Chinnappan vs Ramachandran

Ratnam, J.—The plaintiff in O.S. 12 of 1982, Sub-Court, Pattukotai, is the appellant in this civil miscellaneous appeal. The appellant

instituted that suit against the respondent herein and others praying for the relief of partition and separate possession of his one-fourth share in the

A and B schedule properties. That suit is pending. In I. A. 219 of 1983 in O.S. 12 of 1982, filed under Order 11, Rule 14 and Section 151,

C.P.C. the petitioner prayed that the respondent may be directed to produce into court certain documents detailed in the application. On 12-4-

1983, the learned Subordinate Judge passed an order directing the respondent herein to produce the documents set out in I. A. 219 of 1983,

Later on 13-9-1983, learned counsel for the respondent made an endorsement to the effect that the documents a re not available. Thereupon, the

appellant filed I. A. 562 of 1983 in O. S. 12 of 1982 purporting to be under Order 11, Rule 21, C.P.C. praying that the defence off the

respondent in the suit should be struck but and that he should be placed in such a position as if he had not defended the claim of the appellant in the

suit for partition in O.S. 12 of 1982 instituted by the appellant. In the affidavit filed in support of that application, the appellant stated that the order

directing the production of the documents by the respondent was passed after hearing the respondent and if the documents were hot available, then

he should have stated so prior to the passing of the order on 12-4-1983, and the subsequent endorsement made by the learned counsel for the

respondent to the effect that the documents are not available amounts to a wilful refusal to obey the directions of Court, and for the failure of the

respondent to produce material document despite an order of Court, the legal consequences in terms of Order 11, Rule 21, C.P.C. would follow

and, therefore, the defence of the respondent in the suit should be struck out. The respondent in his counter-affidavit, reiterated that the document

directed to be produced were not in his possession of custody and that it was not his intention to disobey or disregard any direction of Court. An

objection that the application filed by the appellant under Order 11, Rule 21, C.P.C. is not maintainable on the facts and circumstances of the case

was also raised. The learned Subordinate Judge, Pattukottai, held that the appellant had not established by prima facie evidence that the

respondent had the custody of the documents directed to be produced and that the non-product ion of the documents by the respondent had not

been established to be wilful Dealing with the objection that the application under Order 11, Rule 21, C.P.C. was misconceived and not

maintainable, the learned Subordinate Judge held that the refusal to produce the documents under Order 11, Rule 14, C.P.C. would not fall within

the scope of Order 11, Rule 21, C.P.C. and, therefore, the provisions of Order 11, Rule 21, C.P.C. could not be invoked by the appellant. On

the aforesaid conclusions, the application filed by the appellant in I. A. 562 of 1983 was dismissed. It is the correctness of this that is questioned in

this civil miscellaneous appeal.

Learned counsel for the appellant contended that the order for the production of the documents was passed after hearing the learned counsel for

the respondent and it even at the time of the passing of that order the respondent did not have the custody of the documents directed to be

produced, that fact could have been brought to the notice of the court, which, however, was not done, but after the lapse of nearly five months

after the order for production of the documents, an endorsement was made to the effect that the documents are not available and this clearly

indicated contumacy on the part of the respondent or a wilful attempt to disregard the order of Court for production of documents justifying the

striking out of the defence of the respondent in the suit. Per contra, learned counsel for the respondent submitted that the application filed by the

appellant under Order 11, Rule 21, C.P.C. was not maintainable, as there was no failure on the part of the respondent to a answer interrogatories

or failure to comply with an order for discovery or inspection of documents and a mere failure to produce documents as directed by the Court

would not fall within the scope of Order 11, Rule 21, C.P.C. Strong reliance in this connection was placed by the learned counsel for the

respondent upon the decision in Sithamalli Subbayyer Vs. M.L.M. Ramanathan Chettiar, and S.P.S.R. Subramania Ayyar Vs. C. Bomer Cooty

Haji, .

There is no dispute that the appellant secured in I.A. 219 of 1983, an order under Order 11, Rule 14, C.P.C. directing the respondent herein to

produce into court five items of documents and despite a direction by court to the respondent to produce the documents called for, the documents

were not produced on the ground that they were not available It is true that if the documents, the production of which was asked for by the

appellant, were not available even a t the time when the court proceeded to pass the order directing the production, the respondent could have

stated so. However, the failure of the respondent to bring it to the notice of the Court even then that the documents were not in his custody cannot

be equated to contumacy on the part of the respondent or even be characterised as a wilful attempt to disregard the order of the Court, especially

when there is no material available on record to show that the respondent in fact had the custody of those documents, but had deliberately and

wilfully retained from producing them into court in utter disregard of direction of court. No doubt, the respondent, by means of an endorsement

through his counsel, belatedly brought to the notice of the Court that the documents directed to be produced were not available. Merely from this

circumstance, it cannot be readily assumed that the respondent, with the intention of disobeying and disregarding orders of Court, did not produce

the documents directed to be produced. There is, therefore, no question of the respondent being guilty of contumacious conduct or a wilful attempt

to disobey the direction of court It would be relevant in this connection to bear in mind the caution administered by the Supreme Court in Babbar

Sewing Machine Company Vs. Trilok Nath Mahajan, , to the effect that an order under Order 11, Rule 21, C.P.C. striking out the defence should

be worked with caution and should not be made unless there has been obstinacy or contumacy on the part of the defendant or a wilful attempt to

disregard an order of court. Earlier, it has been seen how on the facts of this case, there is no evidence of contumacious conduct on the part of the

respondent or a wilful attempt on his part to disobey orders of court. In view of this, in the present case, there is no justification for resorting to and

exercising the drastic powers of Court under Order 11, Rule 21, C.P.C. to strike out the defence of the respondent in the suit, even on the

assumption that the application filed by the appellant under Order 11, Rule 21, C.P.C. is maintainable.

It may now be considered whether the application filed by the appellant before the court below for the exercise of powers under Order 11, Rule

21, C.P.C. was maintainable. Order 11, Rule 21, C.P.C. to the extent to which that provision is relevant on the facts of this case, states that where

any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, he shall, if a defendant, 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 on such application accordingly, after notice to the parties

and after giving them a reasonable opportunity of being heard. It is thus seen that the remedy of having the defence of a defendant struck out would

arise only when he fails to comply with an order to answer interrogatories or for discovery or inspection of documents and not in other cases. In

this case, the respondent was not delivered interrogatories for being answered by an order of Court under Order 11, Rule 1, C.P.C. Likewise, the

respondent was not directed by an order of court to make discovery on oath of the documents in his possession or power relating to any matter in

question in the suit under Order 11, Rule 12, C.P.C. No order for inspection of documents was also passed against the respondent under Order

11, Rule 12, C.P.C. The exercise of the power vested in the Court to strike out the defence of a defendant and to place him in the same position

as if he had not defended the suit is limited under Order 11, Rule 21, C.P.C. to cases where the defendant fails to comply with an order to answer

interrogatories or an order for discovery or inspection of documents. In other words, an order under Order 11, Rule 21, C.P.C. cannot be passed

in cases falling outside the purview of Order 11, Rules 12 and 18; C.P.C. In Sithamalli Subbayyer Vs. M.L.M. Ramanathan Chettiar, , an order

was passed by Court under Order 11, Rule 14, C.P.C. directing the plaintiff to produce some documents upon oath and on the production of

some, documents, the defendant inspected a few of them and finding that some documents directed to be produced were not produced, applied to

the court to take action under Order 11, Rule 21, C.P.C. dismissing the suit. That application was dismissed holding that Order 11, Rule 21,

C.P.C. did not apply to cases of non-compliance with an order for production and, the dismissal of the application was upheld by this Court. In so

holding, Krishnan J. with whom Waller J. agreed, observed as follows-

.......An order for production is quite different from an order for discovery or an order for inspection and cannot be said to imply either. It is

impossible to hold therefore that in the present case the order for production was anything more than for bare production in court of specified

documents.... Rule 14 contemplates further orders being parsed on the documents being produced. An order for inspection of documents may, I

think, therefore, be passed under that rule itself after hearing parties; Rule 12 also enables a party to obtain an order for inspection. The Form 6

cannot be relied on as showing that an order under Rule 14, involves an order for inspection for documents may be directed to be produced in

court for various reasons, for example, for preventing tampering with them.

...It was suggested that if we do not apply the provisions of Rule 21 in cases of orders for production there will not be a sufficiently effective

method to make the party obey the order of the Court, There is no basis for this argument, for there are several ways of making a party produce a

document shown to be in his possession and for which privilege is not established; and the presumption that arises against a party who is called

upon and does not produced document in his possession or power is in itself of serious consequence to him.

In the view, I take that Rule 21 does not apply to orders for production, the appeal fails.

It is clear from the decision referred to above, that failure to produce documents directed to be produced by an order of Court passed under

Order 11, Rule 14, C.P.C. does not fall under Order 11, Rule 21, C.P.C. To similar effect is the decision in S.P.S.R. Subramania Ayyar Vs. C.

Bomer Cooty Haji, . In that case also, for failure to produce certain documents pursuant to orders passed under Order 11, Rule 14, C.P.C. the

suit was dismissed and in considering the correctness of this order, Pandalai J. observed as follows -

..........From the terms of the Judge''s order as well as from the previous orders for production which are on the record, there is no doubt that

those orders were passed under Order 11, Rule 14, C.P.C. and that respondent-defendant No. 1 applied for orders under that provision. This

being so, it would be enough to dispose of this appeal to say that the learned Judge had no authority to dismiss the plaintiffs suit for disobedience of

an order under Order 11, Rule 14, C.P.C. That was decided in so far as this Court is concerned in Sithamalli Subbayyer Vs. M.L.M. Ramanathan

Chettiar, which followed a decision of the Allahabad High Court in The Lyalpur Sugar Mills and Co. and Another Vs. The Ram Chandra Gur

Sahai Cotton Mills and Co.,

It is thus seen that this Court has consistently taken the view that a failure to produce documents directed to be produced by an order of court

passed under Order 11, Rule 14, C.P.C. does not enable the court to exercise its powers under Order 11, Rule 21, C.P.C. In view of this, the

application filed by the appellant seeking the assistance of the court to exercise its powers under Order 11, Rule 21, C.P.C. was misconceived and

not maintainable. On this ground also, the dismissal of the application has to be upheld though it may still be open to the court, in the course of the

trial of the suit, to draw such adverse inference, if it is established on evidence that the respondent had the custody of the documents directed to be

produced, but did not produce them. Consequently, the civil miscellaneous appeal fails and is dismissed. There will be, however, no order as to

costs.