Research › Search › Judgment

Kerala High Court · body

2006 DIGILAW 516 (KER)

Kunjumol George v. Jose Valiyaveedan

2006-08-09

K.S.RADHAKRISHNAN

body2006
Judgment :- Revision petitioners are the defendants in O.S.204 of 1997. O.S.204 of 1997 is a suit filed by the respondent herein for realisation of money. Case of the plaintiff is that the defendants had borrowed a sum of Rs.34,000/- from the plaintiff and executed a promissory note promising to repay the amount with 24% interest. Defendants paid interest up to 1-12-1996 and for the principal amount of Rs.34,000/- issued a cheque to be drawn from the account of first defendant with District Co-operative Bank Ltd. Thiruvananthapuram Branch. Cheque was presented for encashment but was bounced due to insufficient funds. Plaintiff therefore instituted the suit. 2. Defendants filed written statement denying the plaint claim. It was stated that the plaintiff was conducting a chitty under the name and style “Valiyaveedan’s Chitty Fund�. First defendant was subscriber to the said chitty. First defendant had paid 21 installments at the rate of Rs.2000/- per month. Towards the 2nd and 23rd instalments the first defendant had issued two cheques each for Rs.2000/-. During the course of the chitty defendant had borrowed Rs.34,000/- from plaintiff and for repayment of the said amount the defendant had given a promissory note and undated cheque. Defendant was bound to pay only the last two instalments amounting to Rs.4000/- towards the chitty. Plaintiff was examined as PW1. Second defendant was examined as DW1. During the cross examination, PW1 admitted that first defendant was the subscriber of a chitty which was conducted by Valiyaveedan’s Chitty Fund of which plaintiff was the Managing Partner. He had also admitted that the ledger, perade and other records of the chitty are in the chitty office. Defendants then filed IA.1190/98 under Order 11 Rule 14 and Section 151 CPC for directing the plaintiff to produce three items of documents. Plaintiff filed objections stating that defendants have no right to call for the records and the records are not necessary for disposal of the suit. Trial court however, partly allowed the application and the plaintiffs were directed to produce perade and ledger relating to the chitty. It was also directed to produce account books relating to the borrowal of Rs.34,000/- by defendant on 2-8-1994 and the accounts showing payment of interest till 1-12-1996. Plaintiff did not produce those documents, instead he filed IA.1317/98 under Order 47, Rule (1) CPC to review the order. Review petition was dismissed. 3. It was also directed to produce account books relating to the borrowal of Rs.34,000/- by defendant on 2-8-1994 and the accounts showing payment of interest till 1-12-1996. Plaintiff did not produce those documents, instead he filed IA.1317/98 under Order 47, Rule (1) CPC to review the order. Review petition was dismissed. 3. Defendants then filed IA.1316/98 under Order 11 Rule 21 CPC for dismissal of the suit for non compliance of the order directing production of documents. Plaintiff filed objection stating that plaintiff was not in a position to produce the same. Trial court after considering all aspects of the matter found that plaintiff was willfully withholding the records ordered to be produced vide order dated 25-3-1998 in IA.1190/98 and there was a wilful attempt to disregard the order of court and consequently the application filed under Order 11 rule 21 CPC was allowed vide order dated 5-6-1998 and the suit was dismissed in view of the order passed in IA.1316/98. Plaintiff then preferred CMA.65 of 1998 against the judgment in OS.204 of 1997 dismissing the suit for non prosecution under Order 11 Rule 21 before the Additional sub Court, Kottayam. Sub Court allowed the appeal holding that the extreme steps for dismissing the suit was unwarranted. Court held that evidence had been adduced by the parties and the court could evaluate the evidence and for failure of producing the document called for, an adverse inference as contemplated under section 114(g) of the Evidence Act could have been drawn. Aggrieved by the same this civil revision petition has been preferred. 4. Counsel appearing for the revision petitioners Sri. P.B. Krishnan submitted that the appellate court was not justified in interfering with the order passed by the trial court dismissing the suit for noncompliance of the order in IA.1316/98. Counsel submitted that cogent reasons have been state by the trial court for allowing IA.1316/98. Counsel further submitted that the said order was not challenged by the plaintiffs in appeal. Consequently, the order has become final. Counsel further submitted that the suit was dismissed by judgment dated 5–6-1998 in pursuance of order in IA.1316/98. Since the order in IA.1316/98 was not challenged the appellate court was not justified in restoring the suit. 5. Sri. Counsel further submitted that the said order was not challenged by the plaintiffs in appeal. Consequently, the order has become final. Counsel further submitted that the suit was dismissed by judgment dated 5–6-1998 in pursuance of order in IA.1316/98. Since the order in IA.1316/98 was not challenged the appellate court was not justified in restoring the suit. 5. Sri. P.C. Chacko, counsel appearing for the respondent on the other hand contended that the mere fact that plaintiff had filed to produce document as directed by the trial court in its order in IA.1190/98 would not be a ground to non-suit the plaintiff. Counsel submitted, there was no wilful attempt to disobey the order and dismissal of the suit, according to the counsel, was unwarranted. 6. The apex court in Babbar Sewing Machine Co v. Turlok Nath, (AIR 1978 SC 1436) examined the scope of Order 11 Rule 21 CPC and took the view that an order striking out the defence under Order 11 Rule 21 should be made unless there has been obstinacy or contumacy or the part of the defendant or wilful attempt to disregard the order of the court to produce the documents. Court held that even assuming that in certain circumstances the provisions of order 11 Rule 21 strictly enforced, it does not follow that suit can be lightly thrown out or a defence struck out, without adequate reasons. Court reminded that the test laid down is whether the default is wilful. Court held that 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 11 Rule 21, unless the court is satisfied that the plaintiff was wilfully 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. This decision would stipulate that stringent provision of Order 11 Rule 22 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. Court reminded that the rule must be worked with caution, and may be made us of as a last resort. 7. Court reminded that the rule must be worked with caution, and may be made us of as a last resort. 7. The court can evaluate the evidence which are already on record and also can draw an adverse inference as contemplated under section 114 (g) of the Evidence Act due to non-production of records. Drawing of adverse inference for non-production of the document is optional and not obligatory. I am of the view, in such case, court can always take into consideration all facts and circumstances of the case and could draw a presumption in favour of the party who has failed to comply with the order of the court. Refusal to produce certain documents (Order 11 Rule 14) is not a lapse within the meaning of Order 11 rule 21, and the penal consequences, shall not follow as a matter of course. A suit cannot be lightly thrown out or defence struck off without adequate reasons, unless the default of the party is wilful. 8. There is a finding either by the trial court or by the appellate court that there was obstinacy or contumacy on the part plaintiff or there was any wilful attempt to disregard the order of the court Dismissing the suit exercising power under Order 11 rule 21 C.P.C. is of a highly penal nature and ought to be used only in extreme cases and should in no way be imposed unless there is clear failure to comply with the obligations laid down in the rule. In my view no grounds have been made out to take the extreme steps for the dismissal of the suit. I find no reason to grant relief to the plaintiff since plaintiff had not challenged the order passed by the trial court in IA.1316/98. The suit was dismissed vide judgment dated 5-6-98 based on the order passed in IA.1316/98. Order in IA.1316/98 was passed on a petition filed under order 11 Rule 21 CPC. The basic order has not been challenged and has become final so far as the parties are concerned. Under such circumstances I am of the view that the appellate court was not justified in interfering with the judgment of the trial court dismissing O.S.204 of 1997. I am therefore inclined to allow this revision and set aside the order in CMA.65 of 1998. CRP is allowed as above.