligent in prosecuting the litigations, orders of such nature could not have been made. Hence both the C.R.Ps have to be allowed.

4. On the contrary, Sri R.V. Nagabhushana Rao representing Sri R.V. Prasad, learned counsel representing the respondent in both the C.R.Ps, would maintain that it is just a bonafide mistake and in the light of the reasons, which had been recorded in detail, though Order XIII Rule 9 of the Code as such may not be applicable to the facts on hand, the learned Judge is well justified in making such an order under Section 151 of the Code. Hence, the orders under challenge need no disturbance at the hands of this Court, especially, under Article 227 of the Constitution of India.

5. Both the C.R.Ps are being disposed of by a common order, in view of the commonality of the facts and also the questions involved.

6. The applications aforesaid had been filed under Order XIII Rule 9 r/w Section 151 of the Code to send the promissory notes filed in the respective suits to the other suit. It appears both the father and the son filed two suits on the strength of promissory notes and due to a bonafide mistake of the clerk, the promissory note standing in the name of the father was filed in the suit filed by the son and likewise, the promissory note standing in the name of the son was filed in the suit filed by the father and inasmuch as this is a bonafide mistake, the promissory notes are either to be returned to the counsel representing the respective plaintiffs or to be sent to be filed in the appropriate suits. It is needless to say that both the suits are pending before the learned Principal Junior Civil Judge, Adoni.

7. The learned Judge, after formulating a point for consideration and recording the reasons at paras 6 and 7, relied on a decision in Gowardhan Das Vs. State of Maharashtra, AIR 2008 (NOC) 1755 (BOM.), and ultimately came to the conclusion that in the interest of justice it would be just and proper to send the document marked as Ex.A.1 to the appropriate suit, and accordingly, allowed the applications aforesaid. Aggrieved by the same, the present C.R.Ps had been preferred.

8. Order XIII Rule 9 of the Code dealing with return of admitted documents reads as hereunder:

“(1) Any person, whether a party to the suit or not, desirous of receiving back any document produced by him in the suit and placed on the record shall, unless the document is impounded under Rule 8, be entitled to receive back the same—

(a) where the suit is one in which an appeal is not al