ORDER
Being aggrieved by the order dated 19/03/12 passed by X ADJ, Indore in Civil Suit No. 69-A/10, whereby application filed by the appellant under Order XI Rule 21 CPC was dismissed, present appeal has been filed.
Short facts of the case are that the appellant filed a suit for declaration and permanent injunction alleging that the appellant has constructed the house after obtaining the permission. Since there was deviation and the construction was not in accordance with permission, therefore, the appellants moved an appropriate application for compounding the construction raised by the appellants, which was allowed and vide order dated 04/11/99 appellants were directed to deposit a sum of Rs. 5000/-. Appellants deposited the amount, thus the construction raised by the appellants is in accordance with sanctioned plan. It was prayed that the respondents be restrained to demolish any part of the suit property. The suit was contested by the respondents on the ground that the order of compounding the illegal construction raised by the appellant was reviewed by the appellate Committee vide order dated 28/12/99, whereby order dated 04/11/99 was set aside. It was prayed that the suit be dismissed. In the said suit an application was filed by the appellants under Order XI Rule 21 CPC, whereby vide order dated 07/03/11 respondents were directed to disclose on affidavit the facts and documents relating to the order passed by the appellate committee in review. Time was sought by the respondents from time to time and lastly an application was filed by the appellants under Order XI Rule 21 CPC for striking out the defence of the respondents, which was dismissed by the learned Court below with a direction that the respondents shall suffer the consequences, against which present appeal has been filed.
Provision of Order XI Rule 21 CPC reads as under:-
“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 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 the 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.”
After taking into consideration all the facts and circumstances of the case this Court is of the view that the order is not in accordance with law. Respondents have also not filed the reply of the application. What efforts were made by the respondents for complying the order dated 07/03/11 is not on record. It is also not on record that what action has been taken by the respondents against the concerned employees who are in possession of record. In the facts and circumstances of the case, appeal filed by the appellants is allowed and the impugned order passed by the learned Court below is set aside with a direction to the learned Court below to redecide the same as per provisions of law after filing of detailed reply.
With the aforesaid observations, appeal stands disposed of.