JUDGMENT :

SANDEEP SHAH, J.

1. By way of filing the present Civil Miscellaneous Appeal under Order XLIII Rule 1(f) CPC, 1908, the appellants–plaintiffs have challenged the order dated 03.09.2008 passed by the learned Additional District Judge, Bhadra in Civil Suit No. 08/2003 (Om Prakash & Ors. v. Balwant & Ors.), whereby the application filed by the respondents/defendants under Order XI Rule 21(1) CPC was allowed and the suit was dismissed on the ground of alleged non-compliance, of the order dated 23.03.2006 passed by learned Trial Court, by the appellants.

Factual Matrix:-

2. Succinctly stated, the facts are that the appellants–plaintiffs filed a suit alleging therein that the lands, particulars whereof are in paragraphs no.1 and 2 of the plaint, were owned by respondent Nos.1 and 2, who had agreed to sell the same to the appellants for a total consideration of Rs.6,30,000/-. Pursuant to the verbal agreement, a written agreement dated 09.04.2001 was executed, and the appellants–plaintiffs paid a sum of Rs.5,57,000/- by different cheques, with a specific understanding that the balance amount of Rs.73,000/- would be paid at the time of registration of sale deed. The period for execution of the sale deed was fixed as two years. According to the appellants–plaintiffs, they regularly contacted the respondents–defendants, and the defendants asked the appellants–plaintiffs to be present for registration on 01.04.2003, however, the respondents–defendants did not turn up.

2.1. Upon inquiry initiated by the appellants–plaintiffs at the office of the Patwari on 17.06.2003, they came to know that respondent Nos.1 and 2 had filed a suit for transfer of the lands in favour of their sons and wives and, by virtue of a judgment and decree dated 20.09.2002, the lands in question had been transferred in the names of respondent Nos.3 to 7, i.e., the sons and wives of respondent Nos. 1 and 2. Further, the revenue records also reflected the names of respondent Nos.3 to 7. Consequently, the appellants–plaintiffs filed a suit for specific performance of the agreement dated 09.04.2001 along with other reliefs on 03.07.2003.

3. After receipt of notice, the respondents filed a written statement, alleging that the appellants and their father, Shri Ranglal, originally resided at Village Nethrana but later shifted to Bhadra, where they were running a cloth shop and an electrical equipment shop on the Bhadra main road. It was further alleged that the appellants were engaged in the business of purchasing grains from farmers. The defendants stated that since 1995–96, they had also been selling their produce to the appellants and on 09.04.2001, they approached the appellants for a sum of Rs.1,10,000/- as they were in need of money. The appellants advanced the said amount; however, under the pretext of preparing certain documents for income tax purposes, the appellants fraudulently obtained their signatures on the agreement in question. The respondents–defendants further stated that they had repaid the entire amount taken on 09.04.2001 and, despite the same, the appellants were showing an outstanding amount of Rs.4,48,416/-. Thus, they prayed for dismissal of the suit.

3.1 That on 24.08.2005, respondent Nos.1 and 2 filed an application under (without specifying any Provision/Rule/Order, under which the same was filed), stating therein that, as asserted in the written statement, the defendants had been engaged in business transactions with the appellants since the year 1995–96. To substantiate the same, appellant Om Prakash had provided photocopies of the account books to the defendants for the period from 23.05.1999 to 05.05.2001, which formed part of the record of the case, wherein the entry dated 09.04.2001 was also reflected. It was further asserted that the said entry was made by appellant-Om Prakash himself and that the original record was in his possession. It was thus contended that there was a requirement to produce the original record, as the statements of