SMT B K GEETHA v. SMT SHARADHAMMA

1. Heard the learned Counsel for the appellants and the respondent.

2. Perused the records.

3. Appellants have called in question the order dated 26.03.2018 passed by the learned IV Addl. City Civil & Sessions Judge, Bengaluru, in O.S.No.25469/2015, in rejecting IA-IV/2017 filed under Order XI Rule 21 CPC and ordered to continue the suit proceedings before the Court. MFA 5339/2018

4. The main contention of the appellants before the Trial Court as could be elucidated from IA-IV/2017 is, that the plaintiff has filed a suit against the defendants for declaration and for such other reliefs. Inter alia, defendants have also filed the application under Order XI Rules 15 & 16 CPC seeking direction to the plaintiff to produce certain documents which are referred to in the plaint and also in Form No.7 notice was also given to the plaintiffs advocate. Inspite of passing of the orders by the Court, those documents were not produced and plaintiff has stated that, the documents were not with him and he required some more time and ultimately he has stated that the documents were produced before the Investigating Officer of Rajagopala Nagar Police Station, Bengaluru, in connection with PCR No.8125/2015, wherein, in that case B report has been submitted. In that view, defendants have stated that, as the said documents were not produced inspite of the order passed by the Court, defendants have invoked the above said provision for dismissal of the suit or reject the plaint on that ground itself on costs. MFA 5339/2018

5. The Trial Court has dismissed the said application on various grounds. In this context, without going into the details of the grounds urged therein, it is worth to refer herein the decision of the Apex Court in the case of M/S. BABBAR SEWING MACHINE CO. VS TIRLOK NATH MAHAJAN AIR 1978 SC 1436, wherein the Apex Court has made the following observation exactly on the point under Order XI Rule 21 CPC, which reads as under: An order striking out the defence under O.11, R.21 should be made unless there has been obstinacy or contumacy on the part of the defendant or willful attempt to disregard the order of the court, to produce the documents. Even assuming that in certain circumstances the provisions of O.11, R.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 willful. 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 O.11, R.21, unless the court is satisfied that the plaintiff was willfully MFA 5339/2018 withholding information by refusing to answer interrogatories or by withholding the documents which he ought 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. In the case of the defendant, he is visited with the penalty that his defence is

6. Though the said provision under Order XI Rule 21 CPC does not use the wordings intentional default or willful default, but after analyzing the said provision, the Apex Court has made an observation that unless the court is satisfied that, the plaintiff had willfully withheld the information which he ought to have discovered, in such an event, plaintiff must take the consequence of having his claim dismissed due to his default. The Apex Court also observed that even assuming that in certain circumstances the provisions of Order XI Rule 21 CPC must be strictly enforced, it does not follow that a suit could be lightly thrown out without adequate reasons. Therefore, when the Apex Court has made an observation that willful or MFA 5339/2018 deliberate or intentional act of a particular party in not furnishing the details or in producing documents is alleged, unless it is satisfactorily established, the suit cannot be dismissed or the defence cannot be struck of.

7. In my opinion, in order to establish whether there was any willful or deliberate or intentional act, some opportunity should be given to the parties to explain why the party has acted in such manner in not providing the information or producing the documents in such manner. Therefore, the Trial Court has rightly dismissed the application providing opportunity to the parties to establish the same during the trial. It is made clear that during the course of evidence, if it is established by the defendants that the plaintiff is willfully or deliberately or intentionally not furnishing such information or producing the documents, the Court is at liberty to draw adverse inference so far as that aspect is concerned, if law provides for the same. MFA 5339/2018

8. Therefore, I do not find any strong reasons to interfere with the order passed by the Trial Court in ordering for continuation of the suit. Hence, the appeal is devoid of merits and the same is liable to be dismissed. Accordingly, the appeal is dismissed with the above said observation.

9. IA-1/2018 does not survive for consideration as the main appeal itself is dismissed, and therefore, the same is also dismissed. Sd/- JUDGE