(18.05.2017) The instant civil revision has been preferred to challenge the order dated 14.07.2016 passed in Civil Suit No.94A/2016 by the Court of XIVth Civil Judge Class II, Gwalior by which the application under Order XI Rule 21 of the Civil Procedure Code (for brevity 'CPC') filed by the present applicants/defendants has been dismissed.
2. The facts necessary for adjudication of the present case are that, the respondent/plaintiff filed a suit for eviction, recovery of arrears of rent and mesne profit with respect to the suit property, more particularly described in para 1 of the plaint (Annexure P-2). The present respondent/plaintiff filed a list of documents which are relied upon by him in order to establish his case. The trial Court invited defendants to file their written statement. However, the defendants/applicants moved an -( 2 )- Civil Revision No.114/2016 application under Order XI Rules 12, 14 read with Section 151 of CPC, on the ground that the list of documents indicated in the table termed as list of reliance' refers to several documents, however, their copies have not been supplied to the defendants. Further, it has not been indicated whether the respondent/plaintiff is in possession of these documents or not. Due to these contingencies, the present applicants/ defendants are unable to file their written statement.
3. The application came for consideration on 7.5.16 and on such date, the same was partly allowed and the present respondent/plaintiff was directed to furnish description of the documents referred to in the table termed as list of reliance as also to indicate whether the documents are in his possession or not. The respondent/plaintiff was further directed to supply the copy of the documents to the applicants/defendants in order to enable the defendants to file their written statement.
4. The present respondent/plaintiff obeyed the direction issued by the court below on 7.5.16 and furnished an affidavit alongwith the description of the documents. The perusal of the affidavit indicates that the respondent/ plaintiff declared as to which are the documents those are in possession of the respondent/plaintiff. -( 3 )- Civil Revision No.114/2016
5. The present applicants/defendants being dissatisfied with the steps taken by the respondent/plaintiff, in compliance of the order dated 7.5.16 passed by the trial Court, an application under Order XI Rule 21 of CPC was preferred to seek dismissal of the suit for non-compliance of the order dated 7.5.2016. This application by the applicants/defendants suffered rejection vide impugned order dated 14.7.16 as according to the view of the trial Court, the respondent/plaintiff substantially complied with the order dated 7.5.16. In this backdrop, the applicants/defendants have moved this Court.
6. The learned counsel for the applicants/ defendants submitted that the order dated 7.5.16 is unambiguous and clearly directs the respondent/plaintiff to provide for complete description of the documents relied upon by him indicated in the list of reliance. However, the respondent has not complied with the order dated 7.5.16 in letter and spirit which mandates supply of certified copies of the said documents. In order to substantiate this contention, the learned counsel has relied upon the observation made by the court in the concluding paragraph of the order dated 7.5.16 whereas the respondent/plaintiff has evaded the order dated 7.5.16 by not furnishing the certified copies of the documents relied upon -( 4 )- Civil Revision No.114/2016 him rather the respondent/plaintiff has flagrantly violated the order dated 7.5.16 by mentioning that the documents shall be supplied as and when found necessary during the pendency of the suit. Moreover, it was also contended that the affidavit which was filed on 22.6.16 was clearly captioned as under Order XI Rule 13 of CPC. Thus, the court below erred in ignoring the fact that there was no affidavit filed with respect to the Order XI Rule 12 of CPC. Therefore, in sum and substance, the contention of the learned counsel for the applicants/defendants is that the documents were also directed to be supplied for enabling the defendants to file their written statement which has remained non-complied. Further, the declaration in terms of Order XI Rule 12 of CPC is not sufficient.
7. Per contra, the learned counsel for the respondent/plaintiff submitted that the applicants/defendants are not considering the domain of Order XI Rule 12 of CPC as the same does not include non-production of the documents within its ambit. Further, the declaration mandated by the Order XI Rule 12 of CPC is only with respect to the status of possession of the documents sought to be discovered. The respondent/plaintiff has duly complied with the portion of the order dated 7.5.16 and fulfilled the scope of Order XI Rule -( 5 )- Civil Revision No.114/2016
12 of CPC. Consequently, it was contended that the trial Court has not committed any error in rejecting the application under xi rule 21 of cpc preferred by the applicants/defendants.
8. In the light of the above, the questions which arise for consideration by this Court are that firstly, whether the non-production of the documents by plaintiff is fatal and will the suit suffer the consequences provided under Order XI Rule 21 of CPC or not. Secondly, whether the affidavit furnished by the respondent/plaintiff on 22.6.16, is sufficient compliance of the mandate provided under Order XI Rule 12 of CPC or not. Thirdly, whether the trial Court committed error in dismissal of the application under Order XI Rule 21 of CPC or not.
9. Before recording findings of this Court with respect to the case at hand it is apposite to deal with the question framed hereinabove.
10. The first question relates to the ambit under Order XI Rule 21 of CPC vis-a-vis non- production of documents. In this regard, it is appropriate to refer to the judgment of this Court in case of Archdiocese of Bhopal vs. Hasan Kabir, 2009 (4) M.P.L.J 530 , in which while dealing with the aforesaid question of non-production, the Division Bench of this Court has recorded its observation in the following manner :-
8. A bare reading of Rule 21 of Order 11, Civil Procedure Code makes -( 6 )- Civil Revision No.114/2016 it clear that the provision entails non- compliance of the order to answer interrogatories. Interrogatories are dealt with under Rule 1 to Rule 11 of Order 11. Rule 12 of Order 11, Civil Procedure Code deals with application for discovery of documents. Inspection of the documents which is referred to in Rule 21 is again dealt with in Rule
15 to 18 of Order 11, Civil Procedure Code. The Order 11 Rule 1, Civil Procedure Code enables party to a suit to make discovery by interrogatories by leave of Court. Rule 2 of Order 11, Civil Procedure Code provides that particular interrogatories to be submitted to the Court, and factors to be taken into consideration. Order 11 Rule 11 provides that when any person omits to answer or answer insufficiently the Court may on application, direct to answer or further answer. The Court orders discovery of document under Rule 12 of Order 11, Civil Procedure Code. The Rule 18 of Order 11, Civil Procedure Code provides that where the party served with notice under Rule 15 omits to give such notice of a time for inspection or objects to give inspection, or offers inspection elsewhere than at the office of his pleader, the Court may, on the application of the party desiring it, make an order for inspection in such place and in such manner as it may think fit. In case plaintiff fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, be liable to have his suit dismissed for want of prosecution. In case of defendant not complying with the provision, his defence can be struck off and he may be placed in the same position as if he -( 7 )- Civil Revision No.114/2016 had not defended. It is further required that party interrogating or seeking discovery or inspection may apply to the Court for an order to that effect and by way of amendment which has been inserted with effect from 1- 2-1977 the order may be made under Order 11, Rule 21, Civil Procedure Code after notice to the parties and after giving them reasonable opportunity of being heard. The sine qua non for exercising the power under Rule 21 is failure to answer the interrogatories, order of discovery or inspection of documents. Non- compliance of Rule 14 which is with respect to production of document is not covered under Rule 21, Civil Procedure Code. Legislature has thought it appropriate in case of plaintiff if he fails to comply with the order relating to interrogatories, discovery or inspection of documents a suit be dismissed or in case of defendant his defence may be struck off. Legislature in its wisdom has not included in Rule 21 of Order 11, Civil Procedure Code such a penal consequence due to non-compliance of order passed under Order 11, Rule 14 Civil Procedure Code. Moreover, in the instant case, it is not in dispute that no application was filed for dismissal of suit under Order 11, Rule 21, Civil Procedure Code which is condition precedent for exercise of the power under the aforesaid provision, thus, even assuming for a moment that aforesaid provision was applicable, it was not open for the trial Court to have passed the order dismissing the suit. An order under Order 11, Rule 21, Civil Procedure Code can be passed only on an application and that too after giving notice to the parties -( 8 )- Civil Revision No.114/2016 and giving them reasonable opportunity of being heard. It is also provided in sub-rule (1) of Rule 21 of Order 11, Civil Procedure Code, the plaintiff shall be precluded from bringing a fresh suit on the same cause of action. This dire consequence is not provided with respect to non- compliance of Order, 11 Rule 14, Civil Procedure Code.
15. In view of above, we hold that due to non-compliance of provision under Order XI Rule 14 of CPC suit cannot be dismissed under Order XI Rule 21 of CPC. It can be dismissed only in the exigencies such as due to non- compliance of orders interrogatories, discovery or inspection as envisaged under Order XI Rule 21 of CPC.
11. The perusal of the reproduced portion of the judgment needs no iota of doubts that the contention of the learned counsel for the applicants/defendants is misplaced and deserves to be repelled.
12. The next question is with respect to the affidavit filed on 22.6.16 by the respondent/ plaintiff as to whether the same fulfills the mandate under Order XI Rule 12 of CPC. The perusal of the Order XI Rule 12 of CPC indicates that the party concerned, which is confronted with an application under Order XI Rule 12 of CPC, is required to give a declaration as to the status of the possession of the documents. In this context, if para 2 of the affidavit dated 22.6.16 is considered, then the only logical conclusion which can be drawn is -( 9 )- Civil Revision No.114/2016 that the plaintiff/respondent has discharged its obligation in terms of Order XI Rule 12 of CPC by declaring that the documents are not in possession on the date of submission of the affidavit and the same are in custody of the Court and that, he would furnish the same by procuring the certified copy of the documents. Consequently, the outcome of the question also goes against the applicants/defendants.
13. Lastly, with regard to the question as to whether the contention of the applicants/ defendants that the affidavit is captioned as one under Order 11 Rule 13 of CPC and therefore, the same cannot be given a colour of the one under Order 11 Rule 12 of CPC, suffice it to observe that the law is well settled that nomenclature of the document is of no significance and the contents of the document are to be considered to ascertain the nature of the document. In this regard, Hon'ble Supreme Court in the case of Prakash Roadlines (P) Ltd. vs. Oriental Fire & General Insurance Co. Ltd., (2000) 10 SCC 64 held in the following manner :-
3. It is settled law that a document has to be interpreted not by its nomenclature but what is contained in the said document. A reading of the document shows that it was a deed of assignment in favour of the Insurance Company. We are, therefore, in agreement with the view taken by the High Court. -( 10 )- Civil Revision No.114/2016 Consequently, we do not find any merit in the appeal. It is accordingly dismissed. There shall be no order as to costs.
14. Taking this view of the matter, it is only a formality to observe that the trial Court has not committed any error in rejecting the application under Order 11 Rule 21 of CPC as for the non-production of the documents, the provision under Order 11 Rule 21 of CPC is not attracted and that the affidavit furnished on 22.06.2016 by the plaintiff is a substantial compliance of the mandate provided under Order 11 Rule 12 of CPC. Further, the nomenclature of the affidavit pales into significance in the light of the settled position of law mentioned herein above.
15. Resultantly, the instant revision petition filed by the applicants is hereby dismissed. No order as to costs. (S.K.Awasthi) Judge AK/-