Krishnan, J. — In this case, the defendant had applied to the Subordinate Judge, for an order of discovery of documents, against the plaintiff, under O. 11, R. 12, Civil Procedure Code. The learned Judge refused to give such an order but directed the defendant to file a list of documents, which he alleged were with the plaintiff and on his doing so passed an order under R. 14, directing production of such documents upon oath. The plaintiff produced certain documents in Court and prayed the Court to keep them under lock and key. He also filed an affidavit. Under the Subordinate Judge's orders, the documents were kept under lock and key. The defendant then applied for the inspection and by a separate order after hearing parties, inspection was ordered of the documents filed in Court by the plaintiff. On defendant inspecting those documents, he found that some of the documents included in his lists were not produced, in particular, the rough chitta books he had asked for. Thereupon, the defendant applied to the Court to take action under O. 11, R. 21, and to dismiss the suit. The Subordinate Judge, dismissed the application, holding that the rule did not apply to cases of non-compliance with an order for production and that the order for inspection, which referred only to documents filed in Court, was fully complied with. The appeal to us is by the defendant, against that order of the Subordinate Judge.
R. 21 in terms does not apply to an order for production; it speaks only of interrogatories or discovery or inspection. In the repealed Code, the words “or production” were in the corresponding section but they have been omitted in the new Code. It is argued that the omission is due to a desire to avoid redundancy, as an order for production implied discovery and inspection. The opinion of Broadway, J., of the Lahore High Court, in the case reported in Ram Nath v. Parabhu Dayal(1), is cited in support of the argument that the object of the omission was to avoid redundancy. The learned Judge does not give a very decided opinion on the point; nor has he discussed the question. On the other hand, a Bench of the Allahabad High Court has held that the R. 21 does not apply to cases of “production” orders. With all respect to the opinion of the learned Judge of the Lahore High Court, I am unable to follow his view. In the corresponding English Rule, O. 31, R. 21 of the English Rules of Practice, the words “or production” do not occur and it was apparently to bring the practice here into conformity with the English practice on the point that the omission was made. An order for production is quite different from an order for discovery, or an order for inspection and cannot be said to imply either. In the present case, the order for discovery was refused and the order for inspection was passed, as a subsequent order. It is impossible to hold, therefore, that in the present case the order for production was anything more, than for bare production in Court of specified documents. In the case, Jay v. Hadely, the order was for production and inspection, it was in reality an order for inspection in Court of documents to be produced in Court for the purpose. That case is thus not an authority on the point before us. Some support was sought to be drawn from the wording of Form 6, under O. 11, R. 14, first Schedule, Appendix C, of the Code. That Form can be properly used, only where the order is “produce for inspection”, as the title of the Form shows. R. 14, contemplates further orders being passed, on the documents being produced. An order for inspection of documents may, I think, therefore be passed under that Rule itself, after hearing parties. R. 18, also enables a party to obtain an order for inspection. Form 6 cannot be relied on, as showing that ah order under R. 14, involves an order for inspection, for documents may be directed to be produced in Court, for various other reasons, for example, for preventing tampering with them.
It was suggested that if we do not apply the provisions of R. 21, in cases of orders for production, there will not be a sufficiently effective method to make the party obey the order of the Court. There is no basis for this argument; for there are several ways of making a party produce a document shown to be in his possession and for which privilege is not established, and the presumption that arises against a party who is called upon and does not produce a document in his possession or power is in itself of serious consequence to him.
In the view I take, R. 21 does not apply to orders for production, and the appeal fails. It is true that plaintiff has not definitely stated in his affidavit, whether he has the chitta books with him or not. Defendant may apply to the Lower Court to call for a further affidavit from him. Defendant can always take any further steps, he may be advised to, under the rule for inspection. This appeal fails and is dismissed with costs.
Waller, J:—I agree.
K. V. S.Appeal dismissed.