Short Note : 1. This is plaintiffs appeal filed against an order of remand passed by the third A.D.J., Gwalior. 2. The controversy between the parties centres round only on two points viz. :- (1) Whether the trial Court was right in rejecting the application dated 14-2-1967 under Order 13, rule 2 whereby prayer was made for permission to produce certified copies of Khasras of Samvat 2005 and Samvat 2010 to 2014 (the date put on the application is 15-2-1967 and curiously endorsement of the Court is also dated 15-2-1967 whereas in she order-sheet it is mentioned that after hearing arguments on 14-2-67, the application was filed on the same day. (2) Whether the trial Court acted illegally in closing the evidence of the defendant without giving him opportunity to summon file No. 39/59-X 91 from the record of Tahsil, Gwalior on the basis of which the statement of Nazir was to be recorded although it was duly summoned and the clerk of the Tahsil had stated on the relevant date that the Nazir was examined, that he is not able to trace out the file. Held : As to the first contention, the argument of the learned counsel for the appellants appears to be correct that the application is not even supported by an affidavit but in the peculiar facts and circumstances of the present case, power under Order 13, rule 2 appears to have been erroneously refused to be exercised by the trial Court. Firstly, in the list of evidence filed by the defendant, it was stated that he has filed copies of the Khasras which he will produce when they are obtained. Secondly, the copies of the Khasra sought to be reproduced are certified copies and as such they are public documents. Therefore, the trial Court acted too technically in the matter and the rejection of the application on the ground of its being filed at a late stage was not in consonance of principles of justice. The Code of Civil Procedure is not a penal enactment and on every failure a party cannot be tripped up, costs would have been enough to compensate the plaintiff and punish, if at all, the defendant it was on account of his latches in the matter. Therefore, when the learned A.D.J., has awarded costs for the purpose at Rs. The Code of Civil Procedure is not a penal enactment and on every failure a party cannot be tripped up, costs would have been enough to compensate the plaintiff and punish, if at all, the defendant it was on account of his latches in the matter. Therefore, when the learned A.D.J., has awarded costs for the purpose at Rs. 50/- it cannot be said that he has acted in any manner contrary to law. Although the plaintiff has also not prayed for an opportunity to rebut the Khasra entries now sought to be brought on record by the defendant yet in the interest of justice it appears necessary to afford an opportunity to the plaintiffs to lead any evidence in rebuttal, if they so elect and the trial Court will afford an opportunity to that effect to the plaintiff appellants. 3. As to the second contention, the fault also lies on the defendant although the defendant has taken all precautions in applying for requisitioning of the record from Tahsil and although the Tahsil clerk had stated on the relevant date that he has not brought the file yet the defendant proceeded to examine Nazir. No application was moved to the trial Court for deferring the statement of Nazir till relevant record was in the Court. But on account of this inaction of the defendant visiting of penalty by depriving him the right to examine Nazir on the basis of the relevant record is not justified. The trial Court had held against the defendant inter alia on the ground that the factum of delivery was not proved by calling the original record. 4. Accordingly, in view of the inaction of the defendant in not making proper application for deferring the statement of Nazir, it appears necessary to saddle him with a further cost of Rs. 50/-. Appeal partly allowed.