Pranab Kumar Deb, J.:— The Court: The application filed by the defendant for dismissal of the suit in terms of Order XI, Rule 21 CPC and for stay for other proceedings till disposal of the application is taken up for hearing.
In moving the application, the learned Counsel for the petitioner/defendant has submitted that despite this Court issuing an order way back on 29th November, 2007 with a direction upon the parties to exchange the documents and for inspection of the aforesaid documents within 15 days from the date of discovery of the documents, the plaintiff did nothing on its part and, as such, inspection of the documents disclosed by the plaintiff could not be done on behalf of the defendant. Drawing the attention of the Court to the series of letters exchanged between the parties, as mentioned in Annexures B, C, D, E, F, G, and H it is submitted that the defendant right from the very beginning made an earnest effort for inspection of the documents. However, their efforts were foiled by the deliberate attempt of the plaintiff by not providing eligible documents for inspection. What the plaintiff eventually did was to supply some new documents in contravention of the earlier directions of this Court. In view of non compliance of the direction of the Court, prayer has been made on behalf of the defendant for dismissal of this suit for want of prosecution as provided in Order XI, Rule 21 CPC.
Challenging the contentions of the petitioner/defendant that the order of the Court has not been complied with, Mr. Chowdhury representing the plaintiff has submitted that the plaintiff supplied the copies which he received from the defendant itself. Since the documents relating to statement of account was found rather illegible, the plaintiff typed it out again to make it legible one. As regards the other documents i.e graph showing the trend of movement of price of silver, it is submitted that the plaintiff down-loaded the figure and graph from the internet. Only the time and the date are found different in view of the graph being done at a later date.
As provided in Order XI Rule 21, whenever party fails to comply with any order relating to inspection of documents, he shall, if a plaintiff, be liable to have the suit dismissed for want of prosecution. From the series of correspondence it is evident that the plaintiff had never shown any intention to defy the order of the Court. The disclosure of documents was made long way back. What was available was also offered for inspection. Since some of the documents are found illegible, efforts were made to have it retyped and reloaded. This is what has been offered to the defendant for inspection. I do not find any reason as to why the defendant should refuse inspection of the documents. There is no substance in the application for dismissal of the suit for want of prosecution and, as such, the application is dismissed.
Since fresh legible copies are offered for inspection, the defendant should be given a little time for inspection of the documents. Let the suit be fixed for hearing on 27 February 2009. Inspection of the documents is to be made in the meantime.
The copies have already been supplied to the defendant for having fresh inspection.
The application is treated as on the day's list and disposed of.
All parties concerned are to act on a xerox signed copy of this order upon the usual undertakings.