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2008 DIGILAW 1622 (MAD)

G. Jagadeesan v. R. Balasubramaniam

2008-06-09

S.RAJESWARAN

body2008
ORDER 1. This Civil Revision Petition is filed challenging the order dated 28.6.2007 passed by the learned Additional District Sessions Judge, Fast Track Court No. II, Coimbatore in I.A. No. 196 of 2007 in O.S. No. 748 of 2004 dismissing the application filed by the revision petitioner/plaintiff to strike off the defence set up by the respondent/second defendant in his written statement for non compliance of production of documents referred to in his written statement. 2. The plaintiff in O.S. No. 748 of 2004 on the file of I Additional District Court (Fast Track Court No. II), Coimbatore is the revision petitioner before this Court. He is aggrieved by the order of the trial Court dated 28.6,2007, by which his application filed in I.A. No. 196 of 2007 under Order 11 Rule 15, 16 & 21 of C.P.C. was dismissed by the trial Court. 3. The petitioner/plaintiff filed O.S. No. 748 of 2004 for Specific Performance of the sale agreement dt.12.9.1996 said to have been executed by the first defendant in the suit, originally the suit was filed against only one defendant, who is the brother of the second defendant. Later on, the respondent herein filed I.A. No. 1264 of 1998 to implead himself as a party to the suit and the trial Court allowed the application and the respondent herein has been impleaded as the second defendant in the suit. The respondent/second defendant filed a written statement in June 2005, wherein he has stated that he is the owner of the suit schedule property and the suit has been filed as a result of collusion between the petitioner/plaintiff and the first defendant as the first defendant has no title and he could not enter into any agreement with any one for selling the same. In his written statement, the respondent/second defendant referred to so many Court proceedings, namely, O.S. No. 1115 of 1993, O.S. No. 1 of 1994 (renumbered as O.S. No. 730 of 1998), O.S. No. 597 of 1996, O.S. No. 3566 of 1996 O.S. No. 1825 of 1997 and O.S. No. 805 of 1995 (renumbered as O.S. No. 730 of 1998) involving him and the property. 4. The suit was posted for trial on 6.3.2007. 4. The suit was posted for trial on 6.3.2007. At that time, the petitioner/plaintiff filed I.A. No. 196 of 2007 praying to pass an order to strike off the defence set up by the respondent/second defendant in his written statement for the non compliance of the production of the documents referred to in his written statement. 5. In the affidavit filed in I.A. No. 196 of 2007, the petitioner/plaintiff has stated that the respondent/second defendant in his written statement, referred to numerous suits, purported to have been filed between himself, his father, first defendant and his wife and he was not a party to those proceedings. Hence, he tendered a notice in Form No. 7 of Appendix C of C.P.C. to the respondent/second defendant to cause production of those documents. Instead of producing the documents, the respondent/second defendant filed a memo stating that he is not liable to produce those documents and if the petitioner/plaintiff was in need of those documents, he himself could obtain them. Hence, he filed I.A. No. 196 of 2007 for the aforesaid relief. 6. This application was resisted by the respondent/second defendant by filing a counter affidavit, wherein he has stated that when the suit was listed for his evidence on 6.3.2007, the petitioner/plaintiff instead of letting in evidence, gave a notice requesting him to produce the certified copies of decree and judgment in a number of cases, failing which, he filed a memo stating that the petitioner/plaintiff could get the certified copies if he was in need of the same. The respondent/second defendant pointed out that the suit was already 9 years old end the petitioner/plaintiff was not interested in proceeding with the suit. The respondent/second defendant further contended that the Order 11 Rule 15 C.P.C. does not entitle a person to ask for the documents referred to in the pleadings after the settlement of issue. It was further stated that the relevancy of the documents for the purpose of proving the suit sale agreement was also not mentioned by the petitioner/plaintiff. The respondent/second defendant further contended that the Order 11 Rule 15 C.P.C. does not entitle a person to ask for the documents referred to in the pleadings after the settlement of issue. It was further stated that the relevancy of the documents for the purpose of proving the suit sale agreement was also not mentioned by the petitioner/plaintiff. Further, Order 11 Rule 21 C.P.C. will apply only when the Court has passed an order directing a party to produce a document and even thereafter, that party failed to produce the same, no Court order has been passed directing him to produce the certified copies and hence he prayed for the dismissal of I.A. No. 196 of 2007 as not maintainable also. 7. The trial Court by order dated 28.6.2007 dismissed I.A. No. 196 of 2007 and aggrieved by the same, the above Civil Revision petition has been filed under Article 227 of the Constitution of India. 8. Heard the learned counsel for the petitioner/ plaintiff and the learned counsel for the respondent/second defendant. I have also gone through the documents and records submitted by them in support of their submissions. 9. Admittedly, I.A. No. 196 of 2007 was filed by the petitioner/plaintiff under Order 11 Rule 15, 16 and 21 of C.P.C. seeking to strike off the defence set up by the respondent herein in his written statement. 10. Under Order 11 Rule 15 C.P.C. every party to a suit is entitled to given notice to the other party in whose pleadings reference is made to any document to produce such documents for inspection. 11. When a party is served with notice under Order 11, Rule 15 of C.P.C. fails to offer the documents for inspection, on an application of the party deserving the documents, the Court under Order 11 Rule 18 C.P.C. make an order directing the party to make the documents available for inspection. Before passing an order, the Court has to satisfy itself the relevancy of the documents sought for to decide the lis, the entitlement of the party to inspect the same and that they are in possession of the other party. 12. Before passing an order, the Court has to satisfy itself the relevancy of the documents sought for to decide the lis, the entitlement of the party to inspect the same and that they are in possession of the other party. 12. If any party fails to comply with the order of the Court for inspection of documents, if the defaulting party is a plaintiff, the suit, is liable to be dismissed for want of prosecution and if the defaulting party is a defendant his defence is liable to be struck out and he would be placed in the same position as if he has not defended the suit at all. 13. In the present case, though the petitioner/plaintiff tendered a notice in Form VII to the respondent to cause production of the document as provided under Order 11 Rule 15 C.P.C., he did not take steps to file an application before the Court below under Order 11 Rule 18 C.P.C. stating the relevancy of documents and his entitlement to them. He has straightaway filed I.A. No. 196 of 2007 under Order 11 Rule 21 C.P.C. to strike off the defence, which in my opinion is contrary to the provisions of C.P.C. and his application itself is not maintainable. 14. The cause of action for filing a petition under order 11 Rule 21 of C.P.C. praying to strike off the defence would arise only when the Court has ordered positively under Order 11 Rule 18 C.P.C directing the other party to produce the documents for inspection. 15. Admittedly, in the present case, no order has been obtained from the trial Court under Order 11 Rule 18 C.P.C. directing the respondent herein to produce the documents and therefore the application filed in I.A. No. 196 of 2007 is misconceived and the same was rightly rejected by the trial Court. 16. I do not find any illegality nor infirmity in the order passed by the trial Court and accordingly, the civil revision petition is dismissed. No costs. Connected M.P. No. 1 of 2008 is also dismissed. Revision dismissed.