LRS OF PANNA LAL v. MOHAMMAD UMAR

Judgment 27/11/2017 Feeling aggrieved by order dated 7th of May 2016, passed by Addl. District Judge, Merta (for short, learned trial Court), appellant-defendant has laid this appeal under Order 43 Rule 1 (f) read with Section 104 CPC. By the order impugned, learned trial Court rejected the application of appellant-defendant under Order 11 Rule 21 CPC. The facts apposite for the purpose of this appeal are that respondent-plaintiff filed a suit for eviction and enhancement of rent against Pannalal, the original defendant. During the pendency of the suit, Pannalal died and therefore his legal (2 of 9) [CMA-2334/2016] representatives appellants were brought on record. When the suit was posted for recording evidence of plaintiff-respondent, at the behest of appellants, an application under Order 11 Rule 12 CPC was submitted for summoning the account books for the period from 11th of May 1994 to 11th of May 2000. The learned trial Court, after hearing arguments on that application, vide order dated 4th of November 2015 asked the respondent-plaintiff to produce account books on oath. The counsel for the respondent- plaintiff, after seeking some time, submitted his affidavit on 19th of January 2016 that those account books are not within his power and possession as the same stand destroyed by afflux of time. Upon receiving this affidavit of the respondent-plaintiff, learned trial Court posted the matter for evidence but feeling disgruntled with the omissions of respondent-plaintiff, appellants submitted an application under Order 11 Rule 21 CPC. In the application it is pleaded by appellants that the respondent-plaintiff has failed to comply with the directions of the Court dated 4th of November 2015, therefore, the suit is liable to be dismissed. On behalf of respondent-plaintiff, its reply was filed. The learned trial Court, thereafter, heard arguments and by the order impugned rejected the application of appellants. Learned counsel for the appellants, Mr. S.L. Jain, has vehemently argued that the learned trial Court has seriously erred in rejecting their prayer for dismissal of the suit. Mr. Jain would contend that non-compliance of the order for discovery entails dismissal of the suit of plaintiff or striking out defence of the (3 of 9) [CMA-2334/2016] defendant but the learned trial Court has not examined the matter in right perspective. Learned counsel, therefore, submits that the impugned order calls for interference in exercise of appellate jurisdiction. In support of his arguments, learned counsel has placed reliance on following legal precedents: (1) Union of India Vs. Ibrahim Uddin & Anr. [(2012) 8 SCC 148] (2) Indore Development Authority, Indore Vs. Satyapal Anand & Anr. (AIR 2000 Madhya Pradesh 74). E.converso, learned counsel for the respondent, Mr. Vishal Sharma, submits that Order 11 Rule 12 CPC simply envisage an application for discovery of documents and it is only under order Rule 14 Order 11 that the Court can pass an order for production of documents. Learned counsel has also submitted that Rule 13 of Order 11 also makes it abundantly clear that a party, against whom any order is made, can submit an affidavit incorporating objections to produce the documents. Mr. Sharma has urged that discretionary power conferred on the Court under Order 11 Rule

21 CPC can only be exercised when default by a party is wilful or party is guilty of contumacious conduct. Elaborating his submissions in this behalf, learned counsel would contend that power under Order 11 Rule 21 is to be exercised very sparingly as last resort. Lastly, learned counsel contends that the learned trial Court, upon examining the matter in its entirely, in its discretion, has rightly declined the prayer of appellant, and therefore, the said order is not liable to be interfered with in exercise of appellate jurisdiction. In support of his arguments, Mr. Sharma has placed reliance on following judgments: (4 of 9) [CMA-2334/2016] (1) M/s. Babbar Sewing Machine Co. Vs. Tirlok Nath Mahajan (AIR 1978 SC 1436). (2) Hindustan Petroleum Corporation Ltd. Vs. Ram Bagh Palace Hotel Pvt. Ltd. & Anr. [2013 (2) DNJ (Raj) 594]. I have heard learned counsel for the parties, perused impugned order and other materials available on record. While it is true that learned trial Court has passed order dated 4th of November 2015 for production of required documents but the crucial question which has emerged for consideration cannot be examined in isolation to the factual backdrop of the case. Undeniably, the suit for eviction and recovery of arrears of rent was filed by the respondent-plaintiff in December 2000 and since then almost 17 years have passed. It is also noteworthy that after passing of order dated 4th of November 2015, respondent-plaintiff has sought time to produce the requisite documents but eventually he could not lay his hands on the account books. Therefore, in such a situation he tendered affidavit before the learned trial Court raising objection for non- production of documents. The respondent-plaintiff has also spelt out the reasons for not producing the documents with a positive assertion that the requisite account books stand spoiled/destroyed by efflux of time. Thus, in that background it may not be appropriate to draw an inference that respondent-plaintiff has made an attempt to disregard the order of the Court or he is guilty of contumacious conduct. (5 of 9) [CMA-2334/2016] In Ibrahim Uddin & Anr. (supra), the Supreme Court, while interpreting Order 11 Rule 14 CPC, made following observations: Under Rule 14 of Order XI, the court is competent to direct any party to produce the document asked by the other party which is in his possession or power and relating to any material in question in such suit. Rule 15 Order XI provides for inspection of documents referred to in the pleadings or affidavits. Rule 18 thereof, empowers the court to issue order for inspection. Rule 21 thereof provides for very stringent consequences for non-compliance with the order of discovery, as in view of the said provisions in case the party fails to comply with any order to answer interrogatories or for discovery or inspection of documents, he shall, if he is a Plaintiff, be liable to have his suit dismissed for want of prosecution and if he is 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. The Court, in the verdict, has simply dilated on the powers under Order 11 Rule 14 CPC but not made any observation about the contingencies as to when stringent consequences for non- compliance are to follow. Therefore, this decision is clearly distinguishable. In Satyapal Anand (supra), Madhya Pradesh has also made it clear that provisions of Order 11 Rule 21 are to be used at appropriate stage for punishing a party who is in habit of committing default willfully and obstinately. If the impugned order is examined in that background, then, it would ipso facto reveal that the Court below has not found wilful disobedience or (6 of 9) [CMA-2334/2016] obstinately by the respondent. As such, this judgment too cannot render any assistance to the appellant. The Supreme Court in M/s. Babbar Sewing Machine Co. (supra) has examined the provisions of Order 11 Rule 21 CPC meticulously and held: It is a travesty of justice that the trial court should have, in the facts and circumstances of the case, passed an order striking out the defence of the defendant under Order XI, Rule 21 and that the High Court should have declined to set it aside. The penalty imposed by Order XI, Rule 21 is of a highly penal nature, and ought only to be used in extreme cases, and should in no way be imposed unless there is a clear failure to comply with the obligations laid down in the rule. Order XI, Rule 21 of the CPC reads:

21. Where any party fails to comply with any order to answer interrogatories, or for discovery of 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 accordingly.

Section 136 of the CPC, 1882, corresponding to Order XI, Rule 21 of the C.P.C. 1908, was based upon Order XXXI, Rule 20, now replaced by Order XXIV, Rule

16 framed under the Judicature Act. The practice of the English Courts is, and it has always been, to make the order a conditional one, and to grant a little further time for compliance. In practice this provision is virtually obsolete. Even assuming that in certain circumstances the provisions of Order XI, Rule 21 must be strictly enforced, it does not follow that a suit can be lightly thrown out or a defence struck out, without adequate reasons. The test laid down is whether the default is wilful. In the case of a plaintiff, it entails in the dismissal of the suit and, therefore, an order for dismissal ought not be made under Order XI, Rule 21, (7 of 9) [CMA-2334/2016] unless the court is satisfied that the plaintiff was wilfully withholding information by refusing to answer interrogatories or by withholding the documents which he sought to discover. In such an event, the plaintiff must take the consequence of having his claim dismissed due to his default, i.e. by suppression of information which he was bound to give: Denvillier v. Myers. (1883) WN 58. In the case of the defendant, he is visited with the penalty that his defence is liable to be struck out and to be placed in the same position as if he had not defended the suit. The power for dismissal of a suit or striking out of the defence under Order XI, Rule 21, should be exercised only where the defaulting party fails to attend the hearing or is guilty of prolonged or inordinate and inexcusable delay which may cause substantial or serious prejudice to the opposite party. It is well settled that the stringent provisions of Order XI, Rule 21 should be applied only in extreme cases, where there is contumacy on the part of the defendant or a wilful attempt to disregard the order of the court is established. x x x x x x The principle governing the court's exercise of its discretion under Order XI, Rule 21, as already stated, is that it is only when the default is wilful and as a last resort that the court should dismiss the suit or strike out the defence, when the party is guilty of such contumacious conduct or there is a wilful attempt to disregard the order of the court that the trial of the suit is arrested. Applying this test, it is quite clear that there was no wilful default on the part of the defendant of the court's order under Order XI, Rule 18(2) for the production of documents for inspection, and consequently, the order passed by the trial court on 23 May, 1967, striking out the defence of the defendant must be vacated, and the trial must proceed afresh from the stage where the defendant was not permitted to participate. This Court, in Hindustan Petroleum Corporation Ltd. (supra), while examining Order 11 threadbare observed that non- compliance of the order of the Court under Rule 12 of Order 11 CPC cannot entail dismissal of plaintiffs suit or striking out defendants defence. The Court held: (8 of 9) [CMA-2334/2016] From the conjoint reading of the above mentioned Rules, it transpires that Rule 12, deals with the power of the Court to pass necessary orders on the application made by any party to the suit seeking direction against the other party to make discovery on oath of the documents which are or have been in his possession or power, relating to any matter in question therein. The said rule as such does not deal with the power of the Court to direct the production of documents. The power of the Court to direct the parties to produce the documents is there in Rule 14. However, as per Rule 13, the party against whom any order under Rule 12, has been passed, has any objection against the production of the documents, then he has to file an affidavit in Form No.5 contained in Appendix- C. Thus, there appears to be some anomaly in the said provisions in as much as, when the Court passes the order under Rule 12, directing the party to make discovery of documents, there is no question of the party, against whom such order has been passed, filing the affidavit objecting the production of the documents. The order for production of documents could be made by the Court under Rule 14 and not under Rule 12. Further, the non compliance of the order passed by the Court regarding the discovery or inspection of the documents may result into dismissal of plaintiff's suit or striking out of the defendant's defence under Rule 21, however, non compliance of the order for production of the documents is not covered under Rule 21. The Apex Court, in case of M.L. Shethi vs. R.P. Kapur, AIR 1972 SC 2379, has very succinctly dealt with these provisions contained in Rules 12, 13, 14 and

21 of Order XI, and observed as under in para 5:

5....When the Court makes an order for discovery under the rule, the opposite party is bound to make an affidavit of documents and if he fails to do so, he will be subject to the penalties specified in Rule 21 of Order

11. An affidavit of documents shall set forth all the documents which are, or have been in his possession or power relating to the matter in question in the proceedings. And as to the documents which are not, but have been in his possession or power, he must state what has become of them and in whose possession they are, in order that the opposite party may be enabled to get production from the persons who have possession of them (see Form No.5 in Appendix C of the Civil Procedure Code). After he has disclosed the documents by the affidavit, he may be required to produce for (9 of 9) [CMA-2334/2016] inspection such of the documents as he is in possession of and as are relevant. So far as the facts of the present case are concerned, it transpires that the application was filed by the plaintiff under order xi, rule 12, 14 & 15 read with section 151 of c.p.c. seeking production of certain documents as mentioned in the said application. The plaintiff as such had not sought for any discovery of documents in the said application. Further, though there was no order passed by the trial Court for the discovery of the documents under Rule 12, the defendant resisted the said application of the plaintiff by filing reply and thereafter the trial Court passed the order dt. 01.02.2011 directing the defendant to produce the documents as sought for by the plaintiff. At this juncture, it requires to be noted that the production of documents could be ordered under Rule

14 of the said Order, and that non-production of the documents pursuant to the order of the Court would not entail stringent consequence of defence of the defendant being struck out under Rule 21. The defence of the defendant could be struck out under Rule 21 only when the party fails to comply with the order of the Court to answer the interrogatories or for discovery or inspection of the documents. In the instant case, the trial Court had not passed any order either for interrogatories or discovery or inspection of documents and hence stricto-sensu the defence of the petitioner- defendant could not have been struck out on the ground of the non-compliance of the order of production of the documents.

Upon examining the matter threadbare in the light of law laid down by Supreme Court, I am afraid, no fault can be found with the impugned order. The learned trial Court in its discretion has, therefore, rightly declined prayer of the appellant for dismissal of suit. Resultantly, I do not find any merit in this appeal and the same is, therefore, dismissed. (P.K. LOHRA), J.