A.N Jindal, J
This petition assails the order dated 1.4.2009 passed by the Civil Judge (Sr. Division), Jalandhar declining to initiate the contempt proceedings against Subhash Chander, Superintendent, B.D Arya Girls College, Jalandhar Cantt for breach of undertaking given by him on 10.11.2004 for production of record.
Factual background of the case is that the petitioner had filed a suit against the defendant-respondents (herein referred as, ‘the respondents') wherein the petitioner had moved an application directing the respondents through their counsel to produce the documents to enable the petitioner to file effective replication. Despite the fact that the case was adjourned to 7.9.2004 and 11.10.2004, but no record was produced. However, part of the record was produced on 29.10.2004, but the court again directed the respondents No. 1 to 3 to produce the remaining record. On 10.11.2004, Subhash Chander, Superintendent, B.D Arya Girls College, Jalandhar Cantt. appeared in the court and undertook to produce the remaining record as per order dated 27.9.2004 However, the record was not produced. Ultimately, the court struck off the defence.
The petitioner moved an application for initiating contempt proceedings against Subhash Chander, Superintendent B.D Arya Girls College, Jalandhar Cantt for violating the directions of the court.
Reply to the application was filed wherein some preliminary objections were taken. That apart, it was further submitted that since the record was very old, therefore, they had directed the plaintiff to inspect the record in the college. There was no intention to violate the undertaking.
On receiving of the reply, the court framed the issues which are reproduced as under :-
1. Whether the respondent is guilty of willful breach of the written undertaking dated 10.11.2004 given to the court on behalf of officiating Principal?OPA
2. Whether the respondent is guilty of willful dis-obedience of the order dated 10.11.2004 by not producing the record as per the order of the court?OPA
2A. Whether the respondents are liable to be proceeded for contempt proceedings under the law?OPA
3. Whether the application is not maintainable in the present form?OPR
4. Whether the application has become infructuous?OPR
5. Whether the petitioner has no locus standi to file the present application?OPR
6. Relief.
Ultimately, after recording evidence of both the parties, the trial court dismissed the application.
There is no denying a fact that Subhash Chander was not appearing in the court in his personal capacity, but he being the Superintendent of the college was appearing on behalf of the respondents for producing the record in order to enable the plaintiff to file effective replication. The violation of such undertaking entailed the action in accordance with the provisions of Order XI Rule 21 CPC which reads as under :-
“21. Non-compliance with order for discovery - (1) Where any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution, and, if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may apply to the Court for an order to that effect, and an order may be made on such application accordingly, after notice to the parties and after giving them a reasonable opportunity of being heard.
(2) Where an order is made under sub-rule (1) dismissing any suit, the plaintiff shall be precluded from bringing a fresh suit on the same cause of action.”
From the bare perusal of the rule, it transpires that if the party is directed to produce some document for inspection and on failure of production of the same, the party failing to fulfill the obligation would have to face consequences. If he is plaintiff, then his suit shall be dismissed for want of prosecution and if he is defendant then his defence is to be struck out.
The rule does not provide for any penalty by way of contempt against the defaulting party. It is also well settled that where the Code of Civil Procedure provides for consequences in case of breach of any order direction or undertaking then no further contempt could be made and the action could be taken under the relevant provisions of law providing consequence for beach of such rule order or undertaking. The respondent Subhash Chander was not appearing in his personal capacity but as an agent of the defendant for production of the documents and he was not appearing in his own capacity. Thus, non compliance of the order for production of the document, the defence was struck out. The trial court has also further observed that in case the contempt proceedings are initiated against the respondent then that would amount axing the defendant twice for the same default. As such, the contempt proceedings cannot be initiated.
The order passed by the trial court appears to be well founded and well reasoned and does not call for any interference by this Court.
Dismissed.